### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 1635

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

J ASON P ERRY

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Evansville Division.

No. 13

‐ cr

‐ 57

— Richard L. Young

, Judge

.

____________________

A RGUED N OVEMBER 9, 2016

— D ECIDED J ULY 6, 2017

____________________

Before B AUER and K ANNE

, Circuit Judges

, and F EINERMAN

,

District Judge

. *

F EINERMAN

, District Judge

. Jason Perry pleaded guilty to

two counts under 18 U.S.C. § 922(g)(1) for being a felon in

possession of a firearm and ammunition. The district court

sentenced him to 360 months’ imprisonment upon finding

that three of his prior felonies, including two burglary con

‐

* Of the Northern District of I llinois, sitting by designation.2 No. 16

‐ 1635

victions under Indiana law, qualified as “violent felonies”

under the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e). Perry argues on appeal that the enhancement was

improper because Indiana burglary is not an ACCA predi

‐

cate offense. He also contends that the two felon in posses

‐

sion counts are duplicative and should have been merged at

sentencing. We affirm.

I. Background

At approximately 8:10 a.m. on May 22, 2013, Perry

bought a box of 12

‐ gauge shotgun shells at a Wal

‐ Mart in

Princeton, Indiana. About three hours later, police were dis

‐ patched to a Mexican restaurant, where Perry was arguing

with his ex

‐ girlfriend Jessica Tice about visitation with their

13

‐ year

‐ old son. The officers asked Perry to leave, and he

drove away in his pickup truck. He returned less than an

hour later, confronted Tice in the restaurant parking lot, and

shot her to death with a 12

‐ gauge shotgun in front of their

son and Tice’s mother. The police arrested Perry shortly

thereafter, and found the murder weapon and ammunition

in his truck.

Petty was convicted of murder in state court and re

‐

ceived an 85

‐ year sentence, with fifteen years suspended to

probation. In federal court, Perry was charged with two

counts under § 922(g)(1)—one for being a felon in possession

of a firearm, and the other for being a felon in possession of

ammunition—and he pleaded guilty to both. At sentencing,

the district court found that Perry qualified for an enhanced

sentence under ACCA because he had three prior convic

‐

tions for a “violent felony” as defined in § 924(e)(2)(B). Two

of those convictions were for burglary in Indiana, and the

third was for battery resulting in serious bodily injury.No. 16

‐ 1635 3

Perry argued at sentencing that the two felon in posses

‐

sion counts were identical and should merge. The remedy he

suggested was for the court to make the sentences on the

two counts run concurrently. Without explicitly addressing

Perry’s merger argument, the district court imposed a 360

‐

month prison sentence on each count, running those sen

‐

tences concurrently to each another and to the state sentence.

II. Discussion

ACCA imposes a fifteen

‐ year minimum sentence on de

‐

fendants convicted under § 922(g)(1) who at the time of the

offense had at least three prior convictions for a “violent fel

‐ ony.” 18 U.S.C. § 924(e)(1). ACCA defines “violent felony” in

relevant part as any felony “that

... is burglary.” 18 U.S.C.

§ 924(e)(2)(B)(ii).

The term “burglary” in § 924(e)(2)(B)(ii) does not encom

‐

pass all burglaries, but only “generic” burglary, which the

Supreme Court has defined as “an unlawful or unprivileged

entry into, or remaining in, a building or other structure,

with intent to commit a crime.” Taylor v. United States

, 495

U.S. 575, 598 (1990). Determining whether burglary under a

given State’s law is encompassed by § 924(e)(2)(B)(ii) pre

‐

sents a categorical question that focuses exclusively on the

state crime’s statutory definition. Mathis v. United States

, 136

S. Ct. 2243, 2248 (2016). “[I]f the [state] statute sweeps more

broadly than the generic crime, a conviction under that law

cannot count as an ACCA predicate, even if the defendant

actually committed the offense in its generic form.” Descamps

v. United States

, 133 S. Ct. 2276, 2283 (2013).

Indiana law defines burglary as “break[ing] and en

‐ ter[ing] the building or structure of another person, with in

‐4 No. 16

‐ 1635

tent to commit a felony or theft in it.” Ind. Code § 35

‐ 43

‐ 2

‐ 1.

This definition is nearly identical to that of “generic” burgla

‐

ry—a congruence that led us in United States v. Vogt

, 588 F.

App’x 497 (7th Cir. 2015), to hold that Indiana burglary qual

‐

ifies as a predicate “burglary” under ACCA. In fact, we held

that it would be “frivolous” to contend otherwise. Id

. at 498.

Yet Vogt is non

‐ precedential, and Perry urges us to chart

a different course here, arguing that Indiana burglary is

broader than generic burglary with respect to where it may

be committed. Indiana burglary may be committed in out

‐

door, fenced

‐ in areas. See McCovens v. State

, 539 N.E.2d 26,

29 (Ind. 1989) (“The fence surrounding the business was a

‘structure’ as contemplated by Ind. Code § 35

‐ 43

‐ 2

‐ 1.”); Gray

v. State

, 797 N.E.2d 333, 335–36 (Ind. App. 2003) (holding

that a fenced area need not adjoin a building or completely

surround a business premises to qualify as a “structure” un

‐

der the Indiana burglary statute); Joy v. State

, 460 N.E.2d 551,

558 (Ind. App. 1984) (holding that “the fence surrounding

the Leland Lumber Company was a ‘structure’ as contem

‐ plated by our burglary statute”). Perry contends that a state

burglary statute that treats a fenced area as a “structure”

necessarily “sweeps more broadly” than generic burglary,

Descamps

, 133 S. Ct. at 2283, which according to the Supreme

Court may be committed only in “a building or enclosed

space,” Shepard v. United States

, 544 U.S. 13, 15–16 (2005).

The strongest support for Perry’s position comes from

James v. United States

, 550 U.S. 192 (2007), in which the Su

‐

preme Court observed that burglary under Florida law, be

‐

cause it may be committed in curtilage, is broader than ge

‐

neric burglary. Id

. at 212 (“the inclusion of curtilage takes

Florida’s underlying offense of burglary outside the defini

‐No. 16

‐ 1635 5

tion of generic burglary”) (internal quotation marks omit

‐ ted). According to Perry, if Florida burglary’s coverage of

curtilage makes it broader than generic burglary, then so,

too, does Indiana burglary’s coverage of fenced

‐ in areas.

Perry’s argument misses the mark. As a general rule, cur

‐ tilage need not be completely fenced in. See United States v.

Dunn

, 480 U.S. 294, 301 n.4 (1987) (“declin[ing]

... to adopt a

bright

‐ line rule that the curtilage should extend no farther

than the nearest fence surrounding a fenced house”) (inter

‐

nal quotation marks omitted). Florida law is in accord. Alt

‐ hough curtilage under the Florida burglary statute requires

“ some form of enclosure,” it “does not require total enclo

‐

sure.” Chambers v. State

, 700 So.2d 441, 442 (Fla. App. 1997)

(emphases added). Florida burglary thus may be committed

where a defendant enters a yard surrounded by a fence with

a “ten to fifteen foot gap,” ibid

., or enters an area fenced on

three sides, with a “low

‐ walled ‘stoop’” in front and an

opening for a driveway, Jacobs v. State

, 41 So.3d 1004, 1006

(Fla. App. 2010). This explains why the Supreme Court in

James deemed Florida burglary broader than generic burgla

‐

ry, which, as noted, must take place in “a building or other

structure,” Taylor

, 495 U.S. at 598, or “a building or enclosed

space,” Shepard

, 544 U.S. at 15–16.

Unlike the Florida burglary statute, Indiana burglary re

‐ quires that the defendant enter a wholly enclosed area. In the

Indiana cases cited by Perry, the defendant forced his way

into an area completely surrounded by a fence. See McCov

‐

ens

, 539 N.E.2d at 29 (where the defendant climbed over or

squeezed through a fence “without any holes or openings”);

Gray

, 797 N.E.2d at 335 (where the defendant apparently

climbed over a fence enclosing the lot of an auto repair6 No. 16

‐ 1635

shop); Joy

, 460 N.E.2d at 555 (where the defendant used wire

cutters to cut a fence surrounding a lumber yard); see also

Calhoon v. State

, 842 N.E.2d 432, 435 (Ind. App. 2006) (observ

‐ ing that Gray involved entry into “a completely enclosed ar

‐

ea”). Perry brings no Indiana case to our attention, and we

are aware of none, where, as in Florida, a defendant was

convicted of burglary for entering a fenced area that was not

completely enclosed. To the contrary, the state appellate

court in Calhoon distinguished McCovens

, Joy

, and Gray in

reversing a burglary conviction on the ground that the

“fence surrounded only three sides of” the outdoor space

entered by the defendant, “leaving the fourth completely

open.” Calhoon, 842 N.E.2d at 435–36. It follows that James

,

which considered a burglary statute criminalizing entry into

partially enclosed curtilage to be broader than generic bur

‐ glary, does not take Indiana burglary outside the definition

of generic burglary.

The other decisions cited by Perry are even further afield.

In United States v. Wenner

, 351 F.3d 969 (9th Cir. 2003), and

United States v. Bennett

, 100 F.3d 1105 (3d Cir. 1996), the

courts held that the Washington and Pennsylvania burglary

statutes, respectively, were non

‐ generic. But both statutes

encompass circumstances where the defendant enters a

movable conveyance—railway cars in Washington, Wenner

,

351 F.3d at 972, and automobiles in Pennsylvania, Bennett

,

100 F.3d at 1109—which takes them outside the definition of

generic burglary. See Mathis

, 136 S. Ct. at 2250 (distinguish

‐ ing Iowa burglary from generic burglary on the ground that

“Iowa’s statute

... reaches a broader range of places: ‘any

building, structure, [or] land, water, or air vehicle ’”) (emphasis

and brackets in original); Shepard

, 544 U.S. at 15–16 (“The

[ACCA] makes burglary a violent felony only if committedNo. 16

‐ 1635 7

in a building or enclosed space (‘generic burglary’), not in a

boat or motor vehicle”); United States v. Haney

, 840 F.3d 472,

475 (7th Cir. 2016) (concluding that certain Illinois burglary

statutes from the 1970s were nongeneric because they ap

‐ plied to vehicles). Indiana burglary does not cover vehicles

or other movable conveyances.

In sum, Perry “has not identified,” and we have not

found, “any case in which [Indiana’s] judiciary affirmed a

[burglary] conviction that penalized acts” inconsistent with

the generic offense of burglary. Yates v. United States

, 842

F.3d 1051, 1053 (7th Cir. 2016). It follows that Perry’s two In

‐

diana burglary convictions were valid predicate offenses

under § 924(e)(2)(B)(ii), and therefore that his § 924(e)(1) sen

‐ tencing enhancement was warranted.

We also reject Perry’s contention that the district court

mishandled his argument at sentencing that the two

§ 922(g)(1) counts to which he pleaded guilty were multiplic

‐

itous. Putting aside the question whether Perry waived this

contention by entering an unconditional guilty plea, see

United States v. Combs

, 657 F.3d 565, 568–69 (7th Cir. 2011), it

fails on the merits because his conduct clearly supports the

two separate counts. Perry violated § 922(g)(1) when he pur

‐

chased ammunition from Wal

‐ Mart on May 22, 2013. The

store’s surveillance footage shows that he possessed the

ammunition but not a firearm, and his receipt confirms that

he did not purchase a firearm along with the ammunition.

Accordingly, the firearm and shotgun must have been “ac

‐ quired separately,” which supports the two separate charg

‐

es. United States v. Buchmeier

, 255 F.3d 415, 423 (7th Cir.

2001). Any error in the district court’s failure to spell this out

at the sentencing hearing is harmless given the clarity in the8 No. 16

‐ 1635

record regarding Perry’s conduct. It also bears mention that

the additional § 922(g)(1) conviction resulted in no addition

‐

al time to Perry’s overall sentence, as the sentences on both

counts run concurrently—which is precisely what Perry re

‐ quested to remedy what he viewed as the two improperly

duplicative counts. See United States v. Cunningham

, 429 F.3d

673, 679 (7th Cir. 2005) (“[T]he judge’s failure to discuss an

immaterial or insubstantial dispute relating to the proper

sentence would be at worst a harmless error.”).

AFFIRMED