United States Court of Appeals

For the Eighth Circuit

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No. 16-3764

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jonathon Lee Kinney

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of North Dakota - Fargo

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 Submitted: October 16, 2017

 Filed: April 23, 2018

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Before WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Jonathon Kinney pled guilty to one count of possession of a firearm by a

convicted felon and one count of possession of ammunition by a convicted felon, both

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). Pursuant to 18 U.S.C.

§ 924(e)(1) and 924(e)(2)(B)(ii) of the Armed Career Criminal Act (ACCA), the

district court sentenced Kinney as an armed career criminal based on four previous
convictions for accomplice to burglary under North Dakota law. Because we find

that the North Dakota statute of conviction is indivisible and criminalizes more than

the definition of “burglary” under federal law, we reverse and remand for

resentencing.

I. Discussion

Kinney argues that the North Dakota burglary statute is both indivisible and

overbroad, thereby precluding convictions under that statute from serving as ACCA

predicates. The government responds, asserting that a conviction under the statute

categorically qualifies as a violent felony or, alternatively, that the statute is divisible

and application of the modified categorical approach shows that Kinney was

convicted of a crime matching the generic definition of burglary under federal law. 

“We review de novo a district court’s finding that a defendant’s prior conviction

constitutes a violent felony for purposes of the ACCA.” United States v. Lindsey,

827 F.3d 733, 738 (8th Cir.), cert. denied, 137 S. Ct. 413 (2016).

A. The ACCA Framework

Under the ACCA, a defendant is subject to a fifteen-year mandatory minimum

sentence if he or she is convicted of being a felon in possession of a firearm and has

three prior convictions for a violent felony. 18 U.S.C. § 924(e)(1). A “violent

felony” includes any state or federal felony that “is burglary, arson, or extortion.” 

§ 924(e)(2)(B)(ii). “In listing th[e]se crimes, . . . Congress referred only to their usual

or . . . generic version—not to all variants of the offenses.” Mathis v. United States,

136 S. Ct. 2243, 2248 (2016). Therefore, as it pertains to burglary, “Congress meant

a crime ‘contain[ing] the following elements: an unlawful or unprivileged entry into

. . . a building or other structure, with intent to commit a crime.’” Id. (alteration in

original) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)).

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“To determine whether a prior conviction is for generic burglary . . . courts

apply what is known as the categorical approach: They focus solely on whether the

elements of the crime of conviction sufficiently match the elements of generic

burglary, while ignoring the particular facts of the case.” Id. “Elements are the

constituent parts of a crime’s legal definition—the thingsthe prosecution must prove

to sustain a conviction.” Id. (internal quotation marks omitted). Means, “by contrast,

are mere real-world things—extraneous to the crime’s legal requirements. . . . They

are circumstance[s] or event[s] having no legal effect [or] consequence: In particular,

they need neither be found by a jury nor admitted by a defendant.” Id. (alterations in

original) (internal quotation marks omitted).

Where a statute lists only a single set of elements, the statute is indivisible and

the standard categorical approach must be used. See id. at 2248-49. This istrue even

if the statute lists several alternative factual means for committing a single crime. Id.

at 2249. The Iowa statute at issue in Mathis, for example, criminalized burgling

“‘any building, structure, [or] land, water, or air vehicle.’” Id. at 2250 (alterations

in original) (quoting Iowa Code § 702.12). Because Iowa courts had interpreted the

statute as presenting alternative means for committing the single crime of burglary

and clarified that a jury need not agree on which of the means was present in a

particular case, the United States Supreme Court concluded the statute was

indivisible. Id. at 2253. “In short, the statute defines one crime, with one set of

elements, broader than generic burglary—while specifying multiple means of

fulfilling its locational element, some but not all of which (i.e., buildings and other

structures, but not vehicles) satisfy the generic definition.” Id. at 2250; see also

Descamps v. United States, 133 S. Ct. 2276, 2285-86 (2013) (holding as indivisible

a California burglary statute which prohibited the lawful or unlawful entering of a

place with the intent to steal).

Accordingly, “[t]he first task for a sentencing court faced with an alternatively

phrased statute is thus to determine whether its listed items are elements or means.” 

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Mathis, 136 S. Ct. at 2256. This inquiry should be resolved by looking to

“authoritative sources of state law.” Id. Where “a state court decision definitively

answers the question . . . a sentencing judge need only follow what it says.” Id. 

Additionally, the express language of the statute may indicate that alternatively

phrased items are elements “[i]f statutory alternatives carry different punishments”

or if the statute itself identifies “which things must be charged.” Id. Finally, if these

authoritative sources fail to provide a clear answer, judges are allowed a “peek” at

“the record of the prior conviction itself.” Id. at 2256-57 (internal quotation marks

omitted). The Mathis Court hypothesized that where a specific count in “an

indictment and correlative jury instruction[] charge a defendant with burgling a

‘building, structure, or vehicle,’” this would be “as clear an indication as any that

each alternative is only a possible means of commission, not an element that the

prosecutor must prove to a jury beyond a reasonable doubt.” Id. at 2257.

B. North Dakota Law

We therefore turn to North Dakota law to discern whether the statute of

conviction is (1) overinclusive and (2) divisible or indivisible. At the time of

Kinney’s conviction in 1999, the burglary statute at issue read as follows:

A person is guilty of burglary if he willfully enters or surreptitiously

remains in a building or occupied structure, or a separately secured or

occupied portion thereof, when at the time the premises are not open to

the public and the actor is not licensed, invited, or otherwise privileged

to enter or remain as the case may be, with intent to commit a crime

therein.

N.D. Cent. Code § 12.1-22-02 (1999). An “occupied structure” is defined as “a

structure or vehicle”:

a. Where any person lives or carries on business or other calling; or 

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b. Which is used for overnight accommodation of persons. 

c. Any such structure or vehicle is deemed to be “occupied” regardless

of whether a person is actually present. 

N.D. Cent. Code § 12.1-22-06(4) (1999).

Looking only at this text, the statute’s overbreadth is apparent. By including

both structures and vehicles within its reach, the statute criminalizes more conduct

than the generic version of the offense. See Shepard v. United States, 544 U.S. 13,

15-16 (2005) (“The A[CCA] makes burglary a violent felony only if committed in a

building or enclosed space (‘generic burglary’), not in a boat or motor vehicle.”). The

government argues against this conclusion by asserting that North Dakota’s decision

to limit the statute only to vehicles used for living or business purposes brings the

statute in line with the generic offense. We disagree. In United States v. Sims, 854

F.3d 1037 (8th Cir. 2017), we dealt with burglary under Arkansas law, and the

Arkansas statute—like the North Dakota statute at issue here—applied to vehicles

“‘[i]n which any person lives’ or ‘[t]hat [are] customarily used for overnight

accommodation.’” Id. at 1040 (alterations in original) (quoting Ark. Code Ann.

§ 5-39-101(4)(A)). As in this case, the government asserted in Sims that this

limitation saved the statute. Id. But we rejected this contention, adopting the

conclusion reached in United States v. Lamb, 847 F.3d 928 (8th Cir. 2017), that

“‘[w]ithout question, [the statute], viewed as a whole, encompasses a broader range

of conduct than generic burglary as defined in Taylor, such as burglary of . . . motor

homes.’” Sims, 854 F.3d at 1040 (first, second, and fourth alterations in original)

(quoting Lamb, 847 F.3d at 931). Accordingly, convictions under N.D. Cent. Code

§ 12.1-22-02 (1999) cannot categorically qualify as violent felonies under the ACCA.

This appeal therefore turns on whether the statute is divisible. Specifically, we

must address whether the phrase “building or occupied structure” denotes two factual

means of committing the single offense of burglary or whether the alternative

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locations are elements under North Dakota law. Kinney argues that the structure of

the statute, North Dakota jury instructions, and available charging documents all

show that the alternative terms are means. In response, the government points to the

disjunctive phrasing of the statute, contending this is decisive.

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North Dakota law—our first stop in answering this means/elements

inquiry—provides no clear guidance. See Mathis, 136 S. Ct. at 2256. Neither party

directs the court to controlling or persuasive state court precedent, and we have found

none on our own. The language of the statute likewise does little to guide us. The

alternatives do not “carry different punishments,” which may indicate that the terms

are means, but the statute does not identify “which things must be charged.” Id. 

Because these authoritative sources fail to provide an answer, we are allowed

a “peek” at “the record of the prior conviction itself . . . for the sole and limited

purpose of determining whether [the listed items are] element[s] of the offense.” Id.

at 2256-57 (second and third alterations in original) (internal quotation marks

omitted). We have in our record indictmentsfromtwo of Kinney’s prior convictions,

and each charges Kinney with burgling “a building or occupied structure.” The

indictments “thus reiterat[e] all the terms of [North Dakota’s] law,” and “[t]hat is as

clear an indication as any that each alternative is only a possible means of

commission, not an element that the prosecutor must prove to a jury beyond a

reasonable doubt.” Id. at 2257. Given that the alternatives are means, the statute is

indivisible. Because the statute is both overbroad and indivisible, Kinney’s prior

convictions cannot serve as predicate felonies under the ACCA.

Contrary to the government’s position, the en banc court recently reiterated

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that disjunctive phrasing merely triggers the inquiry into whether the alternatively

phrased items are means or elements. See United States v. Naylor, No. 16-2047, slip

op. at 3 (8th Cir. April 5, 2018).

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II. Conclusion

For the reasons above, we reverse and remand for resentencing.

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