___________ No. 95-2595

___________ Doyle Ray Evans, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. United States of America, * * [UNPUBLISHED] Appellee. *

___________ Submitted: December 7, 1995 Filed: December 21, 1995

___________ Before BOWMAN, BEAM, and MURPHY, Circuit Judges.

___________ PER CURIAM. Doyle Roy Evans appeals the district court's denial of his 28 U.S.C. § 2255 motion. We reverse and remand.

Evans pleaded guilty to a one-count indictment charging him wit h transporting a firear m in interstate commerce after having been convicted of three or more violent crimes, in violation of 18 U.S.C. §§ 922(g) and 924 (e). It is undisputed that at the time of his plea, Evans had th e following prior convi ctions: a 1971 Arkansas burglary conviction; a 1975 Arkansas burglary con viction; a 1984 conviction on twenty-eight counts of burglary in Cherokee County, Georgia; and another 1984 conviction on four counts of burglary in Cobb County, Georgia. The district court determined that Evans was subject to a section 924(e)(1) enhancement as an arme d
career criminal, and sentenced Evans to 188 months imprisonment and five years supervised release.

### -2- Evans subsequently filed this section 2255 motion, asserting th at his counsel w as ineffective for failing to object to the use of his Georgi a burglary convictions for sentencing enhancement purposes, and that without these Georgia convictions, he did not have the requisite three predicate felonies necessary for a section 924(e)(1) enhancement. The government di d not respond, and the district court denied Evans's motion.
We affirm the summary dismissal of a section 2255 motion only if, upon de novo review, we are convinced that "the motion and the files and record s of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see Rule 4(b), Rules Governing § 2255 Proceedings; Unite d States v. Duke , 50 F.3d 571, 576 (8th Cir. 1995). We are not so convinced , because we conclude E vans has shown his counsel may have been ineffective for failing to object to the use of Evans's two Georgia convictions a s pre dicate offenses for a section 924(e) enhancement. See Strickland v

. Washington , 466 U.S. 668, 687 (1984).
"Burglary" is included in the definition of violent felonies th at may consti tute predicate offenses for a section 924(e)(1) enhancement. 1 8 U.S.C. § 924(e)(2)(B) (ii). For purposes of section 924(e), "burglary" is "any crime . . . having the basic elements of unlawful or unprivilege d entry into, or remaining in, a building or structure, with intent to commi t a crime." Taylor v. United States , 495 U.S. 575, 599 (1990) (formulating a "generic" definition of burglary).
The Georgia statute under which Evan s was convicted defines burglary
mor e broadly than the generic definition in Taylor , because the statut e includes vehicles, railroad cars, watercraft, aircraft, and "any room or any part thereof" as places that can be burgled. See Ga. Code Ann. § 16-7

- 1 (Michie 1980); cf. United States v. Taylor , 93 2 F.2d 203, 707 (8th Cir.) (on remand from 495 U .S. 575; noting Missouri statute broader than Taylor definition

### -3-

where it included booths, tents, boats, vessels, and railroad cars), cert. denied , 502 U.S. 888 (1991); United States v. Payton , 918 F.2d 54, 55 & n. 1 (8th Cir. 1990) (noting Iowa statue broader than Taylor definition where it included railroad cars, boats, and vessels), cert. denied , 502 U.S. 948 (1991); c f. United States v. Barney , 955 F.2d 635, 640 (10th Cir. 1992 ) (indic tment charged defendant with entering back room of building; bac k room is not building or structure).

Therefore , Evans's convictions cannot be used as predicate offenses for a section 924(e) enhancement, unless the charging papers required Evan s to plead guilty to generic burglary. See Taylor , 495 U.S. at 600-02 ; Payton , 918 F.2d at 5 5-56 (where defendant pleaded guilty, charging paper alone will usually be determinative document); Taylor , 932 F.2d at 708-09 (guilty plea was to charge meeting generic defin ition of burglary). There is no indication in the record that the district court examined Evans' s charging papers and made such a determination.

Accord ingly, we reverse the district court's denial of Evans' s motion, and remand th e case to the district court, which should order the government to show cause why Evans's motion should not be granted.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.