United States v. Sims

Decision Date27 April 2017
Docket NumberNo. 16-1233,16-1233
Citation854 F.3d 1037
Parties UNITED STATES of America, Plaintiff–Appellee v. Jason Daniel SIMS, Defendant–Appellant
CourtU.S. Court of Appeals — Eighth Circuit

Counsel who filed a brief and presented argument on behalf of the appellant was Chris Tarver, AFPD, of Little Rock, AR.

Counsel who presented argument on behalf of the appellee was Stephanie Mazzanti, AUSA, of Little Rock, AR. The following attorney appeared on the appellee brief; Edward O. Walker, AUSA, of Little Rock, AR.

Before RILEY, Chief Judge,1 GRUENDER, Circuit Judge, and SCHREIER,2 District Judge.

GRUENDER, Circuit Judge.

Jason Daniel Sims pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He received an enhanced sentence pursuant to the Armed Career Criminal Act ("ACCA"), which applies to those felons guilty of possessing a firearm who also have at least three prior convictions for a violent felony or serious drug offense. See 18 U.S.C. § 924(e). On appeal, Sims contends that the district court erred in finding that his two prior Arkansas residential burglary convictions qualify as violent felonies because the Arkansas residential burglary offense is categorically broader than generic burglary. We agree and therefore vacate Sims's sentence and remand for resentencing.

The ACCA imposes a fifteen-year mandatory minimum sentence for anyone convicted of unlawfully possessing a firearm who has three or more prior convictions for serious drug offenses or violent felonies. 18 U.S.C. § 924(e)(1). "Burglary" is one of the offenses specifically enumerated as a violent felony under the ACCA. See id. § 924(e)(2)(B)(ii). In the ACCA context, the Supreme Court has defined burglary in its "generic" usage as "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." See Taylor v. United States , 495 U.S. 575, 598-99, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Sims's Pre-Sentence Investigation Report (PSR) indicated that he had several prior felony offenses, including two convictions for serious drug offenses and two Arkansas convictions for residential burglary. The PSR stated that all four convictions qualified as ACCA predicate offenses and thus determined that Sims was subject to a minimum sentence of fifteen years as well as an advisory sentencing guideline enhancement based on his status as an armed career criminal. See U.S.S.G. § 4B1.4. Sims conceded that his two convictions for serious drug offenses constituted ACCA predicate offenses but argued that his Arkansas residential burglary convictions did not. He asserted that the Arkansas residential burglary statute was over-inclusive and criminalized conduct that fell outside the generic definition of burglary. See Taylor , 495 U.S. at 599, 110 S.Ct. 2143.

The district court disagreed with Sims and found his Arkansas residential burglary convictions were ACCA predicate offenses. As a result, Sims's advisory sentencing guidelines range was 188 to 235 months' imprisonment, and the district court imposed a 210-month sentence. On appeal, Sims renews his argument that Arkansas residential burglary is broader than generic burglary and that his convictions do not qualify as ACCA predicate offenses.

Under Arkansas law, "[a] person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment." Ark. Code Ann. § 5-39-201(a)(1). A " [r]esidential occupiable structure’ means a vehicle, building, or other structure: (i) [i]n which any person lives; or (ii) [t]hat is customarily used for overnight accommodation of a person whether or not a person is actually present." Id. § 5-39-101(4)(A). The Government concedes that the Arkansas residential burglary statute's listed items are separate means of satisfying a single locational element. See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248-49, 195 L.Ed.2d 604 (2016) (" ‘Elements' are the constituent parts of a crime's legal definition—the things the prosecution must prove to sustain a conviction.... [M]eans ... spell[ ] out various factual ways of committing some component of the offense...." (citations and quotations omitted)). Thus, "we apply the ‘categorical approach,’ under which we ‘look only to the fact of conviction and the statutory definition of the prior offense.’ " United States v. Tucker , 740 F.3d 1177, 1179 (8th Cir. 2014) (en banc) (quoting Taylor , 495 U.S. at 602, 110 S.Ct. 2143 ). In short, Sims's Arkansas residential burglary convictions will qualify as generic burglaries—and thus serve as ACCA predicates—"only if the statute's elements are the same as, or narrower than, those of the generic offense." See Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). We review the question of whether a prior conviction qualifies as an ACCA predicate de novo . United States v. Thornton , 766 F.3d 875, 878 (8th Cir. 2014).

Sims's central contention is that generic burglary's "building or structure" element does not encompass vehicles, and thus, the Arkansas residential burglary statute sweeps more broadly than generic burglary. The Supreme Court has clearly stated that "[t]he [ACCA] makes burglary a violent felony only if committed in a building or enclosed space (‘generic burglary’), not in a boat or motor vehicle ." Shepard v. United States , 544 U.S. 13, 15-16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (emphasis added). In Mathis v. United States , the Court considered an Iowa burglary statute that all parties agreed criminalized more conduct than generic burglary. 136 S.Ct. at 2250. The Iowa statute made it a crime to burgle "any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value." See Iowa Code Ann. § 702.12 ; Mathis , 136 S.Ct. at 2250. The Supreme Court agreed that the Iowa burglary statute was over-inclusive for the simple reason that the burglary statute "reache[d] ... land, water, or air vehicle[s] ." Mathis , 136 S.Ct. at 2250 (emphasis in original). Thus, the Court determined that convictions under the Iowa burglary statute could not serve as ACCA predicate offenses. Id. at 2257.

The Government responds that while the burglary of vehicles does not constitute generic burglary, the Arkansas residential burglary statute applies only to vehicles "[i]n which any person lives" or "[t]hat [are] customarily used for overnight accommodation," see Ark. Code Ann. § 5-39-101(4)(A), and therefore, Arkansas residential burglary criminalizes conduct that is "the same as, or narrower than ... the generic offense," see Descamps , 133 S.Ct. at 2281. The Government's argument is not an unreasonable one as this issue has divided circuit courts. Compare United States v. Spring , 80 F.3d 1450, 1461-62 (10th Cir. 1996) (holding burglary of vehicles ...

To continue reading

Request your trial
23 cases
  • United States v. Stitt
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 27, 2017
    ...decisions in which it held that Wisconsin and Arkansas burglary statutes were broader than generic ACCA burglary. United States v. Sims , 854 F.3d 1037, 1040 (8th Cir. 2017) ("[J]ust as it was inconsequential that Wisconsin's statute limited burglary to motor homes, it is inconsequential th......
  • United States v. Herrold
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 20, 2018
    ...for use in one place"). Some of these circuits did not entertain much, if any, debate on the issue. See, e.g. , United States v. Sims , 854 F.3d 1037, 1040 (8th Cir. 2017), petition for cert. filed , (U.S. Nov. 24, 2017) (No. 17-766); United States v. Lamb , 847 F.3d 928, 931 (8th Cir. 2017......
  • Waagner v. United States
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 20, 2020
    ...2143 ).14 Stitt , 139 S. Ct. 399, consolidated two cases, United States v. Stitt , 860 F.3d 854 (6th Cir. 2017), and United States v. Sims , 854 F.3d 1037 (8th Cir. 2017). The Supreme Court reversed the judgment of the Sixth Circuit and vacated the judgment of the Eighth Circuit and remande......
  • United States v. Islas-Saucedo
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 11, 2018
    ..., 860 F.3d 854 (6th Cir. 2017) (en banc), cert. granted , ––– U.S. ––––, 138 S.Ct. 1592, 200 L.Ed.2d 776 (2018) ; United States v. Sims , 854 F.3d 1037 (8th Cir. 2017), cert. granted , ––– U.S. ––––, 138 S.Ct. 1592, 200 L.Ed.2d 776 (2018). However, Islas-Saucedo has not challenged the defin......
  • Request a trial to view additional results
1 books & journal articles
  • Intent or Opportunity? Eighth Circuit Analyzes Intent Element of Generic Burglary.
    • United States
    • Missouri Law Review Vol. 84 No. 1, January 2019
    • January 1, 2019
    ...that several other state burglary statutes did not qualify for enhanced sentencing under the ACCA. See, e.g., United States v. Sims, 854 F.3d 1037, 1040 (8th Cir. 2017) (finding that Arkansas's residential burglary statue if broader than generic burglary), vacated and remanded sub nom. Unit......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT