from the United States District Court for the Eastern
District of Tennessee at Winchester. No.
4:12-cr-00019-1-Harry S. Mattice Jr., District Judge.
Timothy C. Ivey, FEDERAL PUBLIC DEFENDER'S OFFICE,
Cleveland, Ohio, for Appellant.
L. Bay, UNITED STATES ATTORNEY'S OFFICE, Chattanooga,
Tennessee, Debra A. Breneman, UNITED STATES ATTORNEY'S
OFFICE, Knoxville, Tennessee, for Appellee..
Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY,
GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE,
WHITE, STRANCH, and DONALD, Circuit Judges. [*]
2007, we held that a conviction under Tennessee's
aggravated-burglary statute, Tenn. Code Ann. §
39-14-403, categorically qualifies as an enumerated
"violent felony" that triggers a sentencing
enhancement under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e). United
States v. Nance, 481 F.3d 882, 887 (6th Cir. 2007);
see also United States v. Priddy, 808 F.3d 676, 684
(6th Cir. 2015). Several years later, we reached the opposite
conclusion about Ohio's similarly worded burglary
statute, Ohio Rev. Code § 2911.12(A)(3). United
States v. Coleman, 655 F.3d 480, 482 (6th Cir. 2011),
abrogated on other grounds by Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015). We resolve this
conflict by overruling Nance and holding that a
conviction for Tennessee aggravated burglary is not a violent
felony for purposes of the ACCA.
a heated argument in 2011, Victor Stitt tried to shove a
loaded handgun into his girlfriend's mouth while
threatening to kill her. When a neighbor called the police,
Stitt fled to his mother's home, where he surrendered to
authorities after a brief foot chase. Detectives recovered
the gun lying on the ground within his reach.
found Stitt guilty of possessing a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g). Due to his
nine prior "violent felony" convictions-including
six for Tennessee aggravated burglary-the court designated
Stitt an armed career criminal under the ACCA and sentenced
him to 290 months' imprisonment.
appeal, Stitt argued that none of his nine convictions
qualify as violent felonies. The government conceded that
Johnson v. United States invalidated the
violent-felony status of three of his prior offenses, leaving
only his six aggravated-burglary convictions at issue.
See 135 S.Ct. at 2563. Bound by Nance-which
held that Tennessee aggravated burglary fits the Supreme
Court's definition of "generic burglary"-we
affirmed his sentence. United States v. Stitt, 637
F.App'x 927, 931-32 (6th Cir. 2016).
comes before us now on a petition for rehearing en banc,
which we granted to resolve whether a conviction for
Tennessee aggravated burglary constitutes a violent felony
under the ACCA. United States v. Stitt, 646
F.App'x 454 (6th Cir. 2016). Because we conclude that
Tennessee's aggravated-burglary statute is broader than
the definition of generic burglary, we hold that a conviction
under the statute does not qualify as an ACCA predicate
ACCA imposes a fifteen-year minimum sentence on any defendant
who, having been convicted of three prior "violent
felonies, " is found guilty of being in possession of a
firearm. See 18 U.S.C. §§ 922(g), 924(e).
Although the ACCA enumerates burglary as one of several
"violent felonies" that can lead to the
fifteen-year minimum, see § 924(e)(2)(B)(ii),
not every conviction labeled as "burglary" under
state law qualifies as a violent felony. Taylor v. United
States, 495 U.S. 575, 590-92 (1990). Instead, Congress
intended to encompass only those convictions arising from
burglary statutes that conform to, or are narrower than, the
"generic" definition of burglary. Id. at
determine whether Stitt's aggravated-burglary convictions
qualify, we apply the "categorical approach."
Descamps v. United States, 133 S.Ct. 2276, 2281
(2013). Under this approach, we compare the statutory
elements of Tennessee aggravated burglary to the elements of
"generic burglary." See id. If the
elements of Tennessee aggravated burglary "are the same
as, or narrower than, those of [generic burglary, ]"
Stitt's convictions count as violent felonies under the
Applying the Categorical Approach
defines aggravated burglary as the "burglary of a
habitation, " Tenn. Code Ann. § 39-14-403, and
defines "habitation" as "any structure . . .
which is designed or adapted for the overnight accommodation
of persons, " id. § 39-14-401(1)(A). The
term "habitation" includes "mobile homes,
trailers, and tents, " as well as any
"self-propelled vehicle that is designed or adapted for
the overnight accommodation of persons and is actually
occupied at the time of initial entry by the defendant."
contrast, the Supreme Court has determined that under the
ACCA, "generic burglary" means "an unlawful or
unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime."
Taylor, 495 U.S. at 598. Although the Court left
"building or other structure" undefined, it has
confirmed repeatedly that vehicles and movable enclosures
(e.g., railroad cars, tents, and booths) fall outside the
definitional sweep of "building or other
structure." See id. at 599; Mathis v.
United States, 136 S.Ct. 2243, 2250 (2016) (explaining
that Iowa's burglary statute "covers more conduct
than generic burglary" because it "reaches a
broader range of places: 'any building, structure,
[or] land, water, or air vehicle.'"
(alteration in original) (citations omitted)); Nijhawan
v. Holder, 557 U.S. 29, 35 (2009) (differentiating
between breaking into a "vessel, " which would not
qualify as generic burglary, and "breaking into a
building, " which would); Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 186-87 (2007) (noting that
Massachusetts defines burglary to include breaking into a
vehicle, "which falls outside the generic definition of
'burglary, ' for a car is not a 'building or
structure'" (citations omitted)); Shepard v.
United States, 544 U.S. 13, 15-16 (2005) ("The
[ACCA] makes burglary a violent felony only if committed in a
building or enclosed space . . ., not in a boat or motor
including "mobile homes, trailers, and tents, " as
well as any "self-propelled vehicle, "
Tennessee's aggravated-burglary statute includes exactly
the kinds of vehicles and movable enclosures that the Court
excludes from generic burglary. But the statute comes with a
wrinkle: it criminalizes the unauthorized entry into vehicles
and movable enclosures (with criminal intent) only
if they are "designed or adapted for the overnight
accommodation of persons." Tenn. Code Ann. §
39-14-401(1). In other words, it restricts the ambit of the
statute to only those vehicles and movable enclosures that
issue before us, then, is whether a burglary statute that
covers vehicles or movable enclosures only if they are
habitable fits within the bounds of generic burglary. We hold
that it does not. Our reading of Taylor and its
progeny supports this conclusion.
start, Taylor emphasizes a place's form and
nature-not its intended use or purpose- when determining
whether a burglary statute's locational element is a
"building or other structure." Taylor, 495
U.S. at 598; United States v. Rainer, 616 F.3d 1212,
1215 (11th Cir. 2010) ("The definitional focus [of
generic burglary] is on the nature of the property or place,
not on the nature of its use at the time of the
crime."), abrogated on other grounds as recognized
by United States v. Howard, 742 F.3d 1334, 1344-45 (11th
Cir. 2014); United States v. White, 836 F.3d 437,
445-46 (4th Cir. 2016) (finding it "immaterial" to
the categorical approach that West Virginia's burglary
statute confines coverage to vehicles "primarily
designed for human habitation").
throughout Taylor, the Court repeatedly
distinguishes vehicles and the like from "building[s]
and other structure[s]." 495 U.S. at 598. It begins by
offering California common law and Texas's burglary
statute-both of which criminalize the unauthorized entry of
vehicles-as examples of overly broad burglary definitions.
Id. at 591 (describing California burglary as
"so broadly [defined] as to include shoplifting and
theft of goods from a 'locked' but unoccupied
automobile" and Texas burglary as "includ[ing]
theft from [an] . . . automobile"). The Taylor
Court then explains that because they "includ[e] places,
such as automobiles, " they define crimes
falling outside the generic definition of burglary.
Id. at 599 (emphasis added). Similarly, in its
discussion of Taylor's prior burglary convictions, the
Court recognized that Missouri's second-degree burglary
statute was broader than generic burglary because it included
"breaking and entering 'any booth or tent, or any
boat or vessel, or railroad car.'" Id.
the Supreme Court has held fast to the distinction between
vehicles and movable enclosures versus buildings and
structures in every single post-Taylor decision.
See Mathis, 136 S.Ct. at 2250;
Nijhawan, 557 U.S. at 35; Duenas-Alvarez,
549 U.S. at 186-87; Shepard, 544 U.S. at 15-16. The
Court's adherence to this distinction over the course of
nearly thirty years persuades us that the Court meant exactly
what it said: vehicles and movable enclosures fall outside
the scope of generic burglary. See Mathis, 136 S.Ct.
at 2254 ("[A] good rule of thumb for reading our
decisions is that what they say and what they mean are one
and the same.").
government disputes our reading of Taylor, offering
two arguments to broaden "building or other
structure" so as to encompass anything "habitable,
" even if movable or temporary. Neither argument
latching onto the Taylor Court's statement
"that Congress meant by 'burglary' the generic
sense in which the term is now used in the criminal codes of
most states, " 495 U.S. at 598, the government conducts
its own fifty-state survey of the burglary statutes in effect
at the time the Court decided Taylor. It concludes
that (a) the overwhelming majority of states included
vehicles and movable enclosures in their burglary statutes,
and (b) a little more than half the states' burglary
statutes specifically "covered movable structures
adapted for specific purposes such as overnight
accommodation, business, or education." This, the
government asserts, shows that the Taylor Court
meant to include such "movable structures" under
"buildings or other structures."
the government argues that because the Model Penal Code's
("MPC") burglary definition-which includes occupied
structures-"served as the basis" for the
Taylor Court's definition of generic burglary,
the Court intended to include occupied structures under the
phrase "building or other structure." The
government hangs its entire argument on a single footnote in
which the Court explains that the generic definition of
burglary "approximates that adopted by the drafters of
the [MPC]." Id. at 598 n.8.
the government's arguments suffer from the same problem:
they ignore the Court's clear and unambiguous language
that "building or other structure" excludes
all things mobile or transitory. Indeed, the
government focuses its arguments not on interpreting
the words the Court chose to define generic burglary, but on
divining Congress's intent from the MPC and state
statutes. Given the Court's statement that burglary
statutes that "includ[e] places, such as
automobiles" fall outside the scope of generic
burglary-and its steadfast repetition of similar language in
later cases-we find the government's arguments
unavailing. Id. at 599.
even if we accept the government's invitation to focus on
the Taylor Court's own determination of
congressional intent, its arguments still fail. To understand
why, start with the question addressed in Taylor:
how should the Court define "burglary" under the
ACCA when the statute supplies no definition? Id. at
577. In answering the question, the Court drew on three
sources: (1) a definition of "burglary" from a
prior version of the ACCA, (2) the MPC, and (3) a general
sense of burglary derived from a prominent criminal law
treatise. We too review these three sources.
Congress enacted the ACCA in 1984, it defined burglary as
"any felony consisting of entering or remaining
surreptitiously within a building that is property
of another with intent to engage in conduct constituting a
Federal or State offense." Id. at 581 (emphasis
added) (quoting 18 U.S.C. § 1202(c)(9) (1984)).
Congress's choice of "building" necessarily
excluded anything movable.
left out this 1984 definition of burglary when it amended the
ACCA in 1986. But in formulating a replacement, the Court
hewed closely to the 1984 definition because it believed
Congress intended to retain the original definition's
substance. It observed that "nothing in the
[legislative] history [suggested] that Congress intended in
1986 to replace the 1984 'generic' definition of
burglary with something entirely
different." Id. at 590, 598. The Court
therefore settled on a definition of generic burglary that
"[wa]s practically identical to the" one Congress
had provided in 1984 (which excluded vehicles and movable
enclosures). Id. at 598.
Court's definitional emphasis on "the nature of the
property or place" becomes more apparent when
contrasting generic burglary with the MPC's burglary
definition. Rainer, 616 F.3d at 1215. The MPC reads:
"[a] person is guilty of burglary if he enters a
building or occupied structure, or separately
secured or occupied portion thereof, with purpose to commit a
crime therein, unless . . . the actor is licensed or
privileged to enter." Taylor, 495 U.S. at 598
n.8 (emphasis added) (quoting American Law Institute, Model
Penal Code § 221.1 (1980)). The Taylor Court
could have adopted the MPC's language of "building
or occupied structure." See id.
(emphasis added). Instead, it omitted "occupied, "
signaling that for the locational element, a place's
form-rather than its adaptation for habitability-marks the
dividing line between generic and non-generic burglary.
See id. at 598.
the Court sought to craft a definition of generic burglary
that captured the elements common to state burglary
statutes. To help distill those elements, the Court
turned to the 1986 edition of Wayne LaFave's classic
treatise, Substantive Criminal Law. See
Taylor, 495 U.S. at 598; see also United States v.
Grisel, 488 F.3d 844, 848-49 (9th Cir. 2007) (en banc).
Regarding the locational element, LaFave found that
"[m]odern statutes . . . typically describe the place as
a 'building' or 'structure, '" but that
some "also extend to still other places, such as all
or some types of vehicles." Wayne R. LaFave &
Austin W. Scott, Jr., Substantive Criminal Law
§ 8.13(e) (1986) (emphasis added). Clearly, LaFave
viewed buildings and structures as distinct from
"vehicles." And the Court, in turn, adopted the
same "typical" locational
element-"building" or "structure"-used by
states while omitting any reference to vehicles, suggesting
that it, like LaFave, saw vehicles as distinct from
the Taylor Court's consultation of the three
sources-particularly its rejection of the MPC's
"occupied structure" and its adoption of
LaFave's description of the locational element-refutes
the government's argument that we should interpret
"building and other structure" in strict
conformance with the MPC and the government's fifty-state
survey. See Grisel, 488 F.3d at 849 ("[T]he
Supreme Court in Taylor defined burglary using a
generic definition that we are bound to obey even if we think
that the definition is deficient."). Accordingly, we
reject the view that a state burglary statute that limits its
scope to only those vehicles and movable enclosures that are
habitable fits under the generic definition of burglary.
conclusion that Tennessee's aggravated-burglary statute
sweeps more broadly than generic burglary conflicts with our
decision in Nance, which held that the statute
matches the ACCA's definition of generic
burglary. 481 F.3d at 888. We now overrule
Nance, we correctly stated that Tennessee
"[a]ggravated burglary occurs when an individual enters
a habitation 'without the effective consent of the
property owner' and, . . . intends to commit a
felony." Id. (alteration and omission in
original) (quoting United States v. Sawyers, 409
F.3d 732, 737 (6th Cir. 2005)). We neglected, however, to
scrutinize the statutory definition of "habitation,
" which includes vehicles, tents, and other movable
enclosures. See Tenn. Code Ann. § 39-14-401(1).
We compounded this error by comparing the elements of
Tennessee's aggravated-burglary statute to the following
truncated definition of generic burglary: a burglary
"committed in a building or enclosed space."
Nance, 481 F.3d at 888 (quoting Shepard,
544 U.S. at 16). But the full definition from
Shepard states that the ACCA "makes burglary a
violent felony only if committed in a building or enclosed
space . . . not in a boat or motor vehicle."
544 U.S. at 15-16 (emphasis added). As a result of comparing
an incomplete definition of Tennessee aggravated burglary to
an incomplete definition of generic burglary, we incorrectly
concluded that a "habitation" is a "building
or enclosed space" and that a conviction for Tennessee
aggravated-burglary therefore constituted a violent felony.
Nance, 481 F.3d at 888.
not alone in shortcutting the categorical-approach analysis.
At least two other circuits committed the same error of
looking at the statutory elements of burglary statutes
without considering the definition of key terms such as
"occupied structure" or "habitation."
See United States v. Field, 39 F.3d 15, 20 (1st Cir.
1994); United States v. Silva, 957 F.2d 157, 162
(5th Cir. 1992).
courts have accounted for these statutory definitions, most
have held that statutes criminalizing the burglary of
vehicles and movable enclosures, even where limited to
"habitations" or "occupied structures, "
fall outside the generic definition of burglary. Compare
White, 836 F.3d at 446; United States v. Bess,
655 F.App'x 518, 519 (8th Cir. 2016) (per curiam);
Coleman, 655 F.3d at 482; Rainer, 616 F.3d
at 1215; Grisel, 488 F.3d at 851; United States
v. Bennett, 100 F.3d 1105, 1109 (3d Cir. 1996), with
United States v. Spring, 80 F.3d 1450, 1462 (10th Cir.
short, we overrule Nance because that case
misapplied the categorical approach. As explained above, a
violation of Tennessee's aggravated-burglary statute is
not categorically a violent felony.
conclusion that a conviction under Tennessee's
aggravated-burglary statute does not categorically qualify as
a violent felony does not end our inquiry. Even if a state
burglary statute criminalizes more conduct than generic
burglary, it may do so by listing multiple elements in the
alternative, thus setting forth different crimes, and one or
more of those crimes might match the definition of generic
burglary. Mathis, 136 S.Ct. at 2248-49 (citing
Shepard, 544 U.S. at 26). If the statute does list
alternative elements, we apply the "modified"
categorical approach to establish which of the alternative
crimes forms the basis of the defendant's conviction.
both parties agree that "the definition of habitation is
indivisible"-that is, it lays out alternative
means to fulfilling a single element rather than
alternative elements. See id. at 2251 n.1
(abrogating United States v. Ozier, 796 F.3d 597
(6th Cir. 2015)). Our review confirms that Tennessee's
aggravated-burglary statute is indivisible.
determine a statute's divisibility, we look first at the
language of the statute and state-court decisions; if neither
source provides a definitive answer, we turn to the record of
conviction. See id. at 2249, 2256; see also
United States v. Ritchey, 840 F.3d 310, 317-18 (6th Cir.
2016). If we still cannot discern whether a statute presents
elements or means, the statute is indivisible.
Mathis, 136 S.Ct. at 2257.
Mathis Court explained that a statute is indivisible
when it lists examples to clarify a term, as opposed to
listing alternative elements to define multiple crimes.
Id. The Court offered two cases that examined
statutes deemed indivisible because they listed
"illustrative examples" of various means to
fulfilling a single element. Id. at 2256. One of
those cases-Howard, 742 F.3d at 1348-guides our
Howard, the Eleventh Circuit reviewed Alabama's
third-degree burglary statute, which defined building as
"[a]ny structure which may be entered and utilized by
persons for business, public use, lodging or the storage of
goods." 742 F.3d at 1348 (alteration in original)
(quoting Ala. Code § 13A-7-1(2) (1979)). According to
the statutory definition in force at the time,
"structure . . . includes any vehicle, aircraft
or watercraft used for the lodging of persons or carrying on
business therein" and also "includes any
railroad box car or other rail equipment or trailer or
tractor trailer or combination thereof." Id.
(quoting Ala. Code § 13A-7-1(2) (1979)). Because
"[t]he items that follow each use of the word
'includes' in the statute are non-exhaustive
examples, " the Eleventh Circuit held that Alabama's
third-degree burglary statute delineated means rather than
elements, rendering the statute indivisible. Id.
aggravated-burglary statute follows the pattern of
Alabama's third-degree burglary statute to a tee. It
defines "habitation" as "any structure . . .
which is designed or adapted for the overnight accommodation
of persons." Tenn. Code Ann. § 39-14-401(1)(A).
Tennessee's definition of habitation
"includ[es] . . . mobile homes, trailers, and
tents"; it also "[i]ncludes a
self-propelled vehicle that is designed or adapted for the
overnight accommodation of persons." Id. §
39-14-401(1)(B) (emphasis added). This non-exhaustive list of
"illustrative examples" therefore sets forth means
rather than elements. Additionally, our review of the case
law reveals no decision suggesting otherwise. As such,
Tennessee's aggravated-burglary statute is indivisible,
thereby foreclosing application of the modified categorical
Tennessee's aggravated-burglary statute is both broader
than generic burglary under the categorical approach and
indivisible, a conviction under the statute does not count as
a violent felony under the ACCA. We therefore REVERSE and
REMAND for resentencing consistent with this opinion.