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Decided: October 30, 2015  

The Fourth Circuit concluded that the evidence the government offered with respect to at least four of the defendant’s five burglary convictions did not show that the convictions qualified as “violent felonies” under the Armed Career Criminal Act (ACCA) because the government was unable to demonstrate that the object of each conviction was a building or structure, apart from a vehicle, boat, or airplane.

McLeod pleaded guilty to unlawfully possessing a firearm in May of 2014. Since the presentence report showed that McLeod had five earlier convictions for second-degree burglary, the district court determined at sentencing that those convictions were “violent felonies” and that McLeod therefore qualified as an armed career criminal, requiring a sentence of at least 15 years imprisonment. On appeal, McLeod argues the two issues he preserved: “(1) that the district court should not have been able to enhance his sentence under ACCA because the government did not include his predicate convictions in the indictment and (2) that his 1998 South Carolina convictions for second-degree burglary do not qualify as “violent felonies” for ACCA sentence-enhancement purposes.”

As to McLeod’s first argument, the Fourth Circuit determined that the argument was foreclosed by a decision previously made by the Supreme Court. See Almendarez-Torres v. United States, 523 U.S. 224 (1998). Therefore, since that case is still controlling law, the Fourth Circuit affirmed the district court’s rejection of this argument.

Second, McLeod contended that the district court erred in relying on his 1998 South Carolina convictions for second-degree burglary to enhance his sentence under ACCA, claiming those convictions do not qualify as predicate convictions under the ACCA. Specifically, McLeod argues that the elements of the offense for which he was convicted in South Carolina are broader than generic burglary because the statute prohibits not only the breaking and entering of a building and structure but also of other “edifices and things.” McLeod points out that the statute of conviction also prohibits the breaking and entering of vehicles, boats, or planes. Therefore, he argues that the convictions cannot serve as predicate burglary convictions, which are required to be limited to the breaking and entering into a building or structure. Conversely, the government argued that his previous South Carolina convictions qualify as predicate offenses under the ACCA because the relevant indictments show that his convictions were for “burglary of a building,” which matches the generic definition of burglary determined by the Supreme Court.

The ACCA states that any person convicted under 18 U.S.C. § 922(g) who has three prior convictions for a violent felony shall be imprisoned for not less than 15 years. A violent felony includes the crime of burglary when punishable by imprisonment for a term exceeding one year. When examining burglary as a predicate offense under the ACCA, it intended to refer to a generic definition of burglary and not the state definitions. The Supreme Court defined generic burglary as an “unlawful or privileged entry into, or remaining in, a building or structure, with intent to commit a crime.” When a statute defines burglary with alternative elements such that one alternative corresponds to generic burglary and another does not, a sentencing court may apply the “modified categorical approach,” which allows it to examine relevant court records or documents to find out whether the defendant was convicted of generic burglary or an alternative form of burglary that would not qualify as a predicate offense. Those documents are often limited to the charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial court to which the defendant assented.

Here, McLeod was charged with second-degree burglary of a building under South Carolina law, which includes entering a building without consent. This crime includes a sentence for over one year. At first glance, this seems to mimic the definition of generic burglary; however, in South Carolina a “building” can include a structure, vehicle, watercraft, or aircraft. While the modified categorical approach would allow the district court to determine whether McLeod’s plea involved generic or nongeneric burglary, the government presented no documentation to show that the crime of conviction was generic burglary. Therefore, since the Fourth Circuit could not determine whether McLeod pleaded guilty to generic burglary with respect to four of his convictions, they cannot serve as predicate offenses under the ACCA. McLeod’s conviction was affirmed, but his sentence was vacated and remanded for resentencing.  

Full Opinion

Austin T. Reed