                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,            No. 18-35457
         Plaintiff-Appellee,
                                        D.C. No.
             v.                  3:08-cr-00057-TMB-1

TERRANCE LEE JONES,
      Defendant-Appellant.              OPINION


     Appeal from the United States District Court
              for the District of Alaska
  Timothy M. Burgess, Chief District Judge, Presiding

         Argued and Submitted June 13, 2019
                 Anchorage, Alaska

                  Filed March 4, 2020

   Before: A. Wallace Tashima, William A. Fletcher,
         and Marsha S. Berzon, Circuit Judges.

            Opinion by Judge W. Fletcher
2                    UNITED STATES V. JONES

                            SUMMARY*


                          28 U.S.C. § 2255

   The panel affirmed on different grounds the district
court’s denial of Terrance Lee Jones’s 28 U.S.C. § 2255
motion to vacate his criminal sentence, which had been
enhanced pursuant to the Armed Career Criminal Act
(ACCA), in a case in which Jones was convicted of unlawful
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

    The district court held that the § 2255 motion was
untimely, but agreed with Jones that his prior conviction for
Colorado burglary was not a conviction for a violent felony
under the modified categorical approach, and that Jones
therefore was not eligible for the ACCA enhancement.

    The district court certified for appeal the question whether
a claim of actual innocence of a noncapital sentence can be
asserted to overcome a procedural default when the petitioner
has received a sentence for which he was statutorily
ineligible.

    The panel did not need to reach the certified question
because it held that Jones’s prior conviction for Colorado
second-degree burglary of a dwelling was a conviction for a
violent felony, and that he was therefore properly subject to
the ACCA enhancement. The panel explained that the prior
conviction qualified as a violent felony because Colo. Rev.
Stat. § 18-4-203(2)(a) covers only conduct within the generic

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. JONES                      3

offense of burglary as defined by the Supreme Court in
United States v. Stitt, 139 S. Ct. 399 (2018).


                         COUNSEL

Michelle Nesbett (argued), Nesbett & Nesbett P.C.,
Anchorage, Alaska, for Defendant-Appellant.

Karen Vandergaw (argued), Assistant United States Attorney;
Bryan Schroder, United States Attorney; United States
Attorney’s Office, Anchorage, Alaska; for Plaintiff-Appellee.


                          OPINION

W. FLETCHER, Circuit Judge:

    Terrance Lee Jones appeals the district court’s denial of
his 28 U.S.C. § 2255 motion to vacate his criminal sentence.
We affirm.

    In 2008, Jones pleaded guilty in district court to one count
of unlawful possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). Such a conviction ordinarily carries a statutory
maximum penalty of ten years’ imprisonment. 18 U.S.C.
§ 924(a)(2). However, the Armed Career Criminal Act
(“ACCA”) imposes a fifteen-year mandatory minimum
sentence for violations of § 922(g) when the offender has
three or more previous convictions for a violent felony or a
serious drug offense. 18 U.S.C. § 924(e)(1). The sentencing
court found that Jones had three previous convictions for
violent felonies and sentenced him to eighteen years’
imprisonment.
4                 UNITED STATES V. JONES

    Jones moved to vacate his sentence under 28 U.S.C.
§ 2255. The district court held that his motion was time-
barred. But it noted that it agreed with Jones on the merits of
one of his claims for relief. In the district court’s view,
Jones’s prior conviction for Colorado burglary was not a
conviction for a violent felony under the modified categorical
approach, and Jones therefore was not eligible for the ACCA
career offender sentencing enhancement. The district court
issued a certificate of appealability on the following issue:
“[W]hether a claim of actual innocence of a noncapital
sentence can be asserted to overcome a procedural default
when the petitioner has received a sentence for which he was
statutorily ineligible.”

    On appeal, Jones argues that he is actually innocent of his
sentence and that he therefore should be allowed to pursue a
§ 2255 motion under the miscarriage-of-justice exception to
the one-year limitations period under § 2255(f). We review
de novo. United States v. Swisher, 811 F.3d 299, 306 (9th
Cir. 2016) (en banc). We do not reach the certified question
because we hold that Jones’s prior conviction for Colorado
burglary was a conviction for a violent felony, and that he
was therefore properly subject to the career offender
enhancement.

    ACCA defines a “violent felony” to include any state or
federal felony “that ‘is burglary.’” Mathis v. United States,
136 S. Ct. 2243, 2248 (2016) (quoting 18 U.S.C.
§ 924(e)(2)(B)(ii)). “A crime counts as ‘burglary’ under the
Act if its elements are the same as, or narrower than, those of
the generic offense.” Id. (emphasis in original). The generic
offense consists of “an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to
commit a crime.” Taylor v. United States, 495 U.S. 575, 598
                   UNITED STATES V. JONES                       5

(1990). The Supreme Court recently explained in United
States v. Stitt, 139 S. Ct. 399, 407 (2018), that under generic
burglary “a building or other structure” includes a “vehicle[]
designed or adapted for overnight use.”

     Under the modified categorical approach, a court must
first determine whether the statute is divisible into sets of
elements for different offenses or whether it merely describes
alternative means of committing the same offense. Mathis,
136 S. Ct. at 2256. “If statutory alternatives carry different
punishments, then under Apprendi they must be elements.”
Id. (citing, e.g., Colo. Rev. Stat. § 18-4-203 (2015)).
Statutory alternatives that carry the same punishment may
nonetheless describe elements of different offenses if
documents such as indictments and jury instructions
“referenc[e] one alternative term to the exclusion of all
others.” Id. at 2257. If a statute is divisible, a court “looks to
a limited class of documents (for example, the indictment,
jury instructions, or plea agreement and colloquy) to
determine what crime, with what elements, a defendant was
convicted of.” Id. at 2249.

     Jones pleaded guilty in Colorado state court in 1990 to
second degree burglary as a class three felony under Colorado
Revised Statutes § 18-4-203. The criminal complaint charged
that Jones “did unlawfully, feloniously and knowingly enter
and remain unlawfully in the dwelling of [the victims].” That
is, Jones pleaded guilty to a violation of § 18-4-203(2)(a).

    Colorado defines second degree burglary as follows:

        (1) A person commits second degree burglary,
        if he knowingly breaks an entrance into, or
        enters, or remains unlawfully in a building or
6                UNITED STATES V. JONES

       occupied structure with intent to commit
       therein a crime against a person or property.

       (2) Second degree burglary is a class 4 felony,
       but it is a class 3 felony if:

           (a) It is a burglary of a dwelling; or

           (b) It is a burglary, the objective of which
           is the theft of a controlled substance, as
           defined in section 12-22-303(7), C.R.S.,
           lawfully kept within any building or
           occupied structure.

Colo. Rev. Stat. § 18-4-203 (1986).

    Colorado defines “dwelling” and “building” as follows:

       (g) “Dwelling” means a building which is
       used, intended to be used, or usually used by
       a person for habitation.

Colo. Rev. Stat. § 18-1-901 (1986).

       (1) “Building” means a structure which has
       the capacity to contain, and is designed for the
       shelter of, man, animals, or property, and
       includes a ship, trailer, sleeping car, airplane,
       or other vehicle or place adapted for overnight
       accommodations of persons or animals, or for
       carrying on of business therein, whether or not
       a person or animal is actually present.

Colo. Rev. Stat. § 18-4-101 (1986).
                  UNITED STATES V. JONES                      7

    The Colorado statute is divisible in several respects—as
to § 18-4-203(1) and (2), and as to § 18-4-203(2)(a) and (b).
Subsections (1) and (2) correspond to offenses with different
penalties. Paragraphs (a) and (b) of subsection (2) do not
result in different penalties, but both the criminal complaint
in Jones’s case and the Colorado pattern jury instructions
make clear that they contain alternative elements. See
Mathis, 136 S. Ct. at 2257. The statute is not divisible,
however, with respect to the different structures that may
constitute a dwelling. The question is whether a “dwelling,”
as defined in §§ 18-4-101 and 18-1-901, is the same as, or
narrower than, the definition of a “building or other structure”
in the federal generic offense.

    “Stitt indicates [that nonpermanent or mobile structures]
must be ‘adapted or used for overnight accommodation’” to
satisfy the building-or-other-structure element of generic
burglary. Mutee v. United States, 920 F.3d 624, 628 (9th Cir.
2019) (per curiam) (quoting Stitt, 139 S. Ct. at 404). A
“building” as defined in § 18-4-101 covers significantly more
than the generic element of “building or other structure,”
because it includes vehicles adapted for the overnight
accommodation of people or animals, as well as structures
that are designed to shelter only property. But the statutory
definition of “dwelling” under § 18-1-901, which is tied to,
but narrows, the definition contained in § 18-4-101, covers no
more than the generic element. Vehicles included in the
offense of burglary of a dwelling, as dwelling is defined in
§§ 18-4-101 and 18-1-901, are only those that are both
“adapted for overnight accommodations . . . or for carrying
on of business therein” and “used, intended to be used, or
usually used by a person for habitation.” The requirement of
adaptation for overnight accommodation means that a
dwelling under the statute cannot cover, for example, “a car
8                UNITED STATES V. JONES

in which a homeless person occasionally sleeps.” Stitt, 139 S.
Ct. at 407. And the requirement of use, intended use, or usual
use by a person for habitation means that it cannot cover a
vehicle merely “used[] for the storage or safekeeping” of
property. Id. (distinguishing Mathis).

    We conclude that Jones’s prior crime of conviction of
second degree burglary of a dwelling under Colo. Rev. Stat.
§ 18-4-203(2)(a) covers only conduct within the generic
offense of burglary as defined by the Supreme Court in Stitt.
Jones was therefore properly sentenced under 18 U.S.C.
§ 924(e)(1).

    AFFIRMED.
