                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4096


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DESMOND RA’KEESH WHITE,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Thomas E. Johnston,
District Judge. (2:13-cr-00224-1)


Argued:   March 24, 2016                Decided:   September 9, 2016


Before AGEE and WYNN, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Affirmed in part, vacated in part, and remanded by published
opinion. Judge Wynn wrote the opinion, in which Judge Agee and
Judge Schroeder joined.


ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.    Jennifer
Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.    ON BRIEF: Christian M. Capece,
Federal Public Defender, Lex A. Coleman, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. R. Booth Goodwin II,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.




                              2
WYNN, Circuit Judge:

     Defendant Desmond Ra’Keesh White pled guilty to possession

of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).

The district court sentenced Defendant under the Armed Career

Criminal Act (“ACCA”), imposing the mandatory minimum sentence

of 180 months’ imprisonment. 18 U.S.C. § 924(e).

     On appeal, Defendant challenges the district court’s denial

of his motion to suppress firearm evidence, an issue preserved

for appeal by conditional plea.            Defendant also challenges the

enhancement of his sentence under the ACCA.               Defendant argues

that, in light of Johnson v. United States, 135 S. Ct. 2551

(2015), a case decided during the pendency of this appeal, the

district court erred in finding that his prior West Virginia

burglary convictions constitute qualifying predicate crimes for

purposes of the ACCA.

     For the reasons that follow, we affirm the district court’s

denial of the suppression motion but find that, because of an

intervening    change    in   law   following   sentencing,     the   district

court     erroneously   sentenced     Defendant   under   the    ACCA.     We

therefore     affirm    Defendant’s    conviction,    vacate     Defendant’s

sentence, and remand for resentencing.

                                      I.

     On     July   9,   2013,   Corporal     Justin   Doughty     (“Corporal

Doughty”) of the Charleston Police Department was on patrol in a

                                       3
marked    police     cruiser    in    Charleston,       West     Virginia    when   he

observed a car veer out of its lane. 1               Corporal Doughty initiated

a traffic stop to ascertain whether the driver was impaired.

Erica Teunis was driving the car.                Defendant was in the front

passenger seat, and another male, referred to only as “Bone,”

was seated in the rear.

     When he approached the driver’s window, Corporal Doughty

smelled an      odor    of   burned    marijuana      emanating     from    the    car.

After obtaining Ms. Teunis’s driver’s license, Corporal Doughty

asked Ms. Teunis to exit the car in order to speak with her

outside   the    presence      of    the   two   passengers.         Based    on    his

observation     of     and   conversation        with      Ms.   Teunis,     Corporal

Doughty   concluded      that   she    was     not   intoxicated      or    otherwise

impaired.       While    assessing     whether       Ms.   Teunis    was    impaired,

Corporal Doughty also inquired about the odor of marijuana.                         Ms.

Teunis responded that she did not smoke marijuana but did not

know about the other two passengers in the car.

     After speaking with Ms. Teunis, Corporal Doughty requested

that Defendant exit the car and then asked Defendant about the

marijuana odor.        Defendant denied having anything illegal in the



     1 Because Defendant appeals the denial of a motion to
suppress, we recount the factual background in the light most
favorable to the government, the prevailing party below.     See
United States v. Uzenski, 434 F.3d 690, 704 (4th Cir. 2006).



                                           4
vehicle.    Corporal Doughty then placed Defendant in his police

cruiser,    otherwise       unrestrained,     and   returned     to   the    car   to

speak with Bone.          While speaking with Bone, Corporal Doughty

observed a firearm tucked in a piece of plastic molding on the

side of the passenger seat where Defendant had been sitting.                       At

that    time,    Corporal    Doughty   returned     to    his    cruiser,     placed

Defendant in handcuffs, and radioed for backup.

       When backup officers arrived, Corporal Doughty returned to

the car and removed the firearm.              After being read his Miranda

rights, Defendant admitted to Corporal Doughty that the firearm

belonged to him.

       During    the   stop,    Corporal      Doughty    also    called      for   an

officer to conduct a canine sniff to investigate the marijuana

odor.    The canine alerted at the passenger door and the car’s

center console, but it is unclear from the record if the search

revealed a detectable amount of marijuana.

       Defendant was indicted in the United States District Court

for the Southern District of West Virginia for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Defendant moved to suppress the firearm evidence obtained from

the    traffic    stop.      Following   a    hearing,     the   district      court

denied the motion.           The district court found that reasonable

suspicion       supported     the   initial     stop     based    upon      Corporal

Doughty’s observation of Ms. Teunis’s car veering out of its

                                         5
lane.    United    States      v.   White,       No.      2:13-CR-00224,       2014     WL

4629385, at *4 (S.D.W. Va. Sept. 15, 2014).                           The court also

concluded that the odor of marijuana provided Corporal Doughty

with    reasonable    suspicion      to    extend         the    traffic      stop    and,

ultimately, probable cause to search the passenger compartment

of the car, where the firearm was recovered.                     Id. at *6.

       Defendant     subsequently     entered          into     a    conditional      plea

agreement   with     the     government,      in    which       he   agreed    to     plead

guilty to being a felon in possession of a firearm.                        Pursuant to

the plea agreement, Defendant preserved his right to appeal the

denial of the suppression motion.                  Defendant entered his guilty

plea on October 1, 2014.

       In the presentence report, the probation officer classified

Defendant as an armed career criminal under the ACCA, based on a

prior West Virginia state robbery conviction and three prior

West    Virginia     state     burglary       convictions.            At   sentencing,

Defendant   did    not     object   to    the      ACCA    designation.          Finding

Defendant subject to the ACCA sentence enhancement, the district

court   sentenced     Defendant      to    the      mandatory        minimum    term    of

fifteen years’ imprisonment. See 18 U.S.C. § 924(e)(1).                              Absent

the enhancement, Defendant would have faced a maximum sentence

of ten years. 18 U.S.C. § 924(a)(2).




                                          6
                                          II.

                                          A.

       We first consider Defendant’s argument that the district

court    erred      in   refusing    to     suppress       the   firearm     evidence

obtained      during     the   traffic    stop.      In    particular,      Defendant

claims    that     the    evidence    was       obtained    only   after     Corporal

Doughty unconstitutionally prolonged the stop.                         Regarding this

challenge, we review the district court’s factual findings for

clear error and its legal conclusions de novo. United States v.

Perkins, 363 F.3d 317, 320 (4th Cir. 2004).

       When    a    police     officer    stops      a     car   and     detains   its

occupants, the traffic stop amounts to a “seizure” within the

meaning of the Fourth Amendment. Brendlin v. California, 551

U.S. 249, 255 (2007); Whren v. United States, 517 U.S. 806, 809–

10 (1996).         Therefore, to pass constitutional muster, the stop

must “not be ‘unreasonable’ under the circumstances.” Whren, 517

U.S. at 810.

       We employ the two-prong standard articulated in Terry v.

Ohio, 392 U.S. 1 (1968), to assess the constitutionality of a

traffic stop. United States v. Vaughan, 700 F.3d 705, 709 (4th

Cir.    2012).       First,     we   examine      whether    the   officer     had   a

constitutionally adequate basis for initiating the traffic stop.

United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992).

Second, we examine whether the officer’s subsequent actions were

                                            7
“‘sufficiently limited in scope and duration.’” United States v.

Guijon-Ortiz, 660 F.3d 757, 764 (4th Cir. 2011) (quoting Florida

v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)).

      As to the first prong, reasonable suspicion or probable

cause to believe that a traffic violation has occurred provides

law enforcement officers with a constitutionally adequate basis

to   initiate   a   traffic   stop.   Whren,   517   U.S.   at   810;   United

States v. Kellam, 568 F.3d 125, 136 (4th Cir. 2009) (“[I]f an

officer has probable cause or a reasonable suspicion to stop a

vehicle,   there    is   no   intrusion   upon   the   Fourth    Amendment.”

(quoting United States v. Hassan El, 5 F.3d 726, 730 (4th Cir.

1993))).

      Under the second prong, the scope of the traffic stop must

not exceed the “least intrusive means reasonably available to

verify or dispel the officer’s suspicion in a short period of

time.” Guijon-Ortiz, 660 F.3d at 764 (quoting Royer, 460 U.S. at

500).   Further, the duration of the stop must be reasonable in

light of its purpose. See id.; see also Illinois v. Caballes,

543 U.S. 405, 407 (2005) (noting that a traffic stop may “become

unlawful if it is prolonged beyond the time reasonably required

to complete [its] mission”).          In the context of a stop for a

traffic violation, the officer may “request[] a driver’s license

and vehicle registration, run[] a computer check, and issu[e] a

ticket.” Guijon-Ortiz, 660 F.3d at 764-65 (quoting United States

                                      8
v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011)).                                   The officer

must   limit   the       duration      of    the       stop   to     the   length          of    time

reasonably     necessary         to     “issue         the    driver       a    citation         and

determine that the driver is entitled to operate his vehicle.”

United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008).

“[W]hen     [the]     tasks      tied       to    the     traffic      infraction           are—or

reasonably should have been—completed,” however, the officer’s

“[a]uthority for the seizure . . . ends.” Rodriguez v. United

States, 135 S. Ct. 1609, 1614 (2015).

       To   prolong       the    stop       beyond      the    scope       of       the    traffic

violation,     the       officer      must       obtain      the    driver’s         consent      or

possess reasonable suspicion of criminal activity. United States

v. Williams, 808 F.3d 238, 245–46 (4th Cir. 2015); Vaughan, 700

F.3d at 710.         “In order to demonstrate reasonable suspicion, a

police officer must offer ‘specific and articulable facts’ that

demonstrate         at     least        ‘a        minimal          level       of         objective

justification’ for the belief that criminal activity is afoot.”

Branch, 537 F.3d at 337 (quoting Illinois v. Wardlow, 528 U.S.

119, 123 (2000)).

       Defendant     does       not   challenge         the    initial         basis       for   the

traffic stop; it is undisputed that Corporal Doughty observed

Ms. Teunis’s vehicle veer out of its lane prior to the stop. See

W.   Va.    Code    § 17C-7-9(a)(1)              (“A   vehicle      shall       be    driven       as

nearly as practicable entirely within a single lane and shall

                                                 9
not    be     moved       from    such        lane      until       the    driver       has    first

ascertained        that        such   movement          can    be    made       with    safety.”).

Rather, Defendant challenges the stop’s duration.                                 Specifically,

Defendant argues that once Corporal Doughty determined that Ms.

Teunis      was    not     intoxicated         or       otherwise         impaired,      the   stop

should have ended.              Defendant’s argument is without merit.

       This Court has “repeatedly held that the odor of marijuana

alone can provide probable cause to believe that marijuana is

present in a particular place.” United States v. Humphries, 372

F.3d 653, 658 (4th Cir. 2004).                           Therefore, “when marijuana is

believed      to    be     present       in    an       automobile        based    on    the    odor

emanating therefrom, we have found probable cause to search the

automobile.” Id.; see also, e.g., United States v. Lewis, 606

F.3d 193, 198 (4th Cir. 2010) (finding probable cause justifying

a vehicle search when an officer “smelled the odor of marijuana

emanating from the vehicle”); United States v. Carter, 300 F.3d

415, 422 (4th Cir. 2002) (holding that an officer “clearly had

probable      cause       to    search       the     passenger       compartment         of    [the]

vehicle without a warrant, based on the burning marijuana he

smelled as he approached the car”).

       Corporal Doughty smelled the odor of burned marijuana when

he    first    approached         the    car—before           he    had    an    opportunity     to

investigate         the     potential         traffic         infraction        that     initially

justified         the     stop.         At    that       point,      Corporal       Doughty      had

                                                   10
reasonable suspicion to extend the traffic stop for a period of

time sufficient to investigate the marijuana odor. Humphries,

372    F.3d       at     658;    see       also     Wardlow,        528     U.S.    at     123

(“[R]easonable           suspicion       is   a    less     demanding       standard      than

probable          cause.”       (internal          quotation         marks      omitted)).

Accordingly, the district court did not err in holding that the

odor     of       burned     marijuana        provided        Officer       Doughty       with

reasonable suspicion to extend the stop.

       Defendant also challenges the district court’s decision to

credit      Corporal       Doughty’s       testimony        that    he    smelled     burned

marijuana.          We     accord    a    district     court’s       findings      based   on

assessments         of     witness       credibility        the    “highest     degree      of

appellate deference.” United States v. Thompson, 554 F.3d 450,

452 (4th Cir. 2009) (quotation omitted).                           Accordingly, we will

overturn      a    district     court’s       credibility         finding    only    if    the

witness’ testimony is “so internally inconsistent or implausible

on its face that a reasonable factfinder would not credit it” or

if the testimony is contradicted by objective evidence. Anderson

v. City of Bessemer City, 470 U.S. 564, 575 (1985).                                   At the

suppression        hearing,     Corporal          Doughty    testified       unequivocally

that   he     smelled       burned       marijuana.         Further,      his   subsequent

actions—inquiring with the car’s occupants concerning marijuana

and requesting a canine sniff—corroborate his statement.                                   The



                                              11
district court properly exercised its discretion in crediting

Corporal Doughty’s testimony.

       Accordingly, the district court did not err when it denied

Defendant’s motion to suppress.                    We therefore affirm Defendant’s

conviction.

                                              B.

       We    next    consider     Defendant’s         challenge       to    his    sentence

under the ACCA.             The ACCA prescribes a fifteen-year mandatory

minimum sentence when a defendant is convicted of being a felon

in     possession      of    a   firearm       and    has     three    or    more       prior

convictions         that    qualify    as     “violent      felon[ies].”          18   U.S.C.

§ 924(e)(1).         The ACCA defines “violent felony” to mean a felony

that

       (i)       has as an element the use, attempted use, or
                 threatened use of physical force against the
                 person of another; or

       (ii) is burglary, arson, or extortion, involves use of
            explosives, or otherwise involves conduct that
            presents a serious potential risk of physical
            injury to another . . . .

Id. § 924(e)(2)(B).

       The final clause of the above definition—which references

conduct      “present[ing]       a    serious        potential      risk    of     physical

injury      to    another”—has       become    known     as   the     ACCA’s      “residual

clause.”          Johnson, 135 S. Ct. at 2556.                   In Johnson, a case

decided during the pendency of this appeal, the Supreme Court


                                              12
held that the residual clause is unconstitutionally vague and

therefore violates due process.                    Id. at 2557.           However, the

Court’s      holding   “d[id]          not     call    into     question     . . .    the

remainder of the [ACCA’s] definition of a violent felony.”                             Id.

at 2563.

      Shortly     after      Johnson,           Defendant       filed      supplemental

briefing      challenging        his    sentence.         Defendant      argues      that,

although his burglary convictions under W. Va. Code § 61-3-11(a) 2

met   the    definition     of    a    “violent       felony”    under    the   residual

clause at the time of his sentencing, they can no longer qualify

as such in light of that clause’s invalidation in Johnson.                             The

government counters that Defendant has abandoned this sentencing

claim because he did not raise the issue in his opening brief.

The       government   also        contends           that,     regardless      of     the

constitutionality      of    the       residual       clause,    the     West   Virginia

burglary convictions qualify as ACCA predicate crimes because

burglary is an offense specifically enumerated in the ACCA’s

“violent felony” definition.                 See 18 U.S.C. § 924(e)(2)(B)(ii).




      2Although the presentence investigation report does not
specify the subsection of West Virginia’s burglary statute under
which Defendant was convicted, the sentence Defendant received
corresponds to W. Va. Code § 61-3-11(a). Likewise, the parties’
briefing    indicates  Defendant  was   convicted   under   that
subsection.



                                              13
                                           1.

       As   a    preliminary        matter,     we    address     the    government’s

argument that Defendant has abandoned the opportunity to appeal

his sentence because Defendant raised the issue for the first

time in supplemental briefing, rather than in his opening brief.

Typically, we consider “contentions not raised in the argument

section of the opening brief [to be] abandoned.”                        United States

v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004); see also Fed

R. App. P. 28(a)(8)(A); Edwards v. City of Goldsboro, 178 F.3d

231, 241 n.6 (4th Cir. 1999).                 However, this Court may, in its

discretion, deviate from this rule in appropriate circumstances.

See A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356, 369

(4th   Cir.     2008)     (explaining     that    the    Court    may   exercise    its

discretion to consider an abandoned argument if “a miscarriage

of   justice     would     otherwise      result”     (internal    quotation    marks

omitted)).

       Although      we    have     not    squarely       addressed      whether     an

intervening case presents such a circumstance, our unpublished

decisions       indicate     that    we    have      routinely    allowed—and      even

requested—supplemental briefing on new arguments or claims when

an intervening court decision upends precedent relevant to an

appeal.     See, e.g., United States v. Billups, No. 14-4959, 2016

WL 3254700, at *1 n.1 (4th Cir. June 14, 2016) (considering a

challenge       to   an    ACCA     sentence      that    was    first    raised    in

                                           14
supplemental briefing after Johnson); United States v. Starkie,

615 F. App’x 132, 133 (4th Cir. 2015) (granting a petition for

panel rehearing and directing the parties to submit supplemental

briefing “addressing whether, in light of Johnson, the district

court committed reversible error by classifying [the defendant]

as an armed career criminal under the ACCA”); United States v.

Musleh, 106 F. App’x 850, 857 n.4 (4th Cir. 2004) (noting the

Court’s sua sponte order for supplemental briefing after Blakely

v. Washington, 542 U.S. 296 (2004)).          Our sister circuits do the

same.     See, e.g., United States v. Durham, 795 F.3d 1329, 1330–

31 (11th Cir. 2015); Joseph v. United States, 135 S. Ct. 705,

706     (2014)   (Kagan,   J.,   respecting     the   denial   of   cert.)

(collecting cases).

      Additionally, common sense dictates that an appellant can

only “abandon” an argument that was actually available to him.

See Joseph, 135 S. Ct. at 706 (“When a new claim is based on an

intervening Supreme Court decision . . . the failure to raise

the claim in an opening brief reflects not a lack of diligence,

but merely a want of clairvoyance.”).            We therefore hold that

when an intervening decision of this Court or the Supreme Court

affects precedent relevant to a case pending on direct appeal,

an appellant may timely raise a new argument, case theory, or

claim based on that decision while his appeal is pending without

triggering the abandonment rule.

                                    15
    That is exactly what happened in this case.            At the time

Defendant filed his opening brief—regardless of whether his West

Virginia burglary convictions constitute “burglary” for purposes

of Section 924(e)(2)(B)(ii)—it would have been futile for him to

argue that those convictions did not qualify as ACCA violent

felonies because they fell under the residual clause.          In United

States v. Davis, 689 F.3d 349 (4th Cir. 2012), we held that the

similar West Virginia crime of attempted breaking and entering

qualified as such under the residual clause because the crime

posed the possibility of a “face-to-face confrontation between

the burglar and a third party.” Id. at 358 (quotation omitted).

This rationale would have applied equally to burglary under W.

Va. Code § 61-3-11(a).          Moreover, at the time of Defendant’s

opening brief, it was settled law that the residual clause was

not unconstitutionally vague.        James v. United States, 550 U.S.

192, 210 n.6 (2007); see also Sykes v. United States, 564 U.S.

1, 15–16 (2011).        When the Supreme Court decided Johnson, it

expressly   overruled    this    precedent.   135   S.   Ct.   at   2563.

Shortly thereafter, Defendant sought this Court’s leave to file

supplemental briefing and challenge his sentence under the ACCA.

We therefore conclude that Defendant has properly raised his

ACCA claim.




                                    16
                                        2.

        Turning to the merits, the question before us is whether

Defendant’s West Virginia burglary convictions can still meet

the definition of an ACCA violent felony, despite the Supreme

Court’s invalidation of the residual clause.                    Specifically, we

consider       whether    Defendant’s   convictions       for    burglary       under

W. Va.     Code    § 61-3-11(a)    qualify        as   “burglary”      within     the

meaning of the ACCA. See 18 U.S.C. § 924(e)(2)(B)(ii).

        Because Defendant did not challenge his ACCA designation

before the district court, we review for plain error.                        Fed. R.

Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731–32

(1993).        Under the plain error standard, Defendant must show

that (1) there was an error; (2) the error is plain; and (3) the

error    affects     substantial    rights.       Molina-Martinez       v.    United

States, 136 S. Ct. 1338, 1343 (2016); Olano, 507 U.S. at 732.

We may then exercise our discretion to correct the error if it

“‘seriously affects the fairness, integrity or public reputation

of judicial proceedings.’” Molina-Martinez, 136 S. Ct at 1343

(quoting Olano, 507 U.S. at 736).

        To determine whether a prior conviction qualifies as an

ACCA enumerated offense, courts employ what is known as “the

categorical approach.” Descamps v. United States, 133 S. Ct.

2276, 2283 (2013).          Under this approach, the court “focus[es]

solely    on    whether    the   elements    of    the   crime    of    conviction

                                        17
sufficiently match the elements of [the listed] generic [crime],

while    ignoring     the    particular      facts     of    the    case.”        Mathis      v.

United    States,     136    S.    Ct.   2243,   2248       (2016).        An     offense’s

federal generic definition may differ from the offense’s state-

law definition.            Thus, in applying the categorical approach, a

state conviction will qualify as an enumerated offense, and thus

a predicate crime under the ACCA, only if the elements of the

state-law    crime     of    conviction      “are     the    same    as,     or    narrower

than,     those       of     the     [ACCA-enumerated]             generic        offense,”

regardless      of    whether      the     defendant    actually         committed           the

offense in its generic form. Id.; Descamps, 133 S. Ct. at 2283.

      Regarding the elements of the generic offense at issue in

this case, the Supreme Court has defined generic burglary as the

“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 (1990).                                Defendant

contends that the West Virginia burglary statute sweeps more

broadly than generic burglary because it covers enclosures other

than “building[s] or . . . structure[s].”                    We agree.

      Generic       burglary’s      “building    or    other       structure”       element

does not encompass every enclosure.                   For example, in Shepard v.

United   States,      544    U.S.    13,    15–16    (2005),       the   Supreme        Court

stated that the generic offense refers to burglary “committed in

a   building    or    enclosed      space    . . .     not    in    a    boat     or    motor

                                            18
vehicle.”       Similarly, the Supreme Court recently found an Iowa

burglary    statute    to   encompass     conduct          outside   the   bounds    of

generic burglary because the statute specified that the crime

could occur in a “land, water, or air vehicle.” Mathis, 136 S.

Ct.   at   2250   (quoting      Iowa   Code        § 702.12    (2013));     see    also

Taylor, 495 U.S. at 599 (describing a state burglary offense

that prohibited breaking and entering “any booth or tent, or any

boat or vessel, or railroad car” as nongeneric burglary (quoting

Mo. Rev. Stat. § 560.070 (1969) (repealed))).

      The burglary statute relevant here, W. Va. Code § 61-3-

11(a), provides:

      If any person shall, in the nighttime, break and enter, or
      enter without breaking, or shall, in the daytime, break and
      enter, the dwelling house, or an outhouse adjoining thereto
      or occupied therewith, of another, with intent to commit a
      crime therein, he shall be deemed guilty of burglary.

W. Va. Code § 61-3-11(a) (emphasis added).                      Section 61-3-11(c)

provides    a   non-exhaustive     list       of    those     enclosures    that    can

constitute a “dwelling house,” providing that

      [t]he term “dwelling house,” . . . shall include, but
      not be limited to, a mobile home, house trailer,
      modular home, factory-built home or self-propelled
      motor home, used as a dwelling regularly or only from
      time to time, or any other nonmotive vehicle primarily
      designed for human habitation and occupancy and used
      as a dwelling regularly or only from time to time.

Id.   § 61-3-11(c).           Significantly,         the     statutory     definition

includes “vehicle[s].” Id.             Indeed, the statute identifies a

“self-propelled       motor     home,”    a        vehicle    regulated     by     West

                                         19
Virginia’s Motor Vehicle Administration statutes, as an example

of a “dwelling house.” Id.; see id. § 17A-1-1(ll) (defining a

“[m]otor home” as a “vehicle”).                 Thus, in criminalizing burglary

of   a    dwelling     house,      the     West      Virginia       burglary    statute

encompasses      conduct    that      is   excluded     from    the    definition       of

generic burglary.

        The government nonetheless argues that the term dwelling

house     “substantially        corresponds”          with     generic      burglary’s

building    or    structure      element        because      the     term   refers     to

enclosures used as residences.                   Appellee’s Supp. Br. at 8–9.

Our decision in United States v. Henriquez, 757 F.3d 144 (4th

Cir. 2014), forecloses this argument.

        In Henriquez, we considered whether Maryland first degree

burglary,     which    requires        the      breaking      and    entering     of    a

“dwelling of another,” constitutes generic burglary under the

categorical      approach.      757    F.3d     at   148,     151.      Although       the

Maryland     statute       at    issue       “d[id]     not        define   the      term

‘dwelling,’” we found that Maryland state courts had construed

the term to mean “a place where a person resides and sleeps.”

Id. at 148–49.        Taking note of the fact that a Maryland court

“ha[d] already deemed a recreational vehicle a dwelling” and

that the dwelling definition adopted by Maryland courts “easily

could cover” other enclosures that the “United States Supreme

Court has clearly excluded . . . from the definition of generic

                                           20
burglary,” such as “houseboat[s],” we concluded that Maryland’s

first degree burglary statute encompassed conduct outside the

scope of generic burglary, and thus the statute did not qualify

as ACCA “burglary” under the categorical approach. Id. at 149–

50.

       The rationale from Henriquez governs this case.                       Like the

Maryland      definition     of    dwelling,        the    West   Virginia    burglary

statute’s reference to a dwelling house “easily could cover”

enclosures     that   are    excluded        from    the    generic    definition    of

burglary, such as vehicles. Id. at 149.                      Indeed, the statutory

definition of the term includes vehicles explicitly. W. Va. Code

§ 61-3-11(c).      And, just as it was immaterial in Henriquez that

Maryland’s      definition        of    “dwelling”        would     only   capture   an

enclosure “where a person resides or sleeps,” id., the fact that

the    West   Virginia      definition        of    “dwelling     house”    refers   to

enclosures used as residences or dwellings “regularly or . . .

from time to time,” W. Va. Code § 61-3-11(c), does not change

the result here.         Because W. Va. Code § 61-3-11(a) criminalizes

burglary of a “dwelling house”—a term that reaches enclosures

excluded from generic burglary’s building or structure element—

Defendant’s prior burglary convictions do not qualify as the

ACCA   enumerated     offense          of   “burglary”      under    the   categorical

approach.



                                             21
         Accordingly,   we    conclude        that   Defendant’s   prior      West

Virginia burglary convictions do not meet the ACCA definition of

a   “violent    felony,”     and   the    district     court   thus   erred    in

enhancing Defendant’s sentence under the ACCA. 3




     3 A modification of the categorical approach—aptly named the
“modified categorical approach”—may be used when the underlying
state crime is “divisible” such that it “consists of ‘multiple,
alternative elements’ creating ‘several different crimes,’ some
of which would match the generic federal offense and others that
would not.” Omargharib v. Holder, 775 F.3d 192, 197-98 (4th Cir.
2014) (quoting Descamps, 133 S. Ct. at 2284–85).        Under the
modified categorical approach, a sentencing court looks to so-
called   Shepard  documents,   such  as   the   indictment,   jury
instructions, or plea agreement, to ascertain which of the
alternative   elements   encompass  the   defendant’s   crime   of
conviction. Mathis, 136 S. Ct. at 2249 (citing Shepard, 544 U.S.
at 26).   The court then compares the elements of the crime of
conviction with those of the generic offense. Descamps, 133 S.
Ct. at 2281.

     During oral argument, the question was raised as to whether
W. Va. Code § 61-3-11(a) is divisible because it states
alternative locational elements. See W. Va. Code § 61-3-11(a)
(criminalizing entry into a “dwelling house, or an outhouse”
(emphasis added)).   Neither party briefed this issue, and the
district court did not address it below. Moreover, there are no
Shepard documents in the record pertinent to Defendant’s West
Virginia burglary convictions. We therefore need not and do not
reach the question of divisibility to resolve this appeal. See
United States v. McLeod, 808 F.3d 972, 977 (4th Cir. 2015)
(holding that a conviction under a divisible statute could not
qualify as ACCA “burglary” pursuant to the modified categorical
approach when there were no Shepard documents “to show that the
crime of conviction was generic burglary”).   Nor do we express
any view as to whether W. Va. Code § 61-3-11(a) satisfies the
other elements of generic burglary—such as the “unlawful or
unprivileged entry” element—under the categorical or modified
categorical approaches.



                                         22
       Having     determined        that    there    was    an      error,       we   address

whether the other requirements of the plain error standard are

met.       The second requirement of the plain error standard is that

the error must be “plain,” i.e., “clear or obvious.” Molina-

Martinez, 136 S. Ct. at 1343.                    In this regard, “[a]n error is

plain ‘if the settled law of the Supreme Court or this circuit

establishes       that      an    error    has    occurred.’”        United      States   v.

Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (quoting United

States       v.   Maxwell,        285     F.3d    336,   342        (4th    Cir.      2002)).

Moreover, regardless of “whether a legal question was settled or

unsettled at the time of trial, ‘it is enough that an error be

“plain” at the time of appellate consideration.’” Henderson v.

United States, 133 S. Ct. 1121, 1130 (2013) (quoting Johnson v.

United States, 520 U.S. 461, 468 (1997)).

       Controlling precedent establishes that the error at issue

in   this     appeal     is      plain.     After    Johnson,        Defendant’s        prior

convictions cannot qualify as ACCA violent felonies under the

residual clause.            Further, in light of this circuit’s decision

in   Henriquez,        W.     Va.   Code     § 61-3-11(a)        “is       not   reasonably

susceptible       to   an     interpretation”        that      it    falls       within   the

generic definition of burglary under the categorical approach. 4


       4
       Prior decisions from this circuit finding West Virginia
state burglary convictions to qualify as ACCA burglary do not
undercut this conclusion. See United States v. Lewis, 75 F.
(Continued)
                                             23
Maxwell, 285 F.3d at 342.        We therefore conclude that the second

requirement of the plain error standard is satisfied.

       To satisfy the third plain error requirement the error must

affect substantial rights.           In the sentencing context, an error

affects substantial rights if there is “a reasonable probability

that,” but for the error, “the district court would have imposed

a   different   sentence.”     Molina-Martinez,             136   S.   Ct.    at    1349.

Without the ACCA enhancement, the statutory maximum sentence for

Defendant’s felon in possession of a firearm conviction is ten

years.     18   U.S.C.   § 924(a)(2).            Thus,      the   sentencing        error

affected Defendant’s substantial rights by compelling a five-

year increase in his term of incarceration. See United States v.

Boykin,   669   F.3d   467,   472     (4th      Cir.   2012)      (finding        that   an

erroneous ACCA designation affected the defendant’s substantial

rights); Maxwell,      285    F.3d    at    342–43     (finding        a   sentence      in

excess    of    the    statutory       maximum         to     affect       defendant’s

substantial rights).

       Finally, we may exercise our discretion to correct an error

that   “‘seriously     affects       the    fairness,        integrity       or    public



App’x 164, 166 (4th Cir. 2003); United States v. Blankenship,
No. 92-5354, 1993 WL 40857, at *1 (4th Cir. Feb. 18, 1993).
These unpublished decisions not only predate Henriquez, but also
the Supreme Court’s decision in Descamps, which clarified the
proper application of the categorical and modified categorical
approaches. See 133 S. Ct. at 2283–86.



                                           24
reputation    of   judicial   proceedings.’”   Molina-Martinez,    136   S.

Ct. at 1343 (quoting Olano, 507 U.S. at 736).              Here, “[t]here

would clearly be a ‘miscarriage of justice’ were we to allow

. . . a severe sentence enhancement to be applied inconsistently

with the law.” Boykin, 669 F.3d at 472.             We therefore exercise

our discretion to grant Defendant relief.

                                   III.

     For     the    foregoing     reasons,     we     affirm   Defendant’s

conviction,     vacate    Defendant’s     sentence,     and    remand    for

resentencing.


                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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