                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1712
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                  Preston C. Phillips

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                           Submitted: February 17, 2017
                               Filed: April 4, 2017
                                 ____________

Before RILEY, Chief Judge,1 LOKEN and BENTON, Circuit Judges.
                               ____________

BENTON, Circuit Judge.

       This case is on remand from the Supreme Court of the United States. Phillips
v. United States, 137 S. Ct. 634 (2017). Preston Charles Phillips pled guilty to being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(e).

      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
The district court sentenced him as an armed career criminal. He appealed,
challenging, among other things, the ACCA designation. This court affirmed. United
States v. Phillips, 817 F.3d 567 (8th Cir. 2016). The Supreme Court vacated the
judgment and remanded for “further consideration in light of Mathis v. United States,”
136 S. Ct. 2243 (2016). Phillips, 137 S. Ct. at 634. In light of Mathis, this court
vacates the sentence and remands for resentencing.

      Phillips objected to his classification as an armed career criminal, claiming his
Missouri convictions for second-degree domestic assault and second-degree burglary
were not violent felonies. Applying the “categorical approach,” this court held that
two second-degree domestic assault convictions were violent felonies under the
ACCA’s force clause, 924(e)(2)(B)(i), and one second-degree burglary conviction was
an enumerated violent felony in 924(e)(2)(B)(ii).

       On certiorari, the Supreme Court vacated and remanded for further
consideration in light of Mathis. Id. This court vacated its March 8, 2016 opinion,
recalled the mandate, and reopened the case.

       “[T]he Supreme Court’s decision in Mathis, which did not address the ACCA’s
force clause, does not alter [the] prior decision that [Phillips’ convictions for second-
degree domestic assault] were ACCA violent felonies.” United States v. Lamb, 847
F.3d 928, 930 (8th Cir. 2017). “Mathis does require additional analysis” whether
Phillips’ second-degree burglary convictions were “enumerated ACCA violent
felon[ies].” Id.

       Determining whether a past conviction is a violent felony, this court applies the
categorical approach, looking “‘only to the fact of conviction and the statutory
definition of the prior offense.’” United States v. Sykes, 844 F.3d 712, 715 (8th Cir.
2016), quoting Taylor v. United States, 495 U.S. 575, 602 (1990). “If the statute of



                                          -2-
conviction lists elements in the alternative, the sentencing court may apply the
‘modified categorical approach.’” Id.

      In United States v. Lamb, this court explained how to apply the “modified
categorical approach” to determine whether a burglary is a violent felony after Mathis:

      Many state burglary statutes are overinclusive, that is, they define
      burglary more broadly than generic burglary. For example, a statute may
      include unlawful entry into places other than buildings, such as
      automobiles and vending machines. If an overinclusive statute has a
      “divisible” structure—defining multiple crimes by listing one or more
      elements in the alternative—the Court applies a “modified categorical
      approach” that “permits [federal] sentencing courts to consult a limited
      class of documents, such as indictments and jury instructions, to
      determine which alternative formed the basis of the defendant’s prior
      conviction.” Descamps, 133 S. Ct. at 2281. However, if the statute is
      overinclusive and not divisible, as in Descamps, no prior conviction
      under that statute qualifies for the ACCA mandatory minimum sentence
      enhancement.

      In Mathis, the Court resolved a circuit conflict regarding the meaning of
      the term “divisible.” Under Mathis, when “faced with an alternatively
      phrased statute [we must first] determine whether its listed items are
      elements or means.” 136 S. Ct. at 2256. “Elements” are “the things the
      prosecution must prove to sustain a conviction.” Id. at 2248 (quotation
      omitted). “Means” are “[h]ow a given defendant actually perpetrated the
      crime.” Id. at 2251. To distinguish between elements and means,
      federal sentencing courts should look at “authoritative sources of state
      law” such as “a state court decision [that] definitively answers the
      question,” or the statute’s text. If necessary, the court may “peek” at the
      record of the prior conviction, but only to determine if the statutory
      alternatives are elements or means. Id. at 2256-57 (quotation omitted).
      If the statute lists alternative elements, it is divisible, and therefore the
      prior conviction is subject to modified categorical analysis. Id.

Lamb, 847 F.3d at 931.

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      “The basic elements of the generic burglary offense are ‘unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to commit
a crime.’” United States v. Olsson, 742 F.3d 855, 856 (8th Cir. 2014), quoting
Taylor, 495 U.S. at 599. Phillips has two convictions for second-degree burglary
under Missouri Revised Statute 569.170,2 which provided at the time of his
convictions:

      A person commits the crime of burglary in the second degree when he
      knowingly enters unlawfully or knowingly remains unlawfully in a
      building or inhabitable structure for the purpose of committing a crime
      therein.

“Inhabitable structure” was defined to include:

      (2) [A] ship, trailer, sleeping car, airplane, or other vehicle or structure:

      (a) Where any person lives or carries on business or other calling; or

      (b) Where people assemble for purposes of business, government,
      education, religion, entertainment or public transportation; or

      (c) Which is used for overnight accommodation of persons. Any such
      vehicle or structure is “inhabitable” regardless of whether a person is
      actually present[.]

RSMo § 569.010.



      2
        The presentence investigation report lists two second-degree burglary
convictions, one in 1988 and one in 2007. For the 1988 conviction, the report lists
a violation of RSMo § 569.170, Missouri’s second-degree burglary statute. For the
2007 conviction, the report lists a violation of RSMo § 570.170, the Missouri bait
advertising statute—obviously a typographical error.
                                          -4-
      Before Mathis, this court held that “the basic elements of the Missouri
second-degree burglary statute are the same as those of the generic burglary offense,”
and, therefore, a conviction under Missouri’s second-degree burglary statute is a
violent felony under the categorical approach. Olsson, 742 F.3d at 856. After Mathis,
however, this court held:

      Under Missouri law, “[a] person commits the crime of burglary in the
      second degree when he knowingly enters unlawfully or knowingly
      remains unlawfully in a building or inhabitable structure for the purpose
      of committing a crime therein.” Mo. Rev. Stat. § 569.170.1. Initially,
      this crime appears to fit within the elements of generic burglary.
      However, Missouri law defines “inhabitable structure” to include “a
      ship, trailer, sleeping car, airplane, or other vehicle or structure.” Mo.
      Rev. Stat. § 569.010(2). The statute thus covers a broader range of
      conduct than generic burglary and therefore does not qualify
      categorically as a violent felony.

United States v. Bess, 655 Fed. Appx. 518, 519 (2016).

       Although a Missouri second-degree burglary conviction is not a violent felony
under the categorical approach, it “may qualify as [a] predicate offense[] under the
modified categorical approach” if “the relevant statute is divisible,” meaning the
“statute lists alternative elements and thus defines multiple separate crimes.” Id. at
519-20. In Sykes, this court held the Missouri second-degree burglary statute lists
“two alternative elements,” with burglary of “a building” describing “an element of
second-degree burglary rather than a means.” Sykes, 844 F.3d at 715 (“[T]he statute
contains at least two alternative elements: burglary ‘of a building’ and burglary of ‘an
inhabitable structure,’ separated in the text by the disjunctive ‘or.’”), citing Mathis,
136 S. Ct. at 2248. Courts may, therefore, apply the modified categorical approach
to determine whether a past conviction is a violent felony. Id. Applying this
approach, Sykes held, “Second-degree burglary of a building conforms to the elements
of a generic burglary promulgated in Taylor: (i) unlawful entry or remaining in (ii)


                                          -5-
a building or structure (iii) with the intent to commit a crime.” Id., citing Taylor, 495
U.S. at 598.

        In Sykes, it was undisputed the defendant burglarized “a building.” Under the
modified categorical approach then, the burglary was a violent felony. Here, the
record is unclear. The presentence investigation report lists two second-degree
burglary convictions. The 1988 conviction is described as burglary of a “residence.”
The 2007 conviction is described as burglary of “an inhabitable structure.” Neither
charging document is part of the record, and the government concedes neither
“expressly states that Phillips unlawfully entered a ‘building.’” Still, the government
argues that “the reference to a physical street address, together with the description of
it as inhabitable, clearly demonstrates, on the face of the charging document alone,
that Phillips was charged with unlawfully entering into a building.” The district court
did not make a finding on this issue.

      This court vacates the sentence and remands to the district court to determine
whether Phillips’ second-degree burglary convictions were “of a building,” and thus
violent felonies under the ACCA.

                                     *******

      The sentence is vacated, and the case remanded for resentencing.
                      ______________________________




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