            Case: 13-13674   Date Filed: 06/23/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13674
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:12-cr-00223-SCJ-JSA-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JEMARIO HARRIS,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (June 24, 2014)

Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:
              Case: 13-13674     Date Filed: 06/23/2014    Page: 2 of 6


      Jemario Harris was sentenced to 41 months imprisonment after pleading

guilty to one count of dealing firearms without a license, in violation of 18 U.S.C.

§ 922(a), and two counts of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g). The sole issue raised in this appeal is whether the district

court erred in calculating Harris’ guidelines sentence when it concluded that his

2011 burglary conviction qualified as a prior felony conviction for a crime of

violence.

                                          I.

      In determining Harris’ guidelines sentence, the district court applied United

States Sentencing Guideline § 2K2.1(a)(4)(A), which assigns defendants a base

offense level of 20 if they are convicted under 18 U.S.C § 922(a)–(g) and have a

prior felony conviction for a crime of violence. The guidelines define “crime of

violence” under § 2K2.1(a)(4) as any offense punishable by a prison term of more

than one year that either (1) has as an element the use, attempted use, or threatened

use of physical force against another person, or (2) presents a serious potential risk

of physical injury to another, such as “burglary of a dwelling, arson, or extortion.”

U.S.S.G. § 4B1.2(a) (Nov. 2012) (emphasis added). Over Harris’ objection, the

district court concluded that he had a prior felony conviction for a crime of

violence based on his 2011 conviction for burglary in Georgia, and it therefore

assigned him a base offense level of 20 according to § 2K2.1(a)(4)(A).


                                          2
              Case: 13-13674     Date Filed: 06/23/2014   Page: 3 of 6




                                         II.

      Recognizing that § 4B1.2(a) lists “burglary of a dwelling” as the type of

burglary that qualifies as a crime of violence, Harris argues that his 2011

conviction was not for a crime of violence because he was not convicted of

burglarizing a dwelling. He contends that he was instead convicted of burglarizing

a “structure designed for use as the dwelling of another,” and his conviction cannot

qualify as a crime of violence under the guidelines because the category “structure

designed for use as the dwelling of another” includes buildings that are not actual

dwellings. His argument is one which we review de novo. United States v.

Chitwood, 676 F.3d 971, 975 (11th Cir. 2012).

      In 2011 the Georgia burglary statute provided:

      A person commits the offense of burglary when, without authority and
      with the intent to commit a felony or theft therein, he enters or
      remains within the dwelling house of another or any building, vehicle,
      railroad car, watercraft, or other such structure designed for use as the
      dwelling of another or enters or remains within any other building,
      railroad car, aircraft, or any room or any part thereof.




                                          3
                 Case: 13-13674        Date Filed: 06/23/2014        Page: 4 of 6


Ga. Code Ann. § 16-7-1(a) (current version at Ga. Code Ann. § 16-7-1(b)). Harris

and the government agree that § 16-7-1(a) is a divisible statute,1 and they also

agree that the Shepard 2 documents related to the 2011 conviction show that Harris

was convicted under the portion of § 16-7-1(a) that makes it a crime to unlawfully

enter a “structure designed for use as the dwelling of another” with the intent to

commit a crime inside. Therefore the only issue for us to decide is whether

burglary of a “structure designed for use as the dwelling of another” categorically

qualifies as “burglary of a dwelling” within the meaning of U.S.S.G. § 4B1.2(a).

See United States v. Archer, 531 F.3d 1347, 1350 (11th Cir. 2008) (noting that “we

consider the offense [categorically] as defined by the law, rather than considering

the facts of the specific violation,” when determining whether a prior conviction

qualifies as a crime of violence).

       Four of our sister circuits have already defined “dwelling” within the

meaning of U.S.S.G. § 4B1.2(a). Relying on Black’s Law Dictionary, all four


       1
          See Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2283 (2013) (noting that a
statute is divisible when it lists potential offense elements in the alternative and “renders opaque
which element played a part in the defendant’s conviction”).
       2
          Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 1257 (2005) (holding that a
sentencing court may examine only certain documents in determining whether a prior conviction
was for generic burglary within the meaning of the Armed Career Criminal Act); see also United
States v. Palomino Garcia, 606 F.3d 1317, 1328 (11th Cir. 2010) (noting that Shepard may apply
when determining whether a prior offense qualifies a defendant for an enhancement under the
sentencing guidelines).




                                                  4
              Case: 13-13674     Date Filed: 06/23/2014    Page: 5 of 6


have agreed that a “dwelling” under § 4B1.2(a) is an “enclosed space which is used

or intended for use as a human habitation.” United States v. McClenton, 53 F.3d

584, 587 (3d Cir. 1995) (emphasis omitted) (quoting Black’s Law Dictionary 505

(6th ed. 1990)); accord United States v. Ramirez, 708 F.3d 295, 303 (1st Cir.

2013); United States v. Rivera-Oros, 590 F.3d 1123, 1132 (10th Cir. 2009); United

States v. Graham, 982 F.2d 315, 316 (8th Cir. 1992). We follow those other

circuits and apply the same definition of a dwelling for purposes of § 4B1.2(a).

      In resolving the question presented here, we find it instructive that the

definition mentions both “use” and “intended use.” By including both of those

terms, the definition of a “dwelling” includes not only structures that are presently

“used” for human habitation, but also structures that are simply “intended for use

as a human habitation.” See McClenton, 53 F.3d at 587. We see no meaningful

distinction between a structure that is “intended” for use as a human habitation and

one that is, in the words of Georgia’s burglary statute, “designed” for use as a

human habitation. See Random House Webster’s Unabridged Dictionary 539 (2d

ed. 2001) (defining “design” in part as “to intend for a definite purpose”);

Webster’s New World Dictionary 373 (3d college ed. 1991) (defining “design” in

part as “to plan to do; purpose; intend”).




                                             5
              Case: 13-13674     Date Filed: 06/23/2014   Page: 6 of 6


      Harris’ 2011 burglary conviction was for “burglary of a dwelling” within the

meaning of § 4B1.2(a), and the district court did not err in concluding that he had a

prior conviction for a crime of violence.

      AFFIRMED.




                                            6
