                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SHAHID MILLKELLER MUTEE,                 No. 17-15415
        Petitioner-Appellant,
                                         D.C. Nos.
             v.                     2:16-cv-01583-SRB
                                   2:95-cr-00150-SRB-1
UNITED STATES OF AMERICA,
        Respondent-Appellee.              OPINION



      Appeal from the United States District Court
               for the District of Arizona
       Susan R. Bolton, District Judge, Presiding

        Argued and Submitted March 26, 2019
             San Francisco, California

                   Filed April 4, 2019

  Before: J. Clifford Wallace, Johnnie B. Rawlinson,
         and Paul J. Watford, Circuit Judges.

                   Per Curiam Opinion
2                  MUTEE V. UNITED STATES

                          SUMMARY *


                        28 U.S.C. § 2255

   Affirming a sentence, the panel held that, in light of
United States v. Stitt, 139 S. Ct. 399 (2018), a conviction
under North Carolina’s breaking-or-entering statute, N.C.
Gen. Stat. § 14-54, qualifies as a predicate felony under the
Armed Career Criminal Act.

     The panel wrote that Stitt, which held that generic
burglary includes burglary of mobile structures customarily
used or adapted for overnight accommodation, forecloses the
defendant’s argument that North Carolina’s definition of
“building” must be overbroad merely because it has been
interpreted to encompass mobile homes. The panel wrote
that to the extent this court’s decision in United States v.
Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), supported the
defendant’s position, that precedent has been abrogated by
Stitt. The panel wrote that United States v. Terrell, 593 F.3d
1084 (9th Cir. 2010), which interpreted Grisel to hold that
generic burglary requires burglary of an “unmovable
structure,” is clearly irreconcilable with Stitt, and is therefore
overruled.

    The panel rejected the defendant’s contention that North
Carolina’s definition of “building” sweeps too broadly for
generic burglary even after Stitt. The panel explained that
while the structures in the North Carolina cases on which the
defendant relies were “movable” in that they were capable

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

of mobility under different circumstances, they were
expressly not “nonpermanent or mobile,” and so fall outside
the range of structures that Stitt indicates must be “adapted
or used for overnight accommodation.”              The panel
concluded that the defendant therefore failed to demonstrate
a realistic probability that North Carolina would apply § 14-
54 to conduct outside the scope of generic burglary.


                        COUNSEL

Keith J. Hilzendeger (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Petitioner-Appellant.

Alexander Westbrook Samuels (argued) and Karla Hotis
Delord, Assistant United States Attorneys; Krissa M.
Lanham, Deputy Appellate Chief; Elizabeth A. Strange,
First Assistant United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Respondent-
Appellee.
4                 MUTEE V. UNITED STATES

                          OPINION

PER CURIAM:

    We must decide in this case whether a conviction under
North Carolina’s breaking-or-entering statute, N.C. Gen.
Stat. § 14-54, qualifies as a predicate felony under the
Armed Career Criminal Act (ACCA). We hold that it does.

                               I

    In 1996, Shahid Mutee was convicted of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The government sought an enhanced sentence under the
ACCA, which provides for a mandatory minimum sentence
of 15 years’ imprisonment for those who violate 18 U.S.C.
§ 922(g) and have three prior convictions for certain violent
felonies or serious drug offenses. 18 U.S.C. § 924(e)(1).
The district court found that Mutee had five prior
convictions that qualified as predicate felonies under the
ACCA, and sentenced him to 264 months in federal prison.

    Following the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2015), Mutee filed a motion
in the district court to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. The district court
held that, in light of Johnson, two of the five prior
convictions no longer qualified as predicate felonies under
the ACCA. But because the court found that Mutee still had
three prior convictions that did qualify, it denied his motion.
One of the three remaining predicate felonies is Mutee’s
conviction under North Carolina’s breaking-or-entering
statute, N.C. Gen. Stat. § 14-54. The district court held that
this conviction still qualifies as a predicate felony conviction
for “burglary” under the ACCA.                  See 18 U.S.C.
§ 924(e)(2)(B)(ii).
                 MUTEE V. UNITED STATES                      5

    On appeal, Mutee contends that his breaking-or-entering
conviction should not qualify as a predicate felony under the
ACCA because N.C. Gen. Stat. § 14-54 criminalizes
conduct that falls outside the scope of generic burglary as
defined for ACCA purposes. After the initial round of
briefing was complete, the Supreme Court decided United
States v. Stitt, 139 S. Ct. 399 (2018), which addresses a
relevant question about the scope of generic burglary. We
ordered the parties to file supplemental briefs on the impact
of that decision on this case. We now hold, in light of Stitt,
that a conviction under N.C. Gen. Stat. § 14-54 does qualify
as a predicate felony under the ACCA. We also address the
impact of Stitt on our precedent regarding the scope of
generic burglary.

                              II

    As mentioned above, the ACCA mandates enhanced
sentences for individuals who violate 18 U.S.C. § 922(g) and
have three prior convictions “for a violent felony or a serious
drug offense.” 18 U.S.C. § 924(e)(1). As relevant to this
appeal, the ACCA defines “violent felony” to include “any
crime punishable by imprisonment for a term exceeding one
year . . . [that] is burglary.” 18 U.S.C. § 924(e)(2)(B)(ii).

    In Taylor v. United States, 495 U.S. 575, 602 (1990), the
Supreme Court held that “an offense constitutes ‘burglary’
for purposes of a § 924(e) sentence enhancement if . . . its
statutory definition substantially corresponds to ‘generic’
burglary.” The Court defined generic burglary as a crime
“having the basic elements of unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to
commit a crime.” Id. at 599.

    North Carolina’s breaking-or-entering statute provides
that “[a]ny person who breaks or enters any building with
6                MUTEE V. UNITED STATES

intent to commit any felony or larceny therein shall be
punished as a Class H felon.” N.C. Gen. Stat. § 14-54(a).
The statute further provides that, “[a]s used in this section,
‘building’ shall be construed to include any dwelling,
dwelling house, uninhabited house, building under
construction, building within the curtilage of a dwelling
house, and any other structure designed to house or secure
within it any activity or property.” N.C. Gen. Stat.
§ 14-54(c).

    Mutee argues that North Carolina’s definition of
“building” renders its breaking-or-entering statute overbroad
for ACCA purposes. Specifically, he argues that the
definition of “building” in § 14-54(c) sweeps more broadly
than the term “building or structure” in Taylor’s definition
of generic burglary. See Taylor, 495 U.S. at 599.

    Before the Supreme Court’s decision in Stitt, Mutee
attempted to demonstrate the overbreadth of North
Carolina’s breaking-or-entering statute by relying on a case
in which the statute was interpreted to cover the burglary of
a mobile home. See State v. Douglas, 277 S.E.2d 467, 470
(N.C. Ct. App. 1981), aff’d, 285 S.E.2d 802, 803–04 (N.C.
1982). Mutee argued that movable or unfixed structures,
like the mobile home, categorically fall outside the scope of
generic burglary’s “building or structure” element. He relied
for that proposition on United States v. Grisel, 488 F.3d 844,
848 (9th Cir. 2007) (en banc), in which we held that generic
burglary requires entry of “a structure designed for
occupancy that is intended for use in one place.”

    Mutee’s argument is no longer viable in the wake of Stitt.
In Stitt, the Court held that generic burglary includes
burglary of mobile structures customarily used or adapted
for overnight accommodation. Stitt, 139 S. Ct. at 403–04.
The Court determined that Tennessee’s burglary statute—
                 MUTEE V. UNITED STATES                     7

which specifically refers to “mobile homes”—falls within
the scope of generic burglary. Id. at 404; see also Tenn.
Code Ann. §§ 39-14-403(a), -401(1)(A). That holding
forecloses Mutee’s argument that North Carolina’s
definition of “building” must be overbroad merely because
it has been interpreted to encompass mobile homes.

     To the extent that our court’s en banc decision in Grisel
supported Mutee’s position, that precedent has been
abrogated by Stitt. We held in Grisel that a “building or
structure” for purposes of generic burglary must be
“intended for use in one place.” Grisel, 488 F.3d at 848. We
subsequently interpreted Grisel to hold that generic burglary
requires burglary of an “unmovable structure.” United
States v. Terrell, 593 F.3d 1084, 1093 (9th Cir. 2010). That
aspect of our prior circuit law is clearly irreconcilable with
Stitt, and is therefore overruled.

                             III

     In his supplemental brief, Mutee argues that North
Carolina’s definition of “building” sweeps too broadly for
generic burglary even after Stitt. Mutee contends that North
Carolina’s definition of “building” is overbroad because it
encompasses what he calls “movable structures” that are not
intended for overnight accommodation. He points to cases
in which the State’s breaking-or-entering statute has been
interpreted to cover burglary of certain mobile homes and
trailers. See Douglas, 277 S.E.2d at 468, 470 (mobile home
on display at a dealership); State v. Bost, 286 S.E.2d 632,
634 (N.C. Ct. App. 1982) (“blocked up” trailer used for
storage of equipment at a construction site).

    The problem with Mutee’s argument is that he equates
truly mobile structures with those that are merely “movable”
under particular circumstances.         Although it figures
8                   MUTEE V. UNITED STATES

prominently in Mutee’s argument, the word “movable” does
not appear in the Court’s opinion in Stitt. The question
presented in Stitt was “whether burglary of a nonpermanent
or mobile structure that is adapted or used for overnight
accommodation can qualify as ‘burglary’ under the Armed
Career Criminal Act.” Stitt, 139 S. Ct. at 404 (alteration
omitted; emphasis added). Significantly, the structures at
issue in the cases on which Mutee relies were covered by
§ 14-54’s definition of “building” precisely because they
were permanent and immobile. See State v. Douglas,
282 S.E.2d 832, 834 (N.C. Ct. App. 1981) (adopting the
holding of Douglas, 277 S.E.2d 467, and explaining that
§ 14-54 covers mobile homes that are characterized by “the
qualities of permanence and immobility”); Bost, 286 S.E.2d
at 635 (“[Trailers] may qualify as ‘buildings’ [under
§ 14-54] if under the circumstances of their use and location
at the time in question they have lost their character of
mobility and have attained a character of permanence.”).

     In fact, North Carolina courts have made clear that
burglary of truly mobile structures is covered not by § 14-54,
but by § 14-56, which covers breaking or entering “any
railroad car, motor vehicle, trailer, aircraft, boat, or other
watercraft of any kind.” N.C. Gen. Stat. § 14-56; see
Douglas, 282 S.E.2d at 834 (“The items listed in G.S. 14-54
denote the qualities of permanence and immobility while
those listed in G.S. 14-56 are characterized by a high degree
of mobility.”); Bost, 286 S.E.2d at 634–35 (“Whether other
‘trailers,’ or ‘railroad cars’ or other items specifically named
in G.S. 14-56 qualify as ‘buildings’ under G.S. 14-54
depends upon the circumstances in each case.”). 1


    1
      Mutee argues that § 14-54’s definition of “building” is overbroad
for the same reason as the Missouri and Iowa definitions that the
                    MUTEE V. UNITED STATES                            9

    In sum, while the structures at issue in the cases on which
Mutee relies were “movable” in that they were capable of
mobility under different circumstances, they were expressly
not “nonpermanent or mobile,” and so fall outside the range
of structures that Stitt indicates must be “adapted or used for
overnight accommodation.” Stitt, 139 S. Ct. at 404. Thus,
Mutee has failed to point to a case in which § 14-54 has been
interpreted to cover burglary of a structure that Stitt indicates
would not satisfy generic burglary’s “building or structure”
element.

                          *        *        *

    Because Mutee fails to demonstrate a “realistic
probability” that North Carolina would apply § 14-54 to
conduct outside the scope of generic burglary, see Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), we hold that
his conviction under that statute qualifies as a predicate
felony under the ACCA.

    AFFIRMED.




Supreme Court recognized as overbroad in Stitt. See Stitt, 139 S. Ct. at
407. He is mistaken. The Missouri and Iowa definitions encompassed
“ordinary boats and vessels often at sea (and railroad cars often filled
with cargo, not people)” and “ordinary vehicles,” respectively. Id. In
North Carolina, each of those structures—absent particular
circumstances rendering them permanent and immobile—would
expressly qualify under § 14-56, not § 14-54.
