                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1233
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Jason Daniel Sims

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: March 10, 2017
                               Filed: April 27, 2017
                                  ____________

Before RILEY, Chief Judge,1 GRUENDER, Circuit Judge, and SCHREIER,2
District Judge.
                              ____________

GRUENDER, Circuit Judge.


      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.
      2
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, sitting by designation.
       Jason Daniel Sims pleaded guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). He received an enhanced sentence pursuant to
the Armed Career Criminal Act (“ACCA”), which applies to those felons guilty of
possessing a firearm who also have at least three prior convictions for a violent felony
or serious drug offense. See 18 U.S.C. § 924(e). On appeal, Sims contends that the
district court erred in finding that his two prior Arkansas residential burglary
convictions qualify as violent felonies because the Arkansas residential burglary
offense is categorically broader than generic burglary. We agree and therefore vacate
Sims’s sentence and remand for resentencing.

       The ACCA imposes a fifteen-year mandatory minimum sentence for anyone
convicted of unlawfully possessing a firearm who has three or more prior convictions
for serious drug offenses or violent felonies. 18 U.S.C. § 924(e)(1). “Burglary” is
one of the offenses specifically enumerated as a violent felony under the ACCA. See
id. § 924(e)(2)(B)(ii). In the ACCA context, the Supreme Court has defined burglary
in its “generic” usage as “unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.” See Taylor v. United States,
495 U.S. 575, 598-99 (1990).

       Sims’s Pre-Sentence Investigation Report (PSR) indicated that he had several
prior felony offenses, including two convictions for serious drug offenses and two
Arkansas convictions for residential burglary. The PSR stated that all four
convictions qualified as ACCA predicate offenses and thus determined that Sims was
subject to a minimum sentence of fifteen years as well as an advisory sentencing
guideline enhancement based on his status as an armed career criminal. See U.S.S.G.
§ 4B1.4. Sims conceded that his two convictions for serious drug offenses
constituted ACCA predicate offenses but argued that his Arkansas residential
burglary convictions did not. He asserted that the Arkansas residential burglary
statute was over-inclusive and criminalized conduct that fell outside the generic
definition of burglary. See Taylor, 495 U.S. at 599.

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      The district court disagreed with Sims and found his Arkansas residential
burglary convictions were ACCA predicate offenses. As a result, Sims’s advisory
sentencing guidelines range was 188 to 235 months’ imprisonment, and the district
court imposed a 210-month sentence. On appeal, Sims renews his argument that
Arkansas residential burglary is broader than generic burglary and that his
convictions do not qualify as ACCA predicate offenses.

       Under Arkansas law, “[a] person commits residential burglary if he or she
enters or remains unlawfully in a residential occupiable structure of another person
with the purpose of committing in the residential occupiable structure any offense
punishable by imprisonment.” Ark. Code Ann. § 5-39-201(a)(1). A “‘[r]esidential
occupiable structure’ means a vehicle, building, or other structure: (i) [i]n which any
person lives; or (ii) [t]hat is customarily used for overnight accommodation of a
person whether or not a person is actually present.” Id. § 5-39-101(4)(A). The
Government concedes that the Arkansas residential burglary statute’s listed items are
separate means of satisfying a single locational element. See Mathis v. United States,
136 S. Ct. 2243, 2248-49 (2016) (“‘Elements’ are the constituent parts of a crime’s
legal definition—the things the prosecution must prove to sustain a conviction. . . .
[M]eans . . . spell[] out various factual ways of committing some component of the
offense . . . .” (citations and quotations omitted)). Thus, “we apply the ‘categorical
approach,’ under which we ‘look only to the fact of conviction and the statutory
definition of the prior offense.’” United States v. Tucker, 740 F.3d 1177, 1179 (8th
Cir. 2014) (en banc) (quoting Taylor, 495 U.S. at 602). In short, Sims’s Arkansas
residential burglary convictions will qualify as generic burglaries—and thus serve as
ACCA predicates—“only if the statute’s elements are the same as, or narrower than,
those of the generic offense.” See Descamps v. United States, 133 S. Ct. 2276, 2281
(2013). We review the question of whether a prior conviction qualifies as an ACCA
predicate de novo. United States v. Thornton, 766 F.3d 875, 878 (8th Cir. 2014).




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       Sims’s central contention is that generic burglary’s “building or structure”
element does not encompass vehicles, and thus, the Arkansas residential burglary
statute sweeps more broadly than generic burglary. The Supreme Court has clearly
stated that “[t]he [ACCA] makes burglary a violent felony only if committed in a
building or enclosed space (‘generic burglary’), not in a boat or motor vehicle.”
Shepard v. United States, 544 U.S. 13, 15-16 (2005) (emphasis added). In Mathis v.
United States, the Court considered an Iowa burglary statute that all parties agreed
criminalized more conduct than generic burglary. 136 S. Ct. at 2250. The Iowa
statute made it a crime to burgle “any building, structure, appurtenances to buildings
and structures, land, water or air vehicle, or similar place adapted for overnight
accommodation of persons, or occupied by persons for the purpose of carrying on
business or other activity therein, or for the storage or safekeeping of anything of
value.” See Iowa Code Ann. § 702.12; Mathis, 136 S. Ct. at 2250. The Supreme
Court agreed that the Iowa burglary statute was over-inclusive for the simple reason
that the burglary statute “reache[d] . . . land, water, or air vehicle[s].” Mathis, 136
S. Ct. at 2250 (emphasis in original). Thus, the Court determined that convictions
under the Iowa burglary statute could not serve as ACCA predicate offenses. Id. at
2257.

       The Government responds that while the burglary of vehicles does not
constitute generic burglary, the Arkansas residential burglary statute applies only to
vehicles “[i]n which any person lives” or “[t]hat [are] customarily used for overnight
accommodation,” see Ark. Code Ann. § 5-39-101(4)(A), and therefore, Arkansas
residential burglary criminalizes conduct that is “the same as, or narrower than . . . the
generic offense,” see Descamps, 133 S. Ct. at 2281. The Government’s argument is
not an unreasonable one as this issue has divided circuit courts. Compare United
States v. Spring, 80 F.3d 1450, 1461-62 (10th Cir. 1996) (holding burglary of
vehicles “adapted for the overnight accommodation of persons” constitutes generic
burglary) (cited approvingly in United States v. Patterson, 561 F.3d 1170, 1173 (10th
Cir. 2009), with United States v. White, 836 F.3d 437, 444-46 (4th Cir. 2016)

                                           -4-
(concluding a statute criminalizing burglary of “vehicle[s] primarily designed for
human habitation and occupancy” sweeps more broadly than generic burglary), and
United States v. Grisel, 488 F.3d 844, 850-51 (9th Cir. 2007) (en banc) (ruling that
burglary of “any booth, vehicle, boat, aircraft, or other structure adapted for overnight
accommodation of persons or for carrying on business therein” falls outside generic
burglary). We are not, however, writing on a blank slate, as our decision in United
States v. Lamb, 847 F.3d 928 (8th Cir. 2017), forecloses the Government’s argument.

         In Lamb, we analyzed a Wisconsin statute that criminalized, among other
things, the burglary of “[a] motor home or other motorized type of home or a trailer
home, whether or not any person is living in such home.” Lamb, 847 F.3d at 931.
We concluded “[w]ithout question, [the statute], viewed as a whole, encompasses a
broader range of conduct than generic burglary as defined in Taylor, such as burglary
of . . . motor homes.” Id. Wisconsin’s statute criminalizing the burglary of a “motor
home” is equivalent to Arkansas’s residential burglary statute, which criminalizes the
burglary of vehicles where people live or that are customarily used for overnight
accommodations. See White, 836 F.3d at 445-46; see also Grisel, 488 F.3d at 851
n.5. And just as it was inconsequential that Wisconsin’s statute limited burglary to
motor homes, it is inconsequential that Arkansas’s statute confines residential
burglary to vehicles “[i]n which any person lives” or “[t]hat [are] customarily used
for overnight accommodation.” Ark. Code Ann. § 5-39-101(4)(A); see also United
States v. Forrest, 611 F.3d 908, 913 (8th Cir. 2010) (finding a Colorado burglary
statute was categorically broader than generic burglary because it covered vehicles
adapted for overnight accommodations). We therefore conclude that Arkansas
residential burglary categorically sweeps more broadly than generic burglary.

      Accordingly, Sims’s Arkansas residential burglary convictions do not qualify
as ACCA predicate offenses. We thus vacate Sims’s sentence and remand for
resentencing.
                     ______________________________

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