                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-7304


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

CHARLES ALLEN HALL,

                     Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Martin K. Reidinger, District Judge. (3:09-cr-00019-MR-1; 3:13-cv-00592-
MR)


Submitted: March 31, 2017                                          Decided: April 7, 2017


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Ross Hall Richardson, Interim Defender, Joshua B. Carpenter, Appellate Chief, FEDERAL
PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF NORTH CAROLINA,
Asheville, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney,
Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Charles Allen Hall appeals the district court’s order denying relief on his 28 U.S.C.

§ 2255 (2012) motion. The court granted a certificate of appealability on one issue

presented in that motion: whether South Carolina third-degree burglary, S.C. Code Ann.

§ 16-11-313 (2015), and North Carolina aiding and abetting assault with a deadly weapon

on a police officer, N.C. Gen. Stat. § 14-34.2 (2015), were properly treated as violent

felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012) (ACCA). Under

the ACCA, a defendant who violates 18 U.S.C. § 922(g)(1) (2012) and has three or more

prior convictions of serious drug offenses or violent felonies is subject to a mandatory

minimum sentence of 15 years. 18 U.S.C. § 924(e)(1). We conclude that, because South

Carolina third-degree burglary sweeps more broadly than generic burglary, it cannot serve

as an ACCA predicate felony, and Hall accordingly was improperly sentenced as an armed

career criminal. We therefore vacate the decision of the district court and remand for

resentencing. *

                                             I

       Hall was convicted in 2009 of possession of a firearm by a convicted felon, 18

U.S.C. § 922(g)(1). He objected to his classification as an armed career criminal; however,

the district court overruled the objection and sentenced Hall to 188 months in prison. We




       *
      We do not address whether the North Carolina assault conviction qualifies as an
ACCA predicate.

                                             2
affirmed, rejecting Hall’s assertion that he did not have the requisite prior convictions for

ACCA status. United States v. Hall, 495 F. App’x 319, 326-28 (4th Cir. 2012).

       In his § 2255 motion, Hall alleged ineffective assistance of counsel and that he was

improperly sentenced as an armed career criminal. Specifically, he claimed that neither

the South Carolina third-degree burglary conviction nor the North Carolina assault

conviction was a violent felony under the ACCA. The district court denied the motion to

vacate. With respect to Hall’s ACCA claims, the court held that both convictions qualified

as violent felonies.

       This appeal followed. The only issue raised on appeal is whether Hall was properly

sentenced as an armed career criminal. The United States agrees that South Carolina

third-degree burglary is not a violent felony and that Hall is entitled to sentencing relief

under § 2255.

                                             II

       The ACCA defines a “violent felony” as 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. . . .

18 U.S.C. § 924(e)(2)(B). Subsection (e)(2)(B)(i), which is commonly referred to as the

“force clause,” applies only to crimes that involve “violent force—that is, force that is

capable of causing physical pain or injury to another person.” United States v. Gardner,

823 F.3d 793, 803 (4th Cir. 2016) (internal quotation marks omitted).            Subsection

(e)(2)(B)(ii) consists of both the “enumerated offense clause” and the “residual clause.”

                                             3
The latter clause is unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551,

2558 (2015). Johnson did not invalidate either the force clause or the enumerated offense

clause. Id. at 2563.

       To decide if a prior offense is an enumerated offense, courts generally use:

       the “categorical approach”: They compare the elements of the statute
       forming the basis of the defendant’s conviction with the elements of the
       “generic” crime—i.e., the offense as commonly understood. The prior
       conviction qualifies as an ACCA predicate only if the statute’s elements are
       the same as, or narrower than, those of the generic offense.

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). “The comparison of elements

that the categorical approach requires is straightforward when a statute sets out a single (or

‘indivisible’) set of elements to define a single crime.” Mathis v. United States, 136 S. Ct.

2243, 2248 (2016). If, however, a statue is “divisible,” meaning that it “list[s] elements in

the alternative, and thereby define[s] multiple crimes,” courts use the “modified categorical

approach.” Id. at 2249. “Under that approach, a sentencing court looks to a limited class

of documents . . . to determine what crime, with what elements, a defendant was convicted

of. . . . The court can then compare that crime . . . with the relevant generic offense.” Id.

       Our first task is to compare South Carolina third-degree burglary with the generic

definition of burglary. “A person is guilty of burglary in the third degree if the person

enters a building without consent and with intent to commit a crime therein.” S.C. Code

Ann. § 16-11-313 (2015).       “Building” is defined to include “any structure, vehicle,

watercraft, or aircraft.” S.C. Code Ann. § 16-11-310(1) (2015). Generic burglary is the

“unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to

commit a crime.” Descamps, 133 S. Ct. at 2283 (internal quotation marks omitted).

                                              4
       Mathis is dispositive in this case. In Mathis, the defendant was sentenced as an

armed career criminal based on prior Iowa convictions of burglary. Mathis v. United

States, 136 S. Ct. at 2250. The burglary statutes at issue in Mathis define burglary to

include unprivileged entry into an “occupied structure.” Iowa Code Ann. §§ 713.3, 713.5

(2015) (burglary in the first degree; burglary in the second degree, respectively). An

“occupied structure,” in turn, is defined to include “any building, structure, appurtances to

buildings and structures, land, water or air vehicle, or similar place. . . .” Iowa Code Ann.

§ 702.12 (2015).

       The Supreme Court observed that the locations listed in § 702.12 “are not alternative

elements, going toward the creation of separate crimes. To the contrary, they lay out

alternative ways of satisfying a single locational element.” Mathis, 136 S. Ct. at 2250.

The Iowa burglary statute therefore is not divisible because it “defines one crime, with one

set of elements, broader than generic burglary.” Id. Because “the elements of Mathis’s

crime of conviction (Iowa burglary) cover a greater swath of conduct than the elements of

the relevant ACCA offense (generic burglary), that . . . disparity resolve[d the] case.” Id.

at 2251. The Court held that Mathis’s burglary convictions could not serve as ACCA

predicates. Id.

       Under Mathis, Hall’s conviction of third-degree burglary cannot serve as a predicate

felony under the ACCA. As with the Iowa statute, the South Carolina statute covers

unlawful entry into not only buildings but also vehicles, watercraft, and aircraft. The South

Carolina statute, like the Iowa statute, is not divisible because these are not alternative

elements of the offense; instead, they are alternative means of satisfying the locational

                                             5
element of third-degree burglary. Application of the categorical approach compels the

conclusion that the South Carolina statute sweeps more broadly than generic burglary and

cannot serve as a predicate ACCA felony.

                                            III

       We hold that Hall did not have the requisite three prior felonies to qualify as an

armed career criminal. Accordingly, we vacate the district court’s order and remand for

resentencing. The motion to expedite is denied as moot. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                            VACATED AND REMANDED




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