                Case: 12-14296       Date Filed: 12/17/2013       Page: 1 of 15


                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-14296
                               ________________________

                       D.C. Docket No. 2:12-cr-00089-IPJ-TMP-1



UNITED STATES OF AMERICA,

                                                                          Plaintiff - Appellee,

                                            versus

KENNETH EARL BOGGAN,

                                                                      Defendant - Appellant.

                               ________________________

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

                                    (December 17, 2013)

Before HULL and HILL, Circuit Judges, and PANNELL, * District Judge.

PANNELL, District Judge:




*
 Honorable Charles A. Pannell, Jr., Senior United States District Judge for the Northern District
of Georgia, sitting by designation.
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      After pleading guilty to one count of being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1), Kenneth Boggan was sentenced to 180

months of imprisonment. He appeals the district court’s designation of his prior

conviction for third-degree burglary in Alabama as a violent felony under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). The court affirms.

                                    I. Background

      On March 13, 2010, Kenneth Boggan was driving with his brother when a

Birmingham, Alabama police officer stopped him for a traffic violation. The

officer found an SKS assault rifle and a Smith & Wesson .357 caliber revolver in

the car, along with a Kel-Tec .32 caliber pistol in Boggan’s back pocket. On

February 29, 2012, Boggan was indicted as a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). He entered a blind guilty plea on May 1, 2012.

      The pre-sentence report (“PSR”) submitted to the district court revealed that

Boggan had several prior Alabama convictions punishable by a term of

imprisonment exceeding one year. The ACCA imposes a mandatory minimum

sentence of fifteen years of imprisonment for a person “who has three previous . . .

convictions for a violent felony or serious drug offense, or both, on occasions

different from one another.” 18 U.S.C. § 924(e)(1). According to the PSR, Boggan

had four convictions that could independently be labeled as violent felonies: (1) a

1981 conviction for third-degree burglary, (2) a 1985 conviction for first-degree


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robbery, (3) a 1985 conviction for kidnapping, and (4) a 1985 conviction for rape.

Boggan’s kidnapping and rape convictions, however, arose out of the same

criminal episode, so only one could be counted towards the three violent felonies

required to trigger a fifteen-year mandatory minimum sentence under 18 U.S.C.

§ 924(e)(1). Nevertheless, with his 1985 robbery and 1981 burglary convictions,

the PSR concluded that Boggan still had three prior violent felonies.

       Boggan objected to the PSR’s treatment of his prior offenses, including the

1981 third-degree burglary offense, as violent felonies. The district court overruled

his objections and sentenced Boggan to the mandatory minimum sentence of

fifteen years imprisonment. Boggan now appeals the district court’s determination

that his third-degree burglary offense was a violent felony that triggered a statutory

enhancement of his sentence.

                                    II. Standard of Review

       This court reviews “de novo whether a particular conviction is a ‘violent

felony’ for purposes of the ACCA.” United States v. Matthews, 466 F.3d 1271,

1273 (11th Cir. 2006).

                                       III. Discussion

       The issue on appeal is whether a conviction for violation of Alabama’s third-

degree burglary statute, Ala. Code § 13A-7-7 (1979), 1 constitutes a “violent

1
 At oral argument, the parties confirmed that this is the version of the Alabama Code applicable
to Boggan’s 1981burglary conviction.
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felony” for purposes of statutory sentencing enhancements under the ACCA, 18

U.S.C. § 924(e)(1), and for purposes the United States Sentencing Guidelines

(“USSG”) § 4B1.4.

A.    The ACCA

      The ACCA defines a violent felony as:

      any crime punishable by imprisonment for a term exceeding one year,
      or any act of juvenile delinquency involving the use or carrying of a
      firearm, knife, or destructive device that would be punishable by
      imprisonment for such term if committed by an adult, 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). The final clause of § 924(e)(2)(B)(ii)––crimes that

otherwise involve conduct that presents a serious potential risk of physical injury

to another––is known as the “residual clause.”

B.    The District Court’s Ruling

      At Boggan’s sentencing hearing, the district court held that his burglary

offense was a violent felony because it was covered under the residual clause of

the violent-felony definition in § 924(e)(2)(B)(ii). The residual clause applies to

offenses “involv[ing] conduct that presents a serious potential risk of physical

injury to another.”




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C.    Boggan’s Argument on Appeal

      On appeal, Boggan concedes that two of his three prior convictions (the

1985 robbery and the combined 1985 kidnapping and rape) qualify as violent

felonies under the ACCA, although he did contest this in the district court. His

argument on appeal is that his first conviction in 1981 for third-degree burglary in

Alabama does not qualify as a violent felony and, therefore, the district court erred

in deciding that he qualified for an enhanced sentence under the ACCA.

Specifically, he argues that his 1981 conviction does not qualify as a violent felony

because Alabama’s third-degree burglary crime is a non-generic version of

common-law burglary.

      1. The enumerated crime of burglary in 18 U.S.C. § 924(e)(2)(ii)

      The United States Supreme Court has defined the type of burglary

conviction that qualifies for the enumerated crime of burglary in § 924(e)(2)(ii).

“In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990), the Supreme

Court held that ‘a person has been convicted of burglary for purposes of a § 924(e)

enhancement if he is convicted of any crime, regardless of its exact definition or

label, having the basic elements of unlawful or unprivileged entry into, or

remaining in, a building or structure, with intent to commit a crime.’” United

States v. Rainer, 616 F.3d 1212, 1213–14 (11th Cir. 2010) (quoting Taylor, 495

U.S. at 599, 110 S.Ct. at 2158). “Regardless of its state law label, a burglary that


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includes those elements is a ‘generic burglary’ and qualifies as a ‘violent felony’

for ACCA purposes.” Id. “Burglaries that do not include all of the elements

essential to generic burglary are non-generic.” Id. at 1214. Nevertheless, “[a]

conviction under a non-generic burglary statute still counts as ‘burglary’ under the

ACCA if the defendant was actually found guilty of the elements of a generic

burglary.” Id. at 1215. Therefore, if Boggan was found guilty in 1981 of

committing the elements of generic burglary, his conviction could still qualify for

an ACCA enhancement for the enumerated crime of burglary.

      2. Boggan’s application of the ACCA to his 1981 third-degree burglary

          conviction

      Alabama’s third-degree burglary statute included the following definition of

“building” at the time Boggan was convicted:

      [A]ny structure which may be entered and utilized by persons for
      business, public use, lodging or the storage of goods, and includes any
      vehicle, aircraft or watercraft used for the lodging of persons or
      carrying on business therein. Where a building consists of two or
      more units separately occupied or secured, each shall be deemed both
      a separate building and a part of the main building.

Ala. Code § 13A-7-1(2) (1979).

      Boggan argues that Alabama’s third-degree burglary statute is non-generic

because it includes vehicles, aircraft, or watercraft used for the lodging of persons

or transaction of business within its definition of “building.” This court reached the

same conclusion in Rainer, holding, “Alabama’s third-degree burglary statute is a
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non-generic burglary statute because it covers some vehicles, aircraft, and

watercraft, which are places or property falling outside the scope of generic

burglary.” Rainer, 616 F.3d at 1215.

      Yet, as this court also held in Rainer, “[t]he finding that Alabama’s third-

degree burglary statute is a non-generic burglary statute does not end our inquiry.

A conviction under a non-generic burglary statute still counts as ‘burglary’ under

the ACCA if the defendant was actually found guilty of the elements of a generic

burglary.” Id. To that end, “enquiry under the ACCA to determine whether a plea

of guilty to burglary defined by a nongeneric statute necessarily admitted elements

of the generic offense is limited to the terms of the charging document, the terms

of a plea agreement or transcript of colloquy between judge and defendant in

which the factual basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information.” Shepard v. United States, 544 U.S.

13, 26, 125 S.Ct. 1254, 1263 (2005). These pieces of evidence are collectively

known as “Shepard” documents.

      Here, Boggan argues that the record from the district court does not

sufficiently show that the district court made a finding of fact from Shepard

documents that Boggan was convicted of burglarizing a “building or structure” in

1981, a required element for generic burglary. At Boggan’s sentencing hearing, the

district judge read a portion of the 1981 indictment, which stated, “[Boggan] did


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knowingly enter or remain unlawfully in a building of Cecil McClure with the

intent to commit a crime therein, to wit, theft.” Relying on this court’s analysis of

Alabama’s third-degree burglary statute in Rainer, Boggan argues that it would be

mere speculation to determine that this “building” was an actual building instead of

a vehicle, aircraft, or watercraft.

      In Rainer, this court had to determine whether statements in the indictments

and judgments from 1980 and 1982 convictions established that the defendant had

burglarized a “building or structure.” Rainer, 616 F.3d at 1216. The statements at

issue in Rainer were (1) “[the defendant] did knowingly enter or remain unlawfully

in a building of Richie’s Shoe Store, Inc., a corporation, with intent to commit a

crime therein, to wit: theft of property” and (2) “[the defendant] did knowingly

enter or remain unlawfully in a building of, to wit: Whiddon’s Gulf Service

Station, owned by Wilson M. Whiddon, with intent to commit a crime therein, to

wit: theft of property.” Id.

      The defendant in Rainer argued that these statements could have been

referring to vehicles instead of buildings because the definition of “building” in the

Alabama statute includes “vehicles.” Because the statute also requires that a

qualifying “vehicle” be “used for lodging of persons or carrying on business

therein,” the court determined that a gasoline service station business could not

plausibly be run out of a vehicle and the possibility of a shoe store run out of a


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vehicle was too far-fetched to undermine the court’s “conviction that Rainer’s two

previous convictions were for burglary of a building in the generic burglary sense

of the word.” Id.

      Boggan contrasts the statement read at his own sentencing with those in

Rainer to argue that the government did not meet its burden to prove what exactly

he was convicted of burglarizing in 1981. The statement the district court read

from the 1981 indictment was “a building of Cecil McClure.” According to

Boggan, because this statement does not include the level of detail in the

statements in Rainer (i.e., “building of Richie’s Shoe Store, Inc.” and “Whiddon’s

Gulf Service Station”), this court cannot reach the same common-sense conclusion

here that it did in Rainer. We need not, however, resolve this issue of the

sufficiency of the Shepherd documents because Boggan’s burglary conviction

qualifies, in any event, as a violent felony under the residual clause as explained

below.

D.    The Residual Clause of the ACCA

      Contrary to Boggan’s focus on whether his conviction qualifies for the

enumerated crime of burglary in § 924(e)(2)(ii), this court agrees with the

government that the conviction falls under the residual clause of the violent felony




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definition because it “involve[d] conduct that presents a serious potential risk of

physical injury to another.” § 924(e)(2)(ii). 2

       1. Crimes that qualify as a violent crime under the residual clause

       As this court recently recognized in United States v. Petite, 703 F.3d 1290,

1294 (11th Cir. 2013), the Supreme Court requires courts to use a “categorical

approach” and a “comparative inquiry” to determine whether a crime qualifies as a

violent crime under the residual clause of the ACCA. “Using the categorical

approach, the central inquiry is whether the offense ‘presents a serious potential

risk of physical injury to another’ comparable to the risk posed by the ACCA’s

enumerated crimes.” Petite, 703 F.3d at 1294 (quoting Sykes v. United States, ___

U.S. ___, 131 S.Ct. 2267, 2273 (2011)). “[A] crime involves the requisite risk

when ‘the risk posed by [the crime in question] is comparable to that posed by its

closest analog among the enumerated offenses.’” Id.

       Here, the crime in question is third-degree burglary, which has the nearly

direct analogue of “generic” burglary among the enumerated offenses in the second

prong of violent felonies in the ACCA (“generic” because of the Supreme Court’s

holding in Taylor deciding what constitutes burglary for purposes of the ACCA).

2
 The government contends that Boggan’s brief has not addressed the merits of the district court’s
clear holding that his 1981 third-degree burglary conviction falls under the residual clause of the
ACCA and has therefore abandoned the point. See United States v. Wright, 607 F.3d 708, 713
(11th Cir. 2010) (“issues and contentions not raised in the initial brief are deemed abandoned”).
We need not resolve that abandonment issue either because there is no reversible error shown in
the district court’s conclusion that Boggan’s 1981 burglary conviction qualifies as a violent
felony under the residual clause.
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The question for the court, then, is whether Alabama’s third-degree burglary crime

poses the same risk as generic burglary.

      In United States v. Matthews, this court addressed a similar application of

the residual clause to determine whether the defendant’s convictions for third-

degree burglary under Florida’s third-degree burglary statute, Fla. Stat. § 810.02,

qualified as a violent crime under the ACCA. 466 F.3d 1271 (11th Cir. 2006). At

the time of the convictions, the Florida statute defined a “building” as including a

structure’s curtilage, and “Florida case law construe[d] curtilage narrowly, to

include only an enclosed area surrounding a structure.” Id. at 1274 (citing State v.

Hamilton, 660 So.2d 1038, 1044 (Fla. 1995); Henry v. State, 707 So.2d 370, 372

(Fla. Dist. Ct. App. 1998)).

      The defendant in Matthews argued that his prior burglary conviction did not

qualify as a violent felony for purposes of the ACCA because the curtilage of a

structure is not included in the generic definition of burglary and the record of his

conviction did not clarify whether he burglarized a structure or its curtilage. This

court agreed that this ambiguity existed but determined that the defendant’s

burglary conviction qualified as a violent felony because it fell within the residual

clause, concluding:

      [In committing the state offense, the burglar] may come into contact
      with the property’s owners, occupants, or caretakers. His close
      physical presence to the structure could lead an innocent person to
      investigate why he is there, and his presence alone could reasonably
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      be perceived by any of these persons as threatening. Either the
      innocent or the burglar might react violently. In short, the burglar’s
      presence in the curtilage of the structure presents a serious potential
      risk that violence will ensue and someone will be injured.

Id. at 1275. Thus, this court held “that a Florida conviction for burglary of a

structure’s curtilage is a conviction for a violent crime” for purposes of the ACCA.

Id. at 1276.

      2. Matthews is applicable to Boggan’s conviction

      In Matthews, this court held that burglary of the curtilage poses the same

risk as burglary of the building because in either case the burglar “may come into

contact with the property’s owners, occupants, or caretakers.” Id. at 1275. To apply

that reasoning here, the court would have to conclude that burglary of a “vehicle,

aircraft or watercraft used for the lodging of persons or carrying on business

therein” poses the same risk as burglary of a traditional building because the

burglar may come into contact with the property’s owners, occupants, or

caretakers. A vehicle, aircraft, or watercraft may not always be in close enough

proximity to a traditional building to create the same risk of violence to another

created by burglarizing a traditional building. But the Alabama statute clarifies that

a person burglarizes a vehicle, aircraft, or watercraft only if it is used for the

“lodging of persons or carrying on business therein.” This qualification implies

that other people could be in close proximity to the “building” that is burglarized,

posing a similar risk of violent confrontation. Thus, a conviction under the

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Alabama third-degree burglary statute demonstrates “a serious potential risk of

physical injury to another comparable to the risk posed by the ACCA’s enumerated

crimes.”

                                   IV. Conclusion

      The court holds that a conviction for violation of Alabama’s third-degree

burglary statute, Ala. Code § 13A-7-7 (1979), constitutes a “violent felony” for

purposes of statutory sentencing enhancements under the ACCA because it

“involves conduct that presents a serious potential risk of physical injury to

another.”

AFFIRMED.




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HILL, Circuit Judge, dissenting:

      I believe that the trend among the courts to resurrect the statute of conviction

as a valid crime of violence under the residual clause, when it has been specifically

disqualified as a crime of violence under the elements or enumerated clauses, is

error. It is one thing to determine that a crime is one of violence under the residual

clause because it poses a significant risk of physical injury when that crime has not

previously been disqualified as a crime of violence under the elements or

enumerated clauses. But, in my view, it is quite another thing to hold that a crime

that has been specifically disqualified under those clauses – either because its

elements are over inclusive and permit conviction for clearly non-violent conduct,

or because it is an enumerated crime but allows conviction for non-generic

versions of that crime – can still be used to enhance because, under the residual

clause, the court can posit circumstances under which its violation might pose a

serious risk of physical injury to someone. If this is permitted, then the elements

and enumerated clauses have no legal significance. They become mere surplusage,

and should be disregarded entirely. In the future, no court should waste its time on

any claim that a crime does not qualify as a crime of violence under these clauses.

Only claims that a crime does not qualify under the residual clause should be

entertained, and even then the outcome cannot seriously be in doubt. Any crime

can pose a serious threat of physical injury if we are free to speculate and invent a


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set of circumstances under which such a risk might arise. There is no principled

limit to this exercise. 1 Because I believe such an enterprise violates the

constitutional principle that a law must provide notice of what conduct is

prohibited or what conduct might be used to significantly enhance a criminal

sentence, I respectfully dissent.




1
 For example, I can imagine that Bernie Madoff’s victims might easily have gone berserk and,
one or more, attacked him. Thus, felony financial fraud upon a victim, measured by the residual
clause, is a crime of violence.
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