                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3764
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Jonathon Lee Kinney

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of North Dakota - Fargo
                                  ____________

                           Submitted: October 16, 2017
                              Filed: April 23, 2018
                                 ____________

Before WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.
                          ____________

SHEPHERD, Circuit Judge.

       Jonathon Kinney pled guilty to one count of possession of a firearm by a
convicted felon and one count of possession of ammunition by a convicted felon, both
in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). Pursuant to 18 U.S.C.
§ 924(e)(1) and 924(e)(2)(B)(ii) of the Armed Career Criminal Act (ACCA), the
district court sentenced Kinney as an armed career criminal based on four previous
convictions for accomplice to burglary under North Dakota law. Because we find
that the North Dakota statute of conviction is indivisible and criminalizes more than
the definition of “burglary” under federal law, we reverse and remand for
resentencing.

                                      I. Discussion

       Kinney argues that the North Dakota burglary statute is both indivisible and
overbroad, thereby precluding convictions under that statute from serving as ACCA
predicates. The government responds, asserting that a conviction under the statute
categorically qualifies as a violent felony or, alternatively, that the statute is divisible
and application of the modified categorical approach shows that Kinney was
convicted of a crime matching the generic definition of burglary under federal law.
“We review de novo a district court’s finding that a defendant’s prior conviction
constitutes a violent felony for purposes of the ACCA.” United States v. Lindsey,
827 F.3d 733, 738 (8th Cir.), cert. denied, 137 S. Ct. 413 (2016).

                               A. The ACCA Framework

         Under the ACCA, a defendant is subject to a fifteen-year mandatory minimum
sentence if he or she is convicted of being a felon in possession of a firearm and has
three prior convictions for a violent felony. 18 U.S.C. § 924(e)(1). A “violent
felony” includes any state or federal felony that “is burglary, arson, or extortion.”
§ 924(e)(2)(B)(ii). “In listing th[e]se crimes, . . . Congress referred only to their usual
or . . . generic version—not to all variants of the offenses.” Mathis v. United States,
136 S. Ct. 2243, 2248 (2016). Therefore, as it pertains to burglary, “Congress meant
a crime ‘contain[ing] the following elements: an unlawful or unprivileged entry into
. . . a building or other structure, with intent to commit a crime.’” Id. (alteration in
original) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)).



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       “To determine whether a prior conviction is for generic burglary . . . courts
apply what is known as the categorical approach: They focus solely on whether the
elements of the crime of conviction sufficiently match the elements of generic
burglary, while ignoring the particular facts of the case.” Id. “Elements are the
constituent parts of a crime’s legal definition—the things the prosecution must prove
to sustain a conviction.” Id. (internal quotation marks omitted). Means, “by contrast,
are mere real-world things—extraneous to the crime’s legal requirements. . . . They
are circumstance[s] or event[s] having no legal effect [or] consequence: In particular,
they need neither be found by a jury nor admitted by a defendant.” Id. (alterations in
original) (internal quotation marks omitted).

        Where a statute lists only a single set of elements, the statute is indivisible and
the standard categorical approach must be used. See id. at 2248-49. This is true even
if the statute lists several alternative factual means for committing a single crime. Id.
at 2249. The Iowa statute at issue in Mathis, for example, criminalized burgling
“‘any building, structure, [or] land, water, or air vehicle.’” Id. at 2250 (alterations
in original) (quoting Iowa Code § 702.12). Because Iowa courts had interpreted the
statute as presenting alternative means for committing the single crime of burglary
and clarified that a jury need not agree on which of the means was present in a
particular case, the United States Supreme Court concluded the statute was
indivisible. Id. at 2253. “In short, the statute defines one crime, with one set of
elements, broader than generic burglary—while specifying multiple means of
fulfilling its locational element, some but not all of which (i.e., buildings and other
structures, but not vehicles) satisfy the generic definition.” Id. at 2250; see also
Descamps v. United States, 133 S. Ct. 2276, 2285-86 (2013) (holding as indivisible
a California burglary statute which prohibited the lawful or unlawful entering of a
place with the intent to steal).

      Accordingly, “[t]he first task for a sentencing court faced with an alternatively
phrased statute is thus to determine whether its listed items are elements or means.”

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Mathis, 136 S. Ct. at 2256. This inquiry should be resolved by looking to
“authoritative sources of state law.” Id. Where “a state court decision definitively
answers the question . . . a sentencing judge need only follow what it says.” Id.
Additionally, the express language of the statute may indicate that alternatively
phrased items are elements “[i]f statutory alternatives carry different punishments”
or if the statute itself identifies “which things must be charged.” Id. Finally, if these
authoritative sources fail to provide a clear answer, judges are allowed a “peek” at
“the record of the prior conviction itself.” Id. at 2256-57 (internal quotation marks
omitted). The Mathis Court hypothesized that where a specific count in “an
indictment and correlative jury instruction[] charge a defendant with burgling a
‘building, structure, or vehicle,’” this would be “as clear an indication as any that
each alternative is only a possible means of commission, not an element that the
prosecutor must prove to a jury beyond a reasonable doubt.” Id. at 2257.

                                B. North Dakota Law

      We therefore turn to North Dakota law to discern whether the statute of
conviction is (1) overinclusive and (2) divisible or indivisible. At the time of
Kinney’s conviction in 1999, the burglary statute at issue read as follows:

      A person is guilty of burglary if he willfully enters or surreptitiously
      remains in a building or occupied structure, or a separately secured or
      occupied portion thereof, when at the time the premises are not open to
      the public and the actor is not licensed, invited, or otherwise privileged
      to enter or remain as the case may be, with intent to commit a crime
      therein.

N.D. Cent. Code § 12.1-22-02 (1999). An “occupied structure” is defined as “a
structure or vehicle”:

      a. Where any person lives or carries on business or other calling; or


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      b. Which is used for overnight accommodation of persons.
      c. Any such structure or vehicle is deemed to be “occupied” regardless
      of whether a person is actually present.

N.D. Cent. Code § 12.1-22-06(4) (1999).

       Looking only at this text, the statute’s overbreadth is apparent. By including
both structures and vehicles within its reach, the statute criminalizes more conduct
than the generic version of the offense. See Shepard v. United States, 544 U.S. 13,
15-16 (2005) (“The A[CCA] makes burglary a violent felony only if committed in a
building or enclosed space (‘generic burglary’), not in a boat or motor vehicle.”). The
government argues against this conclusion by asserting that North Dakota’s decision
to limit the statute only to vehicles used for living or business purposes brings the
statute in line with the generic offense. We disagree. In United States v. Sims, 854
F.3d 1037 (8th Cir. 2017), we dealt with burglary under Arkansas law, and the
Arkansas statute—like the North Dakota statute at issue here—applied to vehicles
“‘[i]n which any person lives’ or ‘[t]hat [are] customarily used for overnight
accommodation.’” Id. at 1040 (alterations in original) (quoting Ark. Code Ann.
§ 5-39-101(4)(A)). As in this case, the government asserted in Sims that this
limitation saved the statute. Id. But we rejected this contention, adopting the
conclusion reached in United States v. Lamb, 847 F.3d 928 (8th Cir. 2017), that
“‘[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.’” Sims, 854 F.3d at 1040 (first, second, and fourth alterations in original)
(quoting Lamb, 847 F.3d at 931). Accordingly, convictions under N.D. Cent. Code
§ 12.1-22-02 (1999) cannot categorically qualify as violent felonies under the ACCA.

      This appeal therefore turns on whether the statute is divisible. Specifically, we
must address whether the phrase “building or occupied structure” denotes two factual
means of committing the single offense of burglary or whether the alternative


                                         -5-
locations are elements under North Dakota law. Kinney argues that the structure of
the statute, North Dakota jury instructions, and available charging documents all
show that the alternative terms are means. In response, the government points to the
disjunctive phrasing of the statute, contending this is decisive.1

       North Dakota law—our first stop in answering this means/elements
inquiry—provides no clear guidance. See Mathis, 136 S. Ct. at 2256. Neither party
directs the court to controlling or persuasive state court precedent, and we have found
none on our own. The language of the statute likewise does little to guide us. The
alternatives do not “carry different punishments,” which may indicate that the terms
are means, but the statute does not identify “which things must be charged.” Id.

       Because these authoritative sources fail to provide an answer, we are allowed
a “peek” at “the record of the prior conviction itself . . . for the sole and limited
purpose of determining whether [the listed items are] element[s] of the offense.” Id.
at 2256-57 (second and third alterations in original) (internal quotation marks
omitted). We have in our record indictments from two of Kinney’s prior convictions,
and each charges Kinney with burgling “a building or occupied structure.” The
indictments “thus reiterat[e] all the terms of [North Dakota’s] law,” and “[t]hat is as
clear an indication as any that each alternative is only a possible means of
commission, not an element that the prosecutor must prove to a jury beyond a
reasonable doubt.” Id. at 2257. Given that the alternatives are means, the statute is
indivisible. Because the statute is both overbroad and indivisible, Kinney’s prior
convictions cannot serve as predicate felonies under the ACCA.




      1
        Contrary to the government’s position, the en banc court recently reiterated
that disjunctive phrasing merely triggers the inquiry into whether the alternatively
phrased items are means or elements. See United States v. Naylor, No. 16-2047, slip
op. at 3 (8th Cir. April 5, 2018).

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                           II. Conclusion

For the reasons above, we reverse and remand for resentencing.
                ______________________________




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