                Case: 15-10612       Date Filed: 02/23/2017      Page: 1 of 4


                                                                      [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 15-10612
                                  Argument Calendar
                              ________________________

                     D.C. Docket No. 1:13-cr-00040-TWT-GGB-1



UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee
                                                                            Cross Appellant,
                                            versus

ANTONIO KILPATRICK HEARD,

                                                                       Defendant-Appellant
                                                                           Cross Appellee.

                              ________________________

                     Appeals from the United States District Court
                         for the Northern District of Georgia
                             _______________________

                                    (February 23, 2017)

Before WILLIAM PRYOR, JORDAN, and BALDOCK, * Circuit Judges.

PER CURIAM:

*
 Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
              Case: 15-10612     Date Filed: 02/23/2017   Page: 2 of 4


      This appeal raises three issues: (1) whether the Georgia burglary statute, Ga.

Code Ann. § 16-7-1 (2011), includes the elements of generic burglary such that a

conviction for violating the statute can qualify as a predicate offense under the

Armed Career Criminal Act, 18 U.S.C. § 924(e); (2) whether Antonio Heard’s

sentence is substantively unreasonable; and (3) whether Heard was denied due

process when the district court considered testimony that included hearsay

statements of an unidentified inmate that established that Heard made threats

against federal agents. Heard argues that generic burglary within the meaning of

the Armed Career Criminal Act includes an element of breaking and entering but

that the Georgia statute for his prior conviction does not contain that element. The

district court adopted this conclusion. Heard also argues that his sentence was

substantively unreasonable in the light of the conditions of his presentence

detention and that Heard suffered a violation of due process because the hearsay

statements were unreliable.

      The government argues, and we agree, that our decision in United States v.

Gundy, 842 F.3d 1156 (11th Cir. 2016), which interpreted the same burglary

statute, decides the first issue. After reviewing the record in Gundy, we concluded

that the defendant’s “burglary convictions involved these three elements: (1) an

unlawful entry (2) into a dwelling house or building (3) with intent to commit a

crime therein.” Id. at 1169. We held that “[t]hese elements substantially conform to



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the generic definition of burglary.” Id. That is, convictions under the Georgia

burglary statute may sometimes serve as predicate offenses under the Armed

Career Criminal Act because the Georgia burglary statute is divisible and includes

the elements of generic burglary. Id. The contrary determination by the district

court that generic burglary requires an element of breaking and entering conflicts

with our decision in Gundy. We vacate Heard’s sentence and remand to the district

court with instructions to determine whether the record establishes that Heard was

convicted of generic burglary. See Shepard v. United States, 544 U.S. 13, 26

(2005). Because we vacate his sentence, Heard’s argument that his sentence is

substantively unreasonable is moot.

      The district court did not err when it relied on the testimony of Agent Lance

Greer. The authority of a district court to consider at sentencing hearsay statements

from unidentified declarants is well established. E.g., United States v. Rodriguez,

765 F.2d 1546, 1554–55 (11th Cir. 1985). Heard has not proved that this appeal

includes circumstances that made the testimony unreliable. He has not cited

evidence in the record that contradicts the hearsay statements, see United States v.

Reme, 738 F.2d 1156, 1167 (11th Cir. 1984), and the hearsay statements included

indicia of reliability such as the unidentified inmate’s status as Heard’s former

cellmate, Rodriguez, 765 F.2d at 1555, and the specificity of the statements




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concerning whom Heard targeted with his threats and how Heard intended to

achieve his threatened action.

      We VACATE the sentence of the district court and REMAND for

resentencing but AFFIRM the determination that the district court can consider the

hearsay statements.




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