     Case: 15-50909      Document: 00513936636         Page: 1    Date Filed: 04/03/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals

                                      No. 15-50909
                                                                               Fifth Circuit

                                                                             FILED
                                                                          April 3, 2017

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
              Plaintiff - Appellee

v.

ANDRE TAYLOR, also known as Andre M. Taylor, also known as Miguel
Andre Taylor, also known as Andre Miguel Taylor,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-91-1


Before WIENER, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Andre Taylor contends that his sentence was
wrongfully calculated because he was improperly classified as an armed career
criminal under the Armed Career Criminal Act (“ACCA”) based on his Ohio
aggravated burglary convictions. He asserts that those convictions do not




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                         No. 15-50909
qualify under the “generic” definition of burglary. We vacate Taylor’s sentence
and remand for resentencing.
                                                 I.
                                              FACTS
       On September 18, 2015, Taylor was convicted by a jury on two counts of
being a felon in possession of a firearm. 1 His advisory guideline range is 324 to
405 months of imprisonment. Taylor was subject to an enhanced statutory
minimum sentence of 15 years per count under the ACCA, in part, because of
two 1988 convictions for aggravated burglary under Ohio law. 2


       1   See 18 U.S.C. §§ 922(g)(1), 924(a)(2).
       2   The Ohio statute in effect at the time of Taylor’s convictions stated:

       (A) No person, by force, stealth, or deception, shall trespass in an occupied structure,
           as defined by § 2909.01 of the Revised Code, or in a separately secured or
           separately occupied portion thereof, with purpose to commit therein any theft
           offense, as defined in section 2913.01 of the Revised Code, or any felony, when any
           of the following apply:

                    (1) The offender inflicts, or attempts or threatens to inflict physical harm
                        on another;
                    (2) The offender has a deadly weapon or dangerous ordnance, as defined in
                        section 2923.1 of the Revised Code, on or about his person or under his
                        control;
                    (3) The occupied structure involved is the permanent or temporary
                        habitation of any person, in which at any time any person is present or
                        likely to be present.

OHIO REV. CODE ANN. § 2911.11(A)(3) (West 1973).

The statutory definition of occupied structure reads:

       [A]n ‘occupied structure’ is any house, building, outbuilding, watercraft, aircraft,
railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof,
to which any of the following applies:

       (A) Which is maintained as a permanent or temporary dwelling even though it is
           temporarily occupied, and whether or not any person is actually present;
       (B) Which at the time is occupied as the permanent or temporary habitation of any
           person, whether or not any person is actually present;
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                                      No. 15-50909
       Taylor objected to the ACCA enhancement, arguing that his prior
aggravated burglary convictions were not “violent felonies” under § 924(e)(1)
because the Ohio statutory definition is broader than the “generic” definition
of burglary. 3 He argued specifically that the statute was overbroad because it
criminalized entry into non-buildings, for example, tents and watercraft. The
government countered that the court should use the modified categorical
approach and review the underlying documents which show that Taylor
burglarized buildings. The district court overruled Taylor’s objections and
adopted the recommendation of the presentence investigation report. The court
imposed concurrent 405-month terms of imprisonment on each count, followed
by concurrent five-year terms of supervised release. Taylor timely filed a
notice of appeal.
                                            II.
                                 STANDARD OF REVIEW
       We review a district court’s interpretation of the Sentencing Guidelines
de novo. 4 We employ a “categorical” approach to compare the elements of the
state offense and the “generic” offense. 5 “Under this approach we look ‘not to
the facts of the particular prior case,’ but instead to whether ‘the state statute




       (C) Which at the time is specifically adapted for the overnight accommodation of any
           person, whether or not any person is actually present;
       (D) In which at the time any person is present or likely to be present.

OHIO REV. CODE ANN. § 2909.01 (West 1973).
       3 See Taylor v. United States, 495 U.S. 575, 599 (1990). Taylor renewed his objection

at sentencing.
       4 United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
       5 Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

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                                        No. 15-50909
defining the crime of conviction’ categorically fits within the ‘generic’ federal
definition of a corresponding” crime. 6
                                              III.
                                          ANALYSIS
       The Supreme Court has held that “generic burglary” has the following
elements: “an unlawful entry into, or remaining in, a building or other
structure, with intent to commit a crime.” 7 Taylor asserts 8 that the Ohio
aggravated burglary statute is broader than the “generic” definition of
burglary because it criminalizes the entry into places in addition to buildings
and other structures.
       Similar to Taylor, the defendant in Mathis v. United States argued that
the locational element of Iowa’s burglary statute was broader than “generic”
burglary because it prohibited trespass into occupied structures including
“land, water, or air vehicle[s].” 9 The Supreme Court agreed and held that the
Iowa burglary statute was broader than “generic” burglary and could not give
rise to an enhancement under the ACCA. 10 The burglary statute at issue here



       6  Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting Gonzales v. Duenas–
Alvarez, 549 U.S. 183, 186 (2007)); see also Mathis v. United States, 136 S. Ct. 2243, 2248,
(2016).
        7 Taylor, 495 U.S. at 598.
        8 Taylor also contends that the district court erred by applying the modified categorical

approach to determine whether Ohio aggravated burglary constitutes “generic” burglary for
the purposes of § 924(e) because the Ohio statute is not divisible. The government concedes
that, in light of Mathis, the modified categorical approach used by the district court is now to
be used only when a statute is divisible, and “the modified categorical approach was not the
appropriate method for determining whether Taylor’s convictions for Ohio aggravated
burglary qualified as ACCA predicates.” Thus, we do not address the argument that Taylor’s
convictions could be subject to the modified categorical approach. The government responds
that, to the extent the district court erred in applying the modified categorical approach, it
was harmless error because Taylor’s prior convictions constitute “generic” burglary.
        9 Mathis, 136 S. Ct. at 2250, 2257; see Taylor, 495 U.S. at 598.
        10 Mathis, 136 S. Ct. at 2257.

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                                       No. 15-50909
is materially indistinguishable from the Iowa statute in Mathis as to the
location element. Both statutes criminalize entry into places other than
buildings and other structures. 11 Thus, the Ohio aggravated burglary charges
may not be used to subject Taylor to an enhanced sentence as an armed career
criminal under the ACCA.
                                             IV.
                                       CONCLUSION
       We VACATE Taylor’s sentence and REMAND for resentencing
consistent with this opinion.




       11 In fact, the Court of Appeals of Ohio affirmed a conviction for aggravated burglary
of a houseboat, demonstrating that the Ohio statute’s location element is broader than
“generic” burglary both facially and in practice. State v. Jackson, No. 102271, 2015 WL
6550676 (Ohio Ct. App. Oct. 29, 2015). Furthermore, after all of the briefs were filed in this
case, another panel of this court issued an opinion in United States v. Bernel-Aveja, holding
that the Ohio third degree burglary statute did not constitute “generic” burglary. 844 F.3d
206, 212-14 (5th Cir. 2016). The Bernel-Aveja panel focused on the intent element of burglary
and found that because intent could be formed after the underlying trespass, the Ohio third
degree burglary statute was broader than the “generic” definition of burglary. Id. Even
though Bernel-Aveja dealt with a different statute than the aggravated burglary statute at
issue here, the panel relied on an Ohio Supreme Court case interpreting the aggravated
burglary statute, which held that intent could be formed while the trespass was in progress.
Id. (citing State v. Fontes, 721 N.E.2d 1037, 1039-40 (Ohio 2000)). Taylor did not argue that
the statute was overbroad based on the intent requirement, but the government submitted a
Rule 28j letter acknowledging this new opinion, and it appears the government now concedes
that, based on Bernel-Aveja, the Ohio aggravated burglary statute is broader than “generic”
burglary.
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