                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-4038
                         ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Leon Robinson, Jr., Jr.

                         llllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
              for the Eastern District of Arkansas - Western Division
                                   ____________

                          Submitted: September 21, 2017
                            Filed: September 27, 2017
                                  [Unpublished]
                                  ____________

Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
                           ____________

PER CURIAM.

       In 2009, a jury convicted Leon Robinson, Jr. of being a felon in possession of
a firearm. The district court concluded he had at least three prior violent felony
convictions and sentenced him under the Armed Career Criminal Act (ACCA) to the
mandatory minimum fifteen years imprisonment. See 18 U.S.C. § 924(e)(1). After
the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), we
authorized Robinson to file a successive 28 U.S.C. § 2255 motion to argue that he
should be resentenced because his prior Arkansas residential burglary felony
convictions, see Ark. Code Ann. § 5-39-201(a)(1), may no longer be counted as
predicate violent felony convictions. The district court ruled that these convictions
were predicate ACCA violent felonies and denied § 2255 relief. Robinson appeals.

      As the district court recognized, after Johnson invalidated the “residual clause”
in 18 U.S.C. § 924(e)(2)(B)(ii), a burglary conviction may be counted only if it was
the generic offense of “burglary” enumerated in § 924(e)(2)(B)(ii) -- “an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to
commit a crime,” Taylor v. United States, 495 U.S. 575, 598 (1990) (emphasis
added). A conviction qualifies only if the statute’s elements are the same as, or
narrower than, those of generic burglary, an inquiry that must be made using the
categorical approach. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

       The Arkansas statute defines “[r]esidential occupiable structure” to mean “a
vehicle, building, or other structure: (i) [i]n which any person lives; or (ii) [t]hat is
customarily used for overnight accommodation of a person whether or not a person
is actually present.” Ark. Code Ann. § 5-39-101(4)(A). A “vehicle” is not, or at least
usually is not, “a building or other structure,” one element of the definition of generic
burglary in Taylor. Thus, the issue is whether a statute limiting the inclusion of
vehicles to those that are “customarily used for overnight accommodation of a
person” brings the Arkansas residential burglary statute, categorically, within the
confines of generic burglary. The district court, noting a conflict in the circuits on
this issue and no controlling Eighth Circuit precedent, concluded that the “better
reasoned” circuit court opinions include vehicles designed or adapted for overnight
accommodation of persons within the Supreme Court’s definition of generic burglary
and denied § 2255 relief.




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       With the case pending on appeal and fully briefed, another panel of this court
ruled that an Arkansas residential burglary conviction will not qualify as generic
burglary under the ACCA, rejecting the government’s contention that generic
burglary includes vehicles adapted for overnight accommodations. United States v.
Sims, 854 F.3d 1037, 1040 (8th Cir. 2017), reh’g en banc denied, Aug. 3, 2017. After
this case was scheduled for oral argument on September 21, 2017, we asked the
government to address our recent decision in Sims. The government instead filed a
motion to hold this case in abeyance, explaining that its time to petition the Supreme
Court for a writ of certiorari in Sims has not expired. We denied that motion,
removed the case from the argument calendar, and now conclude that Sims is
controlling Eighth Circuit precedent that our panel must follow unless and until Sims
is reversed by the Supreme Court or overruled en banc in a subsequent case.

      Accordingly, the judgment of the district court denying Robinson’s motion to
correct his sentence is reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
                         ______________________________




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