                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1984
                         ___________________________

                                Alexander Faulkner

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota- Minneapolis
                                   ____________

                            Submitted: March 14, 2019
                               Filed: June 7, 2019
                                 ____________

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
                         ____________

GRASZ, Circuit Judge.

      Alexander Faulkner appeals the district court’s1 denial of his motion to vacate
his sentence under 28 U.S.C. § 2255, arguing his prior conviction for Indiana




      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
burglary did not justify a sentence enhancement under the Armed Career Criminal
Act (“ACCA”). We affirm.

                                   I. Background

        Faulkner was convicted in 2015 of being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court
imposed an enhanced sentence of 280 months of imprisonment after finding Faulkner
had previously been convicted of four qualifying predicate offenses under the ACCA:
a 1982 attempted burglary in Illinois, a 1984 burglary in Indiana, and two 1996
federal drug crimes. On direct appeal, Faulkner challenged the district court’s
reliance on three of his four predicate convictions in imposing the enhancement —
all but his 1984 Indiana burglary conviction. United States v. Faulkner, 826 F.3d
1139, 1147–49 (8th Cir. 2016). During the appeal, the government conceded the
1982 Illinois burglary conviction no longer qualified under Supreme Court precedent.
Id. at 1147 (citing Johnson v. United States, 135 S. Ct. 2551 (2015)). But we agreed
with the government that Faulkner’s previous federal drug convictions were two
separate offenses and, combined with his unchallenged 1984 Indiana burglary
conviction, still justified the enhancement for having three qualifying offenses under
18 U.S.C. § 924(e). Id. at 1149. We therefore affirmed the sentence. Id.

       Faulkner then filed a motion in 2017 to vacate his sentence under 28 U.S.C.
§ 2255, challenging for the first time the district court’s reliance on his 1984 Indiana
burglary conviction when imposing his sentence. The district court denied the motion
and concluded Faulkner’s challenge was procedurally defaulted because he failed to
raise it at trial or on direct appeal. The district court thus found the claim not
cognizable unless it fit a miscarriage-of-justice exception. The district court then
considered Faulkner’s merits arguments and determined, in relevant part, Faulkner’s
Indiana burglary offense was not broader than the generic offense in light of a recent
Seventh Circuit decision rejecting an identical argument in a different case. See

                                          -2-
United States v. Perry, 862 F.3d 620 (7th Cir. 2017). The district court granted a
certificate of appealability, and Faulkner now appeals the denial of his § 2255 motion.

                                   II. Discussion

       We need not address whether Faulkner’s argument regarding his 1984 burglary
conviction is defaulted because we agree with the district court on the merits. If a
defendant convicted of being a felon in possession of a firearm or ammunition under
18 U.S.C. § 922(g)(1) has at least three previous convictions for a “violent felony”
or serious drug offense, “the ACCA increases the range of possible sentences” from
a maximum of ten years in prison “to a mandatory minimum of fifteen years.” United
States v. Naylor, 887 F.3d 397, 399 (8th Cir. 2018) (en banc) (citing 18 U.S.C.
§ 924(a)(2), (e)(1)). The ACCA expressly defines “violent felony” to include
“burglary.” 18 U.S.C. § 924(e)(2)(B)(ii). But Faulkner’s Indiana burglary conviction
counts as ACCA “burglary” only if the elements of this state offense are no broader
than (i.e., cover no more conduct than) the elements of the “generic offense.” Naylor,
887 F.3d at 399 (quoting Mathis v. United States, 136 S. Ct. 2243, 2247 (2016)).
Because neither party disputes Indiana’s burglary statute in 1984 “sets out a single
(or ‘indivisible’) set of elements to define a single crime,” we apply the categorical
approach and “simply compare the [state] statute’s elements to those of generic
burglary to see if they match.” Id. at 400 (quoting Mathis, 136 S. Ct. at 2248).

      “This court reviews de novo the district court’s determination that a
defendant’s prior conviction constitutes a violent felony under the ACCA.” Id. at 400
(quoting United States v. Walker, 840 F.3d 477, 489 (8th Cir. 2016)).

      As the Seventh Circuit has observed, the definition of Indiana burglary “is
nearly identical to that of ‘generic’ burglary.” Perry, 862 F.3d at 622. “Indiana law
defines burglary as ‘break[ing] and enter[ing] the building or structure of another
person, with intent to commit a felony or theft in it.’” Id. (alteration in original)

                                         -3-
(quoting Ind. Code § 35–43–2–1).2 And the Supreme Court has defined generic
burglary as “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). This parity comes as little surprise since the Supreme Court relied
for its definition on “the generic sense in which the term is now used in the criminal
codes of most States.” Id.

       We disagree with Faulkner’s argument that Indiana burglary is nonetheless
broader than the generic offense simply because the Indiana Supreme Court has
construed “structure” in the state statute to include even outdoor, fenced-in areas. See
McCovens v. State, 539 N.E.2d 26, 29 (Ind. 1989) (applying state burglary statute to
fenced-in area surrounding a business); Gray v. State, 797 N.E.2d 333, 336 (Ind. Ct.
App. 2003) (applying the statute to fenced-in car lot at an auto-repair shop). But see
Calhoon v. State, 842 N.E.2d 432, 435 (Ind. Ct. App. 2006) (refusing to apply the
statute to area only partially enclosed by a fence). The Seventh Circuit’s recent
decision in Perry rejected an identical argument. See Perry, 862 F.3d at 622–24
(holding because Indiana courts have applied the state burglary statute to breaking
and entering into wholly-enclosed fenced-in areas and not curtilage, vehicles, or other
movable conveyances, Indiana burglary is no broader than the generic offense). We
agree with the Seventh Circuit for the reasons discussed in its well-reasoned opinion.
See id.

     Faulkner argues the Seventh Circuit failed to conduct a “close analysis” of
Supreme Court precedent allegedly clarifying that “structure” in the generic offense
means only “something very akin to a building.” It is true the Supreme Court has

      2
       Indiana’s current burglary statute is materially identical to the 1984 version,
which provided “[a] person who breaks and enters the building or structure of another
person, with intent to commit a felony in it, commits burglary.” Ind. Code
§ 35–43–2–1 (1982). Therefore, the Seventh Circuit’s reasoning in Perry is equally
applicable here.

                                          -4-
recognized Congress included burglary as an ACCA predicate offense because “[t]he
fact that an offender enters a building to commit a crime often creates the possibility
of a violent confrontation between the offender and” another person. Taylor, 495
U.S. at 588 (emphasis added). The Supreme Court has also said the generic meaning
of burglary is “practically identical” to an earlier version of the ACCA expressly
defining burglary to include entering only into a building.3 Id. at 598. Finally, the
Supreme Court has observed generic burglary “approximates” the Model Penal
Code’s contemporaneous definition of burglary: i.e., “enter[ing] a building or
occupied structure, or separately secured or occupied portion thereof, with [the]
purpose to commit a crime therein, unless the premises are at the time open to the
public or the actor is licensed or privileged to enter.” Id. at 598 n.8 (emphasis added)
(quoting Model Penal Code § 221.1 (Am. Law Inst. 1980)).

       However, it is clear generic burglary extends to structures beyond those “akin
to” buildings. In United States v. Stitt, the Supreme Court held state statutes
prohibiting burglary of vehicles customarily used or adapted for “overnight
accommodation of persons” are no broader than the generic offense. 139 S. Ct. 399,
404 (2018) (quoting Ark. Code Ann. § 5–39–101(1) and Tenn. Code Ann.
§ 39–14–401(1)(A), (B)). The Supreme Court reasoned that a majority of state
statutes in 1986 defined burglary to cover vehicles adapted for lodging — including
some defining “structure” to include such vehicles. Id. at 406. Stitt confirms the
generic offense is broad enough to cover burglary of “structures” not “akin to”
buildings.



      3
       Congress enacted the ACCA in 1984 and expressly defined burglary to mean
“any felony consisting of entering or remaining surreptitiously within a building that
is property of another with intent to engage in conduct constituting a Federal or State
offense.” Taylor, 495 U.S. at 581 (emphasis added) (quoting 18 U.S.C. § 1202(c)(9)
(1984)). Congress deleted this definition in a 1986 amendment. Id. at 598.


                                          -5-
       Furthermore, Stitt’s holding does not define the outer limits of the generic
offense. In both Taylor and Stitt, the Supreme Court noted, on the one hand, ACCA
burglary is not limited to “especially dangerous” burglaries of the kind which occur
in “dwellings,” otherwise Congress would not have separately included an
enhancement for “any crime that ‘involves conduct that presents a serious potential
risk of physical injury to another’” (i.e., crimes within the since-invalidated residual
clause). Taylor, 495 U.S. at 597 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)); Stitt, 139 S.
Ct. at 405; see Johnson, 135 S. Ct. at 2563 (invalidating the residual clause as
unconstitutionally vague). On the other hand, ACCA burglary still involves an
“inherent potential for harm to persons” given, in part, “the possibility of a violent
confrontation between the offender . . . [and] some other person who comes to
investigate.” Taylor, 495 U.S. at 588 (emphasis added); Stitt, 139 S. Ct. at 406.
Additionally, the Model Penal Code’s contemporaneous definition of burglary further
defines “occupied structure” to include any place adapted “for carrying on business
therein, whether or not a person is actually present.” Model Penal Code § 221.0(1)
(Am. Law. Inst. 1980). In light of this framework, we see no reason to reject the
Seventh Circuit’s conclusion Indiana burglary is within the generic offense.4

                                   III. Conclusion

      We affirm the judgment of the district court.
                      ______________________________


      4
        Faulkner argues Indiana’s burglary statute is still too broad because it would
cover even breaking and entering onto a golf course surrounded by a fence designed
merely to keep out nonpaying members. But Faulkner points to no Indiana cases
holding as much. And in order to find a state burglary statute broader than the
generic offense, there must be “a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls outside the generic
definition of [the] crime.” United States v. Lamb, 847 F.3d 928, 933 (8th Cir. 2017)
(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

                                          -6-
