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                                                                                [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-13066
                              ________________________

                        D.C. Docket No. 1:13-cr-20389-KMW-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff - Appellee,

                                            versus

KELVIN ESPRIT,

                                                                  Defendant - Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                   (November 21, 2016)

Before JORDAN and JILL PRYOR, Circuit Judges, and PROCTOR, * District
Judge.

       *
       Honorable R. David Proctor, United States District Judge for the Northern District of
Alabama, sitting by designation.
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JILL PRYOR, Circuit Judge:

      In this direct appeal, we are tasked with deciding whether a prior conviction

for burglary under Florida law may serve as a basis for an enhanced sentence under

the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). In light of the

Supreme Court’s decisions in Johnson v. United States, 135 S. Ct. 2551 (2015),

and Mathis v. United States, 136 S. Ct. 2243 (2016), the government agrees with

Kelvin Esprit, who is serving an ACCA-enhanced sentence, that his burglary

convictions cannot support such a sentence. For the reasons that follow, we agree

with Mr. Esprit as well. We therefore vacate Mr. Esprit’s sentence and remand

with instructions that he be resentenced without the ACCA enhancement.

                               I.      Factual Background

      Along with other offenses, a jury convicted Kelvin Esprit of one count of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).

Although ordinarily that charge carries a maximum punishment of 10 years’

imprisonment, if an individual has three or more prior convictions for a “violent

felony” or “serious drug offense,” ACCA increases his term of incarceration to a

minimum of 15 years. 18 U.S.C. § 924(a)(2), (e). The district court in Mr. Esprit’s

case determined that he had four qualifying prior violent felony convictions, two of

which were for burglary under Florida law. The court overruled Mr. Esprit’s



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objection to the imposition of an enhanced sentence based on the burglary

convictions and imposed a sentence of 188 months’ imprisonment.

      Mr. Esprit appealed, renewing his challenge to the use of his Florida

burglary convictions to enhance his sentence. To qualify as an ACCA predicate at

the time of his sentencing, his Florida burglary convictions were required to satisfy

one of ACCA’s three definitions of violent felony. That is, Florida burglary must

be an offense that (1) “has as an element the use, attempted use, or threatened use

of physical force against the person of another”; (2) “is burglary, arson, or

extortion, [or] involves the use of explosives”; or (3) “otherwise involves conduct

that presents a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B)(i)–(ii). These three definitions are known, respectively, as the

elements clause, enumerated crimes clause, and residual clause.

      Under Florida law, burglary is defined as “[e]ntering a dwelling, a structure,

or a conveyance with the intent to commit an offense therein.” Fla. Stat.

§ 810.02(1)(b)(1). Another part of the statute defines “dwelling” as

      a building or conveyance of any kind, including any attached porch,
      whether such building or conveyance is temporary or permanent,
      mobile or immobile, which has a roof over it and is designed to be
      occupied by people lodging therein at night, together with the
      curtilage thereof.




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Id. § 810.011(2); see also id. § 810.011(1) (defining “structure” as “a building of

any kind, either temporary or permanent, which has a roof over it, together with the

curtilage thereof”).

       A conviction under this statute indisputably does not implicate the elements

clause, but the government previously argued in this appeal that it fell within the

residual clause. In Johnson, the Supreme Court held that the residual clause was

unconstitutionally vague. 135 S. Ct. at 2563. In response, the government

conceded that Mr. Esprit’s prior burglary convictions could not qualify as

predicates under ACCA’s residual clause but asserted that they nonetheless

qualified as enumerated crimes. Now, in light of the Supreme Court’s decision in

Mathis, which elaborated on the appropriate analysis for considering whether an

offense qualifies as an enumerated crime, the government agrees with Mr. Esprit

that a Florida burglary conviction cannot serve as a predicate offense for his

ACCA enhancement. And, because Mr. Esprit has only two qualifying prior

violent felonies without the burglary convictions, the government concedes that he

is entitled to be resentenced. We agree. 1

                                        II.     ANALYSIS



       1
          “Confessions of error are, of course, entitled to and given great weight, but they do not
relieve this Court of the performance of the judicial function.” Sibron v. New York, 392 U.S. 40,
58 (1968) (internal quotation marks omitted).


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      We review de novo whether a prior state conviction qualifies as a “violent

felony” under ACCA. United States v. Howard, 742 F.3d 1334, 1341 (11th Cir.

2014). We first examine the Supreme Court and Circuit precedent that drives our

analysis of whether a conviction for Florida burglary falls within ACCA’s

definition of “violent felony.” We then apply those principles to Florida’s law.

   A. The Evolution of Our Framework for Determining Whether a State
      Offense Qualifies as an Enumerated Crime

      Although ACCA’s enumerated crimes include the offense of burglary, it is

axiomatic by now that not all state burglary statutes qualify as burglary under

ACCA. See Mathis, 136 S. Ct. at 2248 (citing Taylor v. United States, 495 U.S.

575, 598 (1990)). Indeed, “[i]n listing those crimes, . . . Congress referred only to

their usual or (in our terminology) generic versions—not to all variants of the

offenses.” Id. “That means as to burglary—the offense relevant in this case—that

Congress meant a crime containing the following elements: an unlawful or

unprivileged entry into a building or other structure, with intent to commit a

crime.” Id. (alteration and internal quotation marks omitted).

      In determining whether a prior conviction (here, Florida burglary) is

equivalent to generic burglary, we must “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. If the elements of the state offense

are either “the same as, or narrower than, those of the generic offense,” then the
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conviction meets ACCA’s definition. Id. This is known as the “categorical

approach.” Id.

      For the limited purpose of “help[ing] implement the categorical approach,”

the Supreme Court has also recognized a “narrow range of cases” in which courts

can use what is called the “modified categorical approach.” Descamps v. United

States, 133 S. Ct. 2276, 2283, 2285 (2013) (internal quotation marks omitted). The

modified categorical approach allows courts to review certain documents from the

state proceedings (known as “Shepard documents”) to find out if the state court

convicted the defendant of the generic offense. See Shepard v. United States, 544

U.S. 13 (2005). Even though the modified categorical approach lets courts look at

facts for that limited purpose, it “retains the categorical approach’s central feature:

a focus on the elements, rather than the facts, of a crime. And it preserves the

categorical approach’s basic method: comparing those elements with the generic

offense’s.” Descamps, 133 S. Ct. at 2285. “Our inquiry, in this regard, is always

about what elements the defendant was convicted of, not the facts that led to that

conviction.” United States v. Lockett, 810 F.3d 1262, 1266 (11th Cir. 2016).

      Nine years ago, the Supreme Court held that Florida burglary is not the

enumerated crime of burglary in ACCA because Florida allows a burglary

conviction even when a defendant burglarizes the curtilage of a home. See James

v. United States, 550 U.S. 192, 212 (2007) (“[T]he inclusion of curtilage takes


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Florida’s underlying offense of burglary outside the definition of ‘generic

burglary’ set forth in Taylor, which requires an unlawful entry into, or remaining

in, ‘a building or other structure.’” (internal citations omitted)). 2 Nonetheless, just

a few months before the Descamps decision, this Court held on plain-error review

that, “[a]lthough Florida’s burglary statute facially encompasses both generic and

non-generic burglaries, a conviction under the statute can still qualify as a generic

burglary if the charging documents or other Shepard-approved sources show that

the offense involved unlawful entry into a building or structure.” United States v.

Weeks, 711 F.3d 1255, 1262–63 (11th Cir. 2013).

       Weeks reached this conclusion because this Court’s pre-Descamps precedent

assumed that the modified categorical approach applied to any non-generic

burglary statute. See id.; see also Howard, 742 F.3d at 1344 (explaining that this

Court’s “pre-Descamps decisions . . . assumed that the modified categorical

approach could be applied to all non-generic statutes”). “The Descamps decision

dictates discarding that assumption.” Howard, 742 F.3d at 1344. After Descamps,

“the modified categorical approach can be applied only when dealing with a

divisible statute: a statute that ‘sets out one or more elements of the offense in the

alternative.’” Id. (quoting Descamps, 133 S. Ct. at 2281–82).

       2
         James went on to hold that a violation of this Florida statute met ACCA’s “residual
clause” definition of “violent felony.” 550 U.S. at 209. The Supreme Court overruled that
aspect of James in Johnson. See supra Part I.


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      This Court’s Lockett decision later clarified when and how a state statute

“sets out one or more elements of the offense in the alternative”; that is, whether it

is divisible. Descamps, 133 S. Ct. at 2281. Lockett explained that before applying

the modified categorical approach, a sentencing court must “determine whether a

state statute ‘lists multiple, alternative elements, and so effectively creates several

different crimes.’” 810 F.3d at 1266 (quoting Descamps, 133 S. Ct. at 2285). “If

the statute does this, then [the statute is divisible and] Shepard documents will tell

us which of these ‘several different crimes’ a defendant was convicted of. If it

does not, then [the statute is indivisible and] no conviction under the statute can be

assumed to be generic.” Id.

      Lockett held that South Carolina’s burglary statute did not create “several

different crimes” and therefore was indivisible because jurors were only required

to find that a defendant entered a “dwelling.” Id. at 1269–70. We recognized that

the statute also defined the word “dwelling” with a finite list of places separated by

the word “or.” Id. We explained that a sentencing court’s “inquiry can’t end with

simply looking at whether the statute is written disjunctively (with the word “or”).

The text of a statute won’t always tell us if a statute is listing alternative means or

definitions, rather than alternative elements.” Id. at 1268. Instead, “a jury must be

required to find one of the alternative elements beyond a reasonable doubt, rather

than just convict under a statute that happens to list alternative definitions or


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alternative means for the same crime without requiring jurors to pick which one

applies.” Id. at 1267.

      Five months after we decided Lockett, the Supreme Court in Mathis also

addressed a statute that “enumerates various factual means of committing a single

element.” 136 S. Ct. at 2249. The Court in Mathis explained that this “kind of list

merely specifies diverse means of satisfying a single element of a single crime”

and that “a jury need not find (or a defendant admit) any particular item” in order

for a burglary conviction to be valid. Id. And the Court held that the modified

categorical approach does not apply “when a statute happens to list possible

alternative means of commission: Whether or not made explicit, they remain what

they ever were—just the facts.” Id. at 2557. In light of the Supreme Court’s

decision in Mathis, the government in this case has expressed the view that the

Florida burglary statute’s definition of “structure” is indivisible, and the unlawful

entry into the curtilage of a building is merely a possible alternative means of

commission of the offense. Thus, the government agrees with Mr. Esprit that his

Florida burglary convictions cannot be used to enhance his sentence under ACCA.

   B. Application of This Framework to Mr. Esprit’s Florida Burglary
      Convictions

      Mr. Esprit was convicted of violating a statute that defines burglary as

“[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an

offense therein.” Fla. Stat. § 810.02(1)(b)(1). Again, the statute defines

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“dwelling” as:

       a building or conveyance of any kind, including any attached porch,
       whether such building or conveyance is temporary or permanent,
       mobile or immobile, which has a roof over it and is designed to be
       occupied by people lodging therein at night, together with the
       curtilage thereof.

Id. § 810.011(2). Likewise, the Florida statute defines “structure” to include the

curtilage of a building. Id. § 810.011(1). We hold that a conviction for burglary

under Florida law cannot serve as a predicate “violent felony” under ACCA

because the Florida burglary statute is not divisible, and that means that we cannot

use the modified categorical approach.

       Because Florida law defines both a dwelling and a structure as “a building

. . . together with the curtilage thereof,” we have explained that “Florida does not

consider burglary of the curtilage of a structure to be a crime distinct from burglary

of that structure.” United States v. Matthews, 466 F.3d 1271, 1274 (11th Cir.

2006). 3 The Florida Supreme Court has made this same point:

           There is no crime denominated burglary of a curtilage; the curtilage
           is not a separate location wherein a burglary can occur. Rather, it is
           an integral part of the structure or dwelling that it surrounds. Entry
           into the curtilage is, for the purposes of the burglary statute, entry
           into the structure or dwelling.

Baker v. State, 636 So. 2d 1342, 1344 (Fla. 1994).

       3
         Matthews held that a conviction for third degree burglary under Florida law qualified as
a violent felony under ACCA’s residual clause. 466 F.3d at 1275. That portion of Matthews has
been overruled by the Supreme Court’s decision in Johnson. See supra Part I.


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       Baker confirms that Florida jurors never were required to decide if Mr.

Esprit committed burglary by entering a building rather than just its curtilage.4 Or,

as the Florida Supreme Court put it, “for the purposes of the burglary statute, it

would not matter whether [Mr. Esprit] was in [a victim]’s secluded back yard or

back bedroom; in either circumstance, the courts must consider him to have been

within [a] dwelling.” Id. For that reason,

       [t]he modified approach thus has no role to play in this case. The
       dispute here does not concern any list of alternative elements. Rather,
       it involves a simple discrepancy between generic burglary and the
       crime established in [Fla. Stat. § 810.02(1)(b)(1)]. The former requires
       an unlawful entry [into a building or structure]. The latter does not.

Descamps, 133 S. Ct. at 2285 (internal citation omitted). Florida’s burglary statute

creates a single indivisible crime that includes non-generic burglary. That means

“no conviction under the statute can be assumed to be generic.” Lockett, 810 F.3d

at 1266. And if no conviction under Florida’s burglary statute qualifies as generic

burglary, then no such conviction can serve as an ACCA predicate offense. Thus,

as a categorical matter, a Florida burglary conviction is not a “violent felony”


       4
           See Lockett, 810 F.3d at 1271 (“What elements [state] prosecutors are required to prove
for a burglary conviction is a question of [state] law. And so we look to the state’s courts to
answer this question.”); see also Howard, 742 F.3d at 1346 (“Sentencing courts conducting
divisibility analysis in this circuit are bound to follow any state court decisions that define or
interpret the statute’s substantive elements because state law is what the state supreme court says
it is.”); United States v. Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012) (“[I]n determining
whether a conviction . . . under [Florida law] is a ‘crime of violence’ for sentencing enhancement
purposes, we are bound by Florida courts’ determination and construction of the substantive
elements of that state offense.”).


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under ACCA.

                               III.   CONCLUSION

      Mr. Esprit’s ACCA-enhanced sentence cannot stand in light of our holding

today. Accordingly, we vacate his sentence and remand to the district court with

instructions that he be resentenced without the ACCA enhancement.

      VACATED AND REMANDED.




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