                                PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 14-4766


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

GREGORY MCLEOD,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.    Mary G. Lewis, District Judge.
(4:13-cr-01013-MGL-1)


Argued:   September 17, 2015                Decided:   October 30, 2015


Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by published
opinion. Judge Niemeyer wrote the opinion, in which Judge Shedd
and Judge Keenan joined.


ARGUED: Michael A. Meetze, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Florence, South Carolina, for Appellant.     Benjamin
Neale Garner, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.     ON BRIEF: William N. Nettles,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
NIEMEYER, Circuit Judge:

       After      Gregory     McLeod   pleaded       guilty     to    possession         of   a

firearm      by    a     convicted     felon,    in     violation         of     18   U.S.C.

§ 922(g)(1), the district court sentenced him to 188 months’

imprisonment, having applied a sentencing enhancement under the

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

mandates a 15-year minimum sentence for defendants with three

previous “violent felony” convictions, including convictions for

burglary.         To satisfy the predicate convictions requirement of

ACCA, the district court relied on McLeod’s five convictions in

1998   for     committing       second-degree         burglary       in   Dillon,        South

Carolina, in violation of South Carolina Code § 16-11-312.                                The

indictment in each of those cases charged McLeod with breaking

and entering a commercial building with the intent to commit a

crime.

       On appeal, McLeod contends that the district court erred in

applying     the       ACCA   enhancement       in    two   respects.            First,       he

contends that because the predicate offenses were not charged in

the indictment in this case, his conviction for simply violating

§ 922(g)(1) did not support the sentence imposed, violating his

Fifth and Sixth Amendment rights.                    Second, he contends that his

1998 South Carolina convictions for second-degree burglary did

not    qualify      as     “violent     felonies”       under    ACCA          because    the

statutory elements of those convictions, as well as the relevant

                                            2
state court records, did not limit those convictions to generic

burglary,    which      is   breaking     and      entering      into    a    building    or

structure,       see    Taylor    v.    United      States,      495    U.S.      575,   599

(1990),    but    rather     allowed     the      possibility        that    he   had    been

convicted of breaking and entering into a vehicle, watercraft,

or aircraft.           Because a conviction for breaking and entering

into a vehicle, watercraft, or aircraft would not be considered

generic burglary, it would not qualify as a predicate offense

under ACCA.

     We conclude that McLeod’s first argument lacks merit, as it

is foreclosed by the Supreme Court’s decision in Almendarez-

Torres v. United States, 523 U.S. 224 (1998).                           But we conclude

that his second argument does have merit, as the evidence that

the government offered with respect to at least four of his five

burglary     convictions         did    not       show    that   they        qualified    as

“violent felonies” under ACCA because the government was unable

to   demonstrate         that     the    object          of   each      conviction       was

necessarily a building or structure, as distinct from a vehicle,

boat, or airplane.           Accordingly, we affirm his conviction but

vacate his sentence and remand for resentencing.


                                              I

     In May 2014, McLeod pleaded guilty to unlawfully possessing

a firearm, in violation of 18 U.S.C. § 922(g)(1).                             Because the


                                              3
presentence       report       showed     that     McLeod       had      five   previous

convictions for second-degree burglary, in violation of South

Carolina    Code    §    16-11-312,       the    district       court     concluded        at

sentencing that those convictions were for “violent felonies”

and that McLeod therefore qualified as an armed career criminal,

requiring the court to impose a sentence of at least 15 years’

imprisonment.        18 U.S.C. § 924(e).              With respect to four of

those   convictions,          the   underlying     indictments        charged      McLeod

with    willfully       and   unlawfully        entering    a    “building”      in    the

nighttime    --    namely,      the     Cottingham    ABC       Store,    the   Rippetoe

Canvas Company, the Dillon Company, and Walmart, respectively --

with the intent to commit a crime.                 The parties agree that those

indictments       charged      McLeod    with    second-degree          burglary      of    a

building, in violation of South Carolina Code § 16-11-312(B).

       During the sentencing hearing, McLeod’s attorney stated to

the court:

       Judge, we don’t have any objections to the guideline
       calculations like in the [presentence] report, but
       there are a couple things that Mr. McLeod wanted me to
       raise.

       He wanted me to object to say that the Government
       should have -- should have been required to name his
       predicate offenses in the indictment, and he wanted me
       to object to say that South Carolina burglary second
       offenses shouldn’t count as violent felonies [under
       ACCA].

       And I’ve explained to him that that is not the law
       right now as to both of those issues. But he wanted
       me to make those with the understanding that Your

                                            4
        Honor would overrule those today, but he wanted me to
        pursue those on appeal to see if any court would
        revisit these issues and maybe make a change in the
        law.

As      anticipated,         the      district          court     overruled     McLeod’s

objections, applied the ACCA enhancement, and sentenced him to

188 months’ imprisonment.

        On appeal, McLeod argues the two issues he preserved:                          (1)

that the district court should not have been able to enhance his

sentence under ACCA because the government did not include his

predicate convictions in the indictment and (2) that his 1998

South    Carolina      convictions         for    second-degree      burglary     do    not

qualify    as       “violent    felonies”         for    ACCA    sentence-enhancement

purposes.


                                             II

        McLeod      contends       first   that     the     government     should      have

included    the      prior     convictions        that    were    the   basis    for    his

sentencing enhancement in the indictment and proved them to a

jury and that the government’s failure to do so violated his

Fifth    and     Sixth   Amendment         rights.         He    recognizes     that   his

argument       is    foreclosed       by   the     Supreme       Court’s   decision     in

Almendarez-Torres, but he argues that that case was “incorrectly

decided.”        He also recognizes that we are bound by Almendarez-

Torres, raising the argument only to preserve it for further

review by the Supreme Court.

                                             5
      Because    Almendarez-Torres              is   still     controlling     law,    we

affirm the district court’s rejection of this argument.


                                            III

      McLeod    also       contends    that       the    district   court      erred   in

relying on his 1998 South Carolina convictions for second-degree

burglary to enhance his sentence under ACCA, maintaining that

the convictions do not qualify as predicate convictions under

ACCA.     He argues that the elements of the offense for which he

was     convicted    in     South     Carolina          are   broader   than    generic

burglary because the statute prohibits not only the breaking and

entering of a building or structure but also of other “edifices

and things.”        As he points out more specifically, the statute of

conviction also prohibits breaking and entering into vehicles,

boats, or planes.            He argues accordingly that the convictions

cannot serve as predicate burglary convictions, which must be

limited to breaking and entering into a building or structure.

See Taylor, 495 U.S. at 599.

      The    government          contends     that       McLeod’s   previous      South

Carolina convictions qualify as predicate offenses under ACCA

because the relevant indictments show that his convictions were

for     “burglary     of     a    building,”         which    matches   the     generic

definition of burglary announced by the Supreme Court in Taylor.

Applying the modified categorical approach to analyze McLeod’s


                                            6
predicate     offenses,      as     authorized    by    Taylor    and    Descamps    v.

United States, 133 S. Ct. 2276, 2283-85 (2013), the government

argues that “[e]ach of the state indictments demonstrates that

the   State       charged   McLeod      under   the    building   section    of     the

second-degree burglary statute [§ 16-11-312(B)], conspicuously

noting      the     particular       building    burglarized       and     that     the

burglaries occurred during the nighttime.”

      As applicable to the issues in this case, ACCA provides

that any person convicted under 18 U.S.C. § 922(g) who “has

three previous convictions . . . for a violent felony . . .

shall be . . . imprisoned not less than fifteen years.”                              18

U.S.C.   §    924(e)(1).          And   a   “violent    felony”    is    defined     to

include the crime of burglary when punishable by imprisonment

for a term exceeding one year.              Id. § 924(e)(2)(B)(ii).

      The     Supreme       Court    has    concluded     that,     when    Congress

included burglary as a predicate offense in ACCA, it intended to

refer to a generic definition of burglary.                  Taylor, 495 U.S. at

589, 599.         The Court rejected arguments that sentencing courts

could use any state definition of burglary, noting the problems

that would result from wide variations in the definition.                           Id.

at 590-91.        It explained that Congress intended to use “uniform,

categorical definitions to capture all offenses of a certain

level of seriousness that involve violence or an inherent risk

thereof.”      Id. at 590 (emphasis added).              Addressing burglary in

                                            7
particular,    the    Taylor   Court    defined      generic        burglary   as    an

“unlawful     or   unprivileged    entry         into,   or    remaining       in,   a

building or structure, with intent to commit a crime.”                         Id. at

599.

       Because Congress intended for courts to use a categorical

approach when determining whether a prior conviction was for

generic burglary, id. at 588-89, the Taylor Court instructed

that, in following that approach, a sentencing court may rely

only on the statutory elements of the burglary conviction and

the fact of conviction and may not rely on the particular facts

underlying the conviction, see id. at 600-02; see also Descamps,

133 S. Ct. at 2283.         When, however, a statute defines burglary

with alternative elements such that one alternative corresponds

to generic burglary and another does not, a sentencing court may

apply the “modified categorical approach,” which allows it to

examine certain court records or documents to determine whether

the    defendant     was    convicted       of     generic      burglary       or    an

alternative    form    of    burglary   that       would      not    qualify    as   a

predicate offense.         See Descamps, 133 S. Ct. at 2281; Nijhawan

v. Holder, 557 U.S. 29, 35 (2009); Shepard v. United States, 544

U.S. 13, 16 (2005).          Those documents are generally limited to

the “charging document, written plea agreement, transcript of

plea colloquy, and any explicit factual finding by the trial



                                        8
judge to which the defendant assented.”                               Shepard, 544 U.S. at

16.

      In     Nijhawan,      the     Court          addressed          a     burglary       statute,

similar     to     the    South     Carolina         statute          in     this       case,    that

criminalized “Breaking and Entering at Night” in any one of four

locations:        a “building, ship, vessel or vehicle.”                             557 U.S. at

35.     It “recognized that when a statute so ‘refer[s] to several

different        crimes,’     not       all     of       which     qualify          as    an     ACCA

predicate, a court must determine which crime formed the basis

of the defendant’s conviction.”                      Descamps, 133 S. Ct. at 2284

(quoting Nijhawan, 557 U.S. at 35).                           Similarly, in Johnson v.

United States, the Court reaffirmed that, “[w]hen the law under

which      the    defendant       has     been       convicted            contains        statutory

phrases that cover several different generic crimes, . . . the

‘modified        categorical       approach’         .    .    .      permits       a    court     to

determine        which    statutory           phrase       was        the        basis    for     the

conviction by consulting the trial record -- including charging

documents,        plea    agreements,          transcripts            of     plea       colloquies,

findings of fact and conclusions of law from a bench trial, and

jury instructions and verdict forms.”                         559 U.S. 133, 144 (2010)

(quoting     Nijhawan,       557    U.S.       at    41    (internal             quotation      marks

omitted)).        As the Descamps Court explained, “the job . . . of

the   modified      approach        [is]      to     identify,            from    among    several

alternatives,       the     crime    of       conviction         so       that    the    court    can

                                                9
compare    it   to    the    generic    offense.”          133     S.   Ct.   at     2285

(emphasis added).

     In     this     case,    McLeod    was     charged          with   second-degree

burglary of a building under South Carolina Code § 16-11-312(B),

which provides in relevant part:

     (B)    A person is guilty of burglary in the second
            degree if the person enters a building without
            consent and with intent to commit a crime
            therein, and . . . :

            (3)      The entering      or     remaining      occurs      in   the
                     nighttime.

(Emphasis    added).         The   sentence    for    a    violation     of   § 16-11-

312(B) exceeds one year.            S.C. Code Ann. § 16-11-312(C). ∗                While

this statutory language appears at first glance to parrot the

language of generic burglary, as defined in Taylor, the statute

defines the term “building” to include “any structure, vehicle,

watercraft, or aircraft,” id. § 16-11-310(1), providing elements

alternative     to    generic      burglary.     In       this    circumstance,      the

district court was allowed to employ the modified categorical

approach, which allowed it to consider the charging document to

identify the crime of conviction.               See Descamps, 133 S. Ct. at

2284; Nijhawan, 557 U.S. at 35; Taylor, 495 U.S. at 602.



     ∗ South Carolina Code § 16-11-312(C) was amended in 2010,
but the version of the statute in effect at the time of McLeod’s
offenses authorized a term of imprisonment exceeding one year
for second-degree burglary.


                                         10
     In     this      case,       the    government         claims    that     because    the

charging document excluded vehicles, watercraft, or aircraft and

noted that McLeod was charged only with entering a building,

specifically         naming      the     building      in    each    case,    the    district

court did not err in considering McLeod’s second-degree burglary

convictions as predicate offenses under ACCA.

     The problem with the government’s position, however, arises

from evidence revealed by the parties’ second supplemental joint

appendix,      which       they     filed       with     the   court     long    after    the

briefing       in     this    case       had     been       completed.        That    second

supplemental         joint       appendix       contained      McLeod’s       plea   to   and

sentencing          for    the     four        charged      burglaries       that    we   are

considering,         showing      that     McLeod        did   not    plead     guilty,    as

charged, to second-degree burglary of a building under § 16-11-

312(B), which is a crime characterized by South Carolina law as

“violent.”          See S.C. Code Ann. § 16-1-60.                    Instead, he pleaded

guilty    to    “nonviolent”            second-degree        burglary.        Although    the

plea and sentencing record do not cite the specific statutory

subsection that McLeod pleaded guilty to violating, only § 16-

11-312(A) (second-degree burglary of a “dwelling”), not § 16-11-

312(B)      (second-degree               burglary         of     a     “building”),        is

characterized         as     “nonviolent”         under      South   Carolina’s      second-

degree     burglary        law.          See     id.     § 16-1-70.          Apparently    by

agreement, McLeod was allowed to plead guilty to the different

                                                 11
crime of nonviolent burglary, which could benefit him in the

future with respect to certain sentencings.                             See, e.g., S.C.

Code Ann. § 16-3-20(C)(b)(1) (requiring judges in capital cases

to   instruct    as     to       the    mitigating         circumstance       that    “[t]he

defendant      has     no        significant         history       of      prior     criminal

conviction      involving         the     use       of     violence     against      another

person”); State v. Rogers, 527 S.E.2d 101, 103-04 (S.C. 2000).

Because McLeod pleaded guilty to second-degree burglary of a

dwelling under § 16-11-312(A) and not the crime charged in the

indictment      under        §     16-11-312(B),            the     indictment       becomes

irrelevant for determining the crime of conviction.

         The statute under which McLeod pleaded guilty, § 16-11-

312(A), provides:

         A person is guilty of burglary in the second degree if
         the person enters a dwelling without consent and with
         intent to commit a crime therein.

(Emphasis added).           Again, the sentence for a violation of § 16-

11-312(A) exceeds one year.                   See S.C. Code Ann. § 16-11-312(C).

The word “dwelling” is defined to include “the living quarters

of   a    building    which       is    used    or   normally       used    for    sleeping,

living, or lodging by a person.”                         Id. § 16-11-310(2) (emphasis

added).      And “building” is defined to include “any structure,

vehicle,      watercraft,          or    aircraft.”               Id.   §    16-11-310(1).

Consequently,        with    his       plea    agreement,         McLeod    was    convicted

under South Carolina law of burglarizing a “dwelling” that could

                                               12
have been “any structure, vehicle, watercraft, or aircraft,” so

long    as    a    person       “used       or    normally      used”        the    location      for

“sleeping, living, or lodging.”

       While the modified categorical approach again would allow

the    district         court    to    determine          whether       McLeod’s         plea   under

§ 16-11-312(A)           involved          generic      or    nongeneric           burglary,      the

government         presented          no        “charging      document,           written       plea

agreement, transcript of plea colloquy, or any explicit factual

finding by the trial court to which the defendant assented” to

show    that       the     crime       of        conviction       was     generic         burglary.

Shepard, 544 U.S. at 16.                    The relevant documents indicate only

that    McLeod          pleaded        guilty        to      “nonviolent”           second-degree

burglary,         which,       under       South     Carolina       law,       can       only    mean

burglary of a “dwelling,” as prohibited by § 16-11-312(A).                                        But

the    plea       did    not    incorporate          any     facts,      and       the    buildings

described in the indictments relate to the different offense

under    § 16-11-312(B).                   Because      we    cannot      determine         whether

McLeod pleaded guilty to generic burglary with respect to four

of his 1998 burglary convictions, they cannot serve as predicate

offenses under ACCA.

       Although         the     government         devoted        its    brief       to    McLeod’s

purported         violations       of       §    16-11-312(B),          as    charged       in    the

indictments, it notes in a footnote to its brief that, even if

McLeod’s      prior       convictions            were     under     §    16-11-312(A),           they

                                                   13
nonetheless       would    be    for     generic         burglary,    because         we    so

concluded in United States v. Wright, 594 F.3d 259, 266 (4th

Cir. 2010).        In Wright, we observed, without more, that the

language of § 16-11-312(A) “tracks the generic definition of

burglary set forth by the Supreme Court in Taylor” and therefore

concluded   that     “South      Carolina’s            burglary   statute    [§       16-11-

312(A)] falls within the ACCA’s list of prior offenses.”                                   Id.

The holding in Wright, however, did not focus on that issue, as

it was not briefed and argued to the court.                         Rather, the issue

in Wright was whether the defendant was carrying a firearm when

he concededly stole firearms from homes.                      See id. at 265 (“[T]he

only    question     is     whether      as        a   definitional    matter         Wright

‘carried’ firearms when he admittedly stole them from homes on

three   separate     occasions”).             In       concluding    that   Wright         did

“carry” firearms          such   that    his       convictions      could   be    used      to

enhance his sentence under ACCA, we began the analysis by simply

observing what was not challenged -- i.e., that the language of

§ 16-11-312(A) tracked the language of generic burglary.                              Id. at

266.     That passing comment, however, never discussed whether

§ 16-11-312(A) was broader than generic burglary in light of the

definition of “dwelling” given by the statute; the defendant

conceded    the     fact     that      “homes”         were   involved.          In    these

circumstances, we conclude that the government can draw little

comfort from our passing observation that the statutory language

                                              14
tracked the definition of burglary as given in Taylor.          See

United States v. Hemingway, 734 F.3d 323, 335 (4th Cir. 2013)

(applying a similar analysis of Wright).

     For the reasons given, we affirm McLeod’s conviction but

vacate his sentence and remand for resentencing.


                                                   IT IS SO ORDERED.




                               15
