                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-2576
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Randy Patrie

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa, Waterloo
                                 ____________

                             Submitted: April 17, 2015
                               Filed: July 27, 2015
                                  ____________

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
                              ____________

SHEPHERD, Circuit Judge.

       Randy Patrie pled guilty to being a felon in possession of firearms and to
possession of sawed-off shotguns. At sentencing, the district court1 found (1) that
Patrie had committed first degree murder and thus that it would be appropriate to

      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
apply the cross reference for murder, and (2) that Patrie was an armed career criminal.
Based on these findings, the district court imposed a sentence of life imprisonment.
Patrie now appeals from his sentence, challenging both the cross reference and armed
career criminal determinations. Having jurisdiction under 28 U.S.C. § 1291, we
affirm.

                                          I.

       In July 2013, witnesses reported to law enforcement that they had observed
Randy Patrie burglarizing his stepmother’s house. Acting on this information,
officers executed a search warrant on Patrie’s residence and seized a number of items,
including several firearms. One of the firearms matched a gun stolen from Carl
Kenneth Gallmeyer, a 70-year-old retiree who was tragically murdered in September
2012 when a burglar broke into his home and shot him with a .410 gauge shotgun as
he lay in bed. After learning of the connection to Gallmeyer, officers executed a
second search warrant on Patrie’s residence. During the two searches, officers seized
over two dozen firearms from Patrie. These included two sawed-off shotguns, one
a .410 gauge. Patrie later pled guilty to being a felon in possession of firearms, in
violation of 18 U.S.C. § 922(g), and to possession of sawed-off shotguns, in violation
of 26 U.S.C. § 5861(d). The .410 gauge sawed-off shotgun was included in the
possession of sawed-off shotguns charge but not in the felon in possession charge.

       At sentencing, the district court found that Patrie murdered Gallmeyer and that
it would be appropriate to apply the cross reference for first degree murder. See
United States Sentencing Commission, Guidelines Manual, § 2K2.1(c). The district
court then found that Patrie was an armed career criminal based on his one prior
conviction for a controlled substance offense and his two prior convictions for second
degree burglary. See 18 U.S.C. § 924(e). The combination of the cross reference and
Patrie’s status as an armed career criminal produced a Guidelines range of life
imprisonment. The district court imposed a sentence of life imprisonment on the

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felon in possession charge and a sentence of 120 months imprisonment on the
possession of sawed-off shotguns charge, to be served concurrently. Patrie appeals,
arguing the district court (1) erred in applying the cross reference for murder to his
felon in possession charge, (2) erred in determining he was an armed career criminal,
and (3) engaged in impermissible judicial factfinding when determining that he was
an armed career criminal.

                                          II.

                                          A.

       We first consider Patrie’s argument that the district court erred in applying the
cross reference for murder. “We review de novo the district court’s application of the
Guidelines, and we review for clear error the district court’s factual findings.” United
States v. Tunley, 664 F.3d 1260, 1262 (8th Cir. 2012) (internal quotation marks
omitted). The relevant portion of the cross reference instructs that “[i]f the defendant
used or possessed any firearm or ammunition in connection with the commission or
attempted commission of another offense,” and “if death resulted” from that other
offense, then the court should apply “the most analogous offense guideline from
Chapter Two, Part A, Subpart 1 (Homicide).” USSG § 2K2.1(c). Here, the district
court conducted a sentencing hearing at which it heard testimony from several
witnesses and received a number of exhibits. After the hearing, the district court
found, by a preponderance of the evidence, that during a burglary of Gallmeyer’s
home Patrie killed Gallmeyer with the .410 gauge sawed-off shotgun found in Patrie’s
residence. The district court determined that the most analogous offense for this
killing was first degree murder. See USSG § 2A1.1.

       On appeal, Patrie does not challenge either the district court’s determination
that he killed Gallmeyer with the .410 gauge sawed-off shotgun or its determination
that the most analogous offense for this killing was first degree murder. Instead,

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Patrie argues that the district court erred in applying the cross reference to his felon
in possession charge because he did not use any of the guns listed in that charge “in
connection with” the Gallmeyer burglary. In other words, Patrie suggests the cross
reference applies only where a defendant committed another crime with or while
possessing a firearm for which he was charged. We disagree.

        We rejected a similar argument in United States v. Mann, 315 F.3d 1054 (8th
Cir. 2003). Mann involved an application of the former section 2K2.1(b)(5), which
provided for an enhancement “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense.” USSG § 2K2.1(b)(5) (2002).
Because this language mirrors the relevant language in the cross reference, we rely
on cases interpreting the former section 2K2.1(b)(5) when interpreting the cross
reference here. See United States v. Cole, 525 F.3d 656, 659 (8th Cir. 2008)
(applying holding in Mann to similar language in section 2K2.1(b)(4) because “[i]t
is a principle of statutory interpretation that identical phrases in a statute, particularly
when they occur in close proximity, are ordinarily given an identical meaning”).

       In Mann, the district court applied the section 2K2.1(b)(5) enhancement where
the defendant pled guilty to being a felon in possession of one firearm and committed
another felony with a second firearm. See 315 F.3d at 1055. Rejecting the
defendant’s argument that “‘any firearm’ must be read to mean one of the firearms for
which [the defendant] was charged with being a felon in possession of a firearm,” we
held that “the use of the term ‘any firearm or ammunition’ in § 2K2.1(b)(5) indicates
that this guideline applies to any firearm and not merely to a particular firearm upon
which the defendant’s felon-in-possession conviction is based.” Id. at 1055-56.
Applying the reasoning from Mann to the facts of this case, we find the district court
did not err in applying the cross reference to Patrie’s felon in possession charge where
it found Patrie murdered Gallmeyer with a firearm not included in that charge. Cf.
United States v. Rashaw, 170 F. App’x 986, 987 (8th Cir. 2006) (unpublished) (per



                                            -4-
curiam) (“The § 2K2.1 [cross reference] for using a firearm in another felony need not
be the same firearm involved in the offense of conviction . . . .”).

       Patrie suggests Mann is no longer good law because the Sentencing
Commission added an application note in 2006 explaining that the cross reference
applies where a defendant, “during the course of a burglary, finds and takes a firearm,
even if the defendant did not engage in any other conduct with that firearm during the
course of the burglary.” USSG § 2K2.1, comment. (n.14). The application note,
however, merely explains one situation in which the cross reference would apply and
in no way limits the cross reference to applying in that situation only. Thus the
application note has no impact on our holding in Mann and does not change the fact
that, by its plain terms, the cross reference applies “[i]f the defendant used or
possessed any firearm or ammunition in connection with the commission or attempted
commission of another offense.” USSG § 2K2.1(c)(1) (emphasis added); see United
States v. Anton, 380 F.3d 333, 335 (8th Cir. 2004) (“When construing the Guidelines,
we look first to the plain language, and where that is unambiguous we need look no
further.” (internal quotation marks omitted)). Moreover, we have continued to apply
Mann even after the addition of the application note. See United States v. Grays, 638
F.3d 569, 571 (8th Cir. 2011) (citing Mann, 315 F.3d at 1056) (“[T]here is no
requirement that the firearm for which an enhancement is imposed be the same as the
one involved in the count to which the defendant pled guilty.”).

                                          B.

       We next address Patrie’s argument that the district court erred in determining
that he is an armed career criminal. Under 18 U.S.C. § 924(e), a defendant is deemed
an armed career criminal and is subject to a minimum sentence of 15 years
imprisonment and a maximum sentence of life imprisonment if he violates section
922(g) “and has three previous convictions by any court . . . for a violent felony or a
serious drug offense, or both.” Patrie does not contest that his prior controlled

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substance offense counts as one predicate felony, but he argues the district court erred
in finding that his two convictions for second degree burglary qualify as predicate
felonies. We review de novo “whether a prior conviction is a predicate offense under
[section 924(e)].” United States v. Melbie, 751 F.3d 586, 588 (8th Cir. 2014)
(internal quotation marks omitted).

       The term “violent felony” includes “any crime punishable by imprisonment for
a term exceeding one year . . . that . . . is burglary . . . .” 18 U.S.C. § 924(e)(2)(B).
To determine whether a defendant’s prior burglary conviction qualifies as a
“burglary” under section 924(e), we apply the “categorical approach” and “compare
the elements of the statute forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime—i.e., the offense as commonly understood. The prior
conviction qualifies as a [burglary under section 924(e)] only if the [convicting]
statute’s elements are the same as, or narrower than, those of the generic offense.”
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

       The comparison between the elements of the statute of conviction and the
elements of the generic offense is straightforward for “an ‘indivisible’ statute—i.e.,
one not containing alternative elements.” Id. “However, where a statute of
conviction sets out one or more elements of the offense in the alternative, the statute
is considered ‘divisible’ for [section 924(e)] purposes.” United States v. Tucker, 740
F.3d 1177, 1179 (8th Cir. 2014) (en banc). “If one alternative in a divisible statute
qualifies as a violent felony, but another does not, we apply the ‘modified categorical
approach’ to determine under which portion of the statute the defendant was
convicted.” Id. at 1179-80. “[T]he modified categorical approach permits sentencing
courts to consult a limited class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis of the defendant’s prior
conviction.” Descamps, 133 S. Ct. at 2281.




                                          -6-
       The Supreme Court has stated that the elements of the generic burglary offense
are “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); see also Shepard v. United States, 544 U.S. 13, 15-16 (2005) (“[Section
924(e)] makes burglary a violent felony only if committed in a building or enclosed
space (‘generic burglary’), not in a boat or motor vehicle.”). Patrie was convicted of
burglary in Iowa, which provides the following definition of burglary:

      Any person, having the intent to commit a felony, assault or theft
      therein, who, having no right, license or privilege to do so, enters an
      occupied structure, such occupied structure not being open to the public,
      or who remains therein after it is closed to the public or after the
      person’s right, license or privilege to be there has expired, or any person
      having such intent who breaks an occupied structure, commits burglary.

Iowa Code § 713.1. In a separate definitional section, the Iowa Code further defines
“occupied structure” as:

      [A]ny building, structure, appurtenances to buildings and structures,
      land, water or air vehicle, or similar place adapted for overnight
      accommodation of persons, or occupied by persons for the purpose of
      carrying on business or other activity therein, or for the storage or
      safekeeping of anything of value. Such a structure is an “occupied
      structure” whether or not a person is actually present.

Id. § 702.12.

       Patrie first contends that the elements of Iowa’s burglary statute are broader
than the elements of the generic burglary offense because the Iowa statute “covers
situations where individuals had previously lawfully entered into and remained [in
an occupied structure] after it was closed to the public.” Appellant Br. 17. This
argument fails because the generic burglary offense clearly covers “an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to

                                         -7-
commit a crime.” Taylor, 495 U.S. at 598 (emphasis added); see also id. at 592-94
(declining to use the definition of common law burglary, which required a physical
breaking, as the definition of generic burglary).

       Patrie also suggests that Iowa’s burglary statute is indivisible as to the term
“occupied structure” and thus that the district court committed error in applying the
modified categorical approach as opposed to the categorical approach. Patrie
concedes that the Iowa Code contains a definitional provision that defines “occupied
structure” in the alternative, but he argues that courts cannot look to definitional
provisions when determining whether a statute of conviction is divisible.

       Patrie’s argument is foreclosed by our recent opinion in United States v.
Mathis, 786 F.3d 1068 (8th Cir. 2015). There, we reasoned that when assessing a
statute’s divisibility, “a court may consider a statute or subsection, outside of the
convicting statute, that defines a term in the convicting statute.” Id. at 1075 n.7. We
held that Iowa’s burglary statute “exhibits the exact type of divisibility contemplated”
by the Supreme Court and thus that the statute was properly subject to the modified
categorical approach. Id. at 1074. Because Patrie argues only that the modified
categorical approach does not apply to the Iowa burglary statute—and not that the
district court committed any error in its application of the modified categorical
approach—we find that the district court did not err in concluding under the modified
categorical approach that Patrie’s burglary convictions could serve as armed career
criminal predicate convictions.

                                          C.

      Finally, we consider Patrie’s argument that the district court violated his Sixth
Amendment right to trial by a jury when it determined he was an armed career
criminal. We review this claim de novo. United States v. Evans, 738 F.3d 935, 936



                                          -8-
(8th Cir. 2014) (per curiam). Patrie relies on Apprendi v. New Jersey, where the
Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490
(2000). Notwithstanding that Apprendi’s holding explicitly excludes “the fact of a
prior conviction,” Patrie suggests the district court conducted an impermissible
“factual investigation” when it reviewed the trial information and judgment relating
to his prior burglary convictions while applying the modified categorical approach.

       Patrie acknowledges his argument is contrary to our circuit precedent. See
Evans, 738 F.3d at 937 (“‘[T]he government is not required to charge the fact of a
prior conviction or prove it to a jury.’” (quoting United States v. Ramsey, 498 F.
App’x 653, 654 (8th Cir. 2013) (per curiam) (unpublished))); see also United States
v. Abrahamson, 731 F.3d 751, 752 (8th Cir. 2013) (per curiam) (“[T]he Court in
[Alleyne v. United States, 133 S. Ct. 2151 (2013),] left intact the rule that
enhancements based on the fact of a prior conviction are an exception to the general
rule that facts increasing the prescribed range of penalties must be presented to a
jury.”). But he contends Evans was wrongly decided. However, “[o]ur long standing
rule is that one panel may not overrule an earlier decision by another.” Jackson v.
Ault, 452 F.3d 734, 736 (8th Cir. 2006). While there is an exception to this rule
where “the earlier panel decision is cast into doubt by a decision of the Supreme
Court,” United States v. Williams, 537 F.3d 969, 975 (8th Cir. 2008) (emphasis
removed) (internal quotation marks omitted), we are not aware of any intervening
Supreme Court case that would cause us to revisit Evans. It follows that Patrie’s
Sixth Amendment argument cannot succeed.2


      2
        Because we reject all of Patrie’s arguments, we need not consider the
government’s contention that any error was harmless because the district court issued
an alternative life sentence based on the factors in 18 U.S.C. § 3553(a).


                                         -9-
                                 III.

For the foregoing reasons, we affirm Patrie’s sentence.
                ______________________________




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