                                      PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 18-6041


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

RANDALL CORNETTE,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Martin K. Reidinger, District Judge. (1:08-cr-00056-MR-1; 1:16-cv-
00153-MR)


Argued: March 19, 2019                                          Decided: July 30, 2019


Before AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.


Reversed and remanded by published opinion.     Judge Floyd wrote the opinion in which
Judge Agee and Senior Judge Duncan joined.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Caryn Devins, Research & Writing Specialist, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina,
for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
FLOYD, Circuit Judge:

         Appellant Randall Cornette was sentenced as an armed career criminal because of

certain predicate state convictions that the district court considered to be “violent

felonies” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Cornette

now contends that in light of the Supreme Court’s decision in Johnson v. United States,

135 S. Ct. 2551 (2015), he no longer has the requisite number of predicate offenses for

the ACCA’s sentencing enhancement. In the unique context of the facts presented, we

agree.



                                                  I.

         Cornette pleaded guilty to being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1) pursuant to a written plea agreement with an appeal waiver. Under

18 U.S.C. § 924(a)(2), this conviction carries a maximum prison sentence of ten years.

However, the presentence report (PSR) designated the following predicate “violent

felony” convictions under the ACCA: (1) a 1976 Georgia felony burglary; (2) a 1979

North Carolina breaking-and-entering; (3) a 1986 North Carolina felony possession with

intent to manufacture/sell/deliver schedule II controlled substance and felony sell/deliver

schedule II controlled substance; and (4) a 1989 North Carolina felony breaking and

entering. Based on these convictions, the district court determined that Cornette was an

armed career criminal under the ACCA and sentenced him to 220 months of

imprisonment.




                                              2
       Cornette did not challenge the ACCA enhancement at his initial sentencing,

although he appealed the district court’s judgment. We vacated the sentence because the

district court procedurally erred in failing to adequately explain Cornette’s sentence.

United States v. Cornette, 396 F. App’x 8, 8 (4th Cir. 2010). On remand, Cornette

challenged his ACCA enhancement but withdrew the challenge prior to resentencing. On

resentencing, the district court once again sentenced Cornette to 220 months

imprisonment. A review of that resentencing reveals that the district court did not specify

whether it relied on the ACCA’s enumerated clause, which includes “burglary” as a

qualifying violent felony, or the residual clause in finding that Cornette qualified for the

ACCA enhancement.

       In 2012, Cornette filed his first motion under 28 U.S.C. § 2255 alleging ineffective

assistance of counsel. The district court denied Cornette’s motion and denied a certificate

of appealability. After the Supreme Court’s decision in Johnson ruling the residual

clause of the ACCA void for vagueness, Cornette filed a second § 2255 motion arguing

that he was no longer an armed career criminal. The district court dismissed this as an

unauthorized second and successive § 2255. We granted a motion authorizing Cornette

to file a second and successive § 2255. Cornette then filed a § 2255 motion, once again

arguing that he no longer qualified as an armed career criminal under Johnson because

(1) his 1976 Georgia burglary conviction no longer qualified as a predicate offense for

ACCA purposes under the remaining force or enumerated clauses of ACCA and (2) his

North Carolina controlled substance convictions did not qualify as ACCA predicates in




                                             3
light of our decisions in United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).

         The district court denied Cornette’s motion, this time on the merits, finding that

Cornette’s sentence was proper because his Georgia burglary convictions met the

elements of generic burglary under § 924(e)(2)(B)(ii). This appeal followed.



                                             II.

         Whether an offense constitutes a “violent felony” under the ACCA is a question of

law that we review de novo. See United States v. White, 571 F.3d 365, 367 (4th Cir.

2009).



                                             III.

         We begin with an overview of the post-Johnson ACCA landscape. Second, we

address why the appeal waiver in Cornette’s plea agreement does not bar us from

reaching the merits of his ACCA claims. Third, we determine that Cornette’s 1976

Georgia burglary conviction does not qualify as a violent crime under the ACCA.

Finally, we hold that Cornette’s North Carolina controlled substance convictions do not

qualify as serious drug offenses under the ACCA. Accordingly, we grant Cornette’s

§ 2255 motion and remand for resentencing.

                                                    A.

         Under the ACCA, a person who is convicted of being a felon in possession of a

firearm and who “has three previous convictions . . . for a violent felony or a serious drug


                                              4
offense . . . committed on occasions different from one another . . . shall be . . .

imprisoned not less than fifteen years[.]” 18 U.S.C. § 924(e)(1). The statute defines

“violent felony” as:

       any crime punishable by imprisonment for a term exceeding one year . . .
       that . . . (i) has as an element the use, attempted use, or threatened use of
       physical force against the person of another; or (ii) is burglary, arson, or
       extortion, involves use of explosives, or otherwise involves conduct that
       presents a serious potential risk of physical injury to another[.]

18 U.S.C. § 924(e)(2)(B).       The first part of subsection (ii) is referred to as the

“enumerated offenses” clause, while the phrase “otherwise involves conduct that presents

a serious potential risk of physical injury to another” is known as the “residual clause.”

Johnson, 135 S. Ct. at 2555–57. In Johnson, the Supreme Court held that the residual

clause was unconstitutionally void for vagueness but that its “decision [did] not call into

question application of the [ACCA] to the four enumerated offenses, or the remainder of

the Act’s definition of a violent felony.” Id. at 2563.

       In Welch v. United States, the Supreme Court held that Johnson was a substantive

rule that applied retroactively on collateral review, as it “narrow[ed] the scope of [the

ACCA] by interpreting its terms,” and was also a “constitutional determination[] that

place[d] particular conduct or persons covered by the statute beyond the State’s power to

punish.” 136 S.Ct. 1257, 1265 (2016) (internal citation and quotation marks omitted).

Welch made clear that the residual clause of the ACCA “can no longer mandate or

authorize any sentence,” and that the substantive rule announced in Johnson “change[d]

the scope of the underlying criminal proscription” because there was a “significant risk




                                              5
that a defendant stands convicted of an act that the law does not make criminal.” Id. at

1265–66 (internal citation and quotation marks omitted).

       The statutory landscape as it stands today is that a defendant’s prior conviction can

still qualify as a “violent felony” only under the force clause or the enumerated clause of

the ACCA. The record of Cornette’s sentencing is unclear as to which clause of the

ACCA—or even what predicate convictions—the district court relied upon in sentencing

him. That is, in announcing its original sentence, the sentencing court stated only that it

overruled all of Cornette’s objections to the PSR and determined that the final offense

level of 32 was “correct as stated in the Presentence Investigation Report and adopted by

the Court.” J.A. 28. Upon remand and resentencing, the sentencing court stated only that

the total offense level of 32 and the criminal history category of VI made the applicable

guideline range 210 to 262 months. J.A. 54. There was no discussion of any of the

ACCA’s clauses in either sentencing.

       The government contends that the record does not establish that Cornette was

sentenced under the residual clause such that Cornette cannot present any Johnson II-

based challenge to his sentence. But under United States v. Winston, 850 F.3d 677 (4th

Cir. 2017), we are to read this equivocation in the record in Cornette’s favor. We

recently reaffirmed this reasoning, stating that “a Johnson II-based § 2255 motion relies

on a new rule of constitutional law . . . when the petitioner’s ACCA-enhanced sentence

‘may have been predicated on application of the now-void residual clause.’” United

States v. Hodge, 902 F.3d 420, 426 (4th Cir. 2018) (citing Winston, 850 F.3d at 682). In

other words, we “will not penalize a movant for a court’s discretionary choice not to


                                             6
specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent

felony.” Winston, 850 F.3d at 682. Since it is not clear one way or the other, we assume

for purposes of this appeal that Cornette was sentenced under the ACCA’s residual

clause.



                                             B.

          We now turn to whether Cornette’s appeal waiver bars us from considering the

merits of his ACCA petition for relief. We hold that it does not under the circumstances

of this case.

          Cornette’s plea agreement waived his right to appeal from errors in the sentence

imposed against him, except for claims of ineffective assistance of counsel and

prosecutorial misconduct. Cornette concedes that the claim he presses here is neither an

ineffective assistance of counsel nor a prosecutorial misconduct claim. But Cornette

contends that his otherwise valid appeal waiver does not bar him from now arguing that

by imposing a sentence under the now unconstitutional residual clause of the ACCA, the

district court exceeded its statutory authority to sentence him. Cornette’s argument finds

support in the precedent of this Court.

          In United States v. Marin, we held that “a defendant who waives his right to an

appeal does not subject himself to being sentenced entirely at the whim of the district

court.” 961 F.2d 493, 496 (4th Cir. 1993). An appeal waiver does not preclude a

defendant from challenging a sentence “based on a constitutionally impermissible factor”

or “a sentence imposed in excess of the maximum penalty provided by statute.” Id.; see


                                              7
also Garza v. Idaho, 139 S.Ct. 738, 745 n.6 (2019) (recognizing that lower courts have

applied exceptions to appeal waivers for claims “that a sentence . . . exceeds the statutory

maximum authorized”); United States v. Cohen, 888 F.3d 667, 683 (4th Cir. 2018)

(reiterating that “an appeal waiver does not preclude . . . challenges that a sentence

exceeds a statutory maximum or is based upon a constitutionally infirm factor”); United

States v. General, 278 F.3d 389, 399 (4th Cir. 2002) (acknowledging that “arguments

contending that sentence was imposed upon constitutionally impermissible factors or that

sentence exceeds the statutory maximum are not barred by contractual waivers.”).

       We subsequently applied Marin to the question of whether an appeal waiver

barred a defendant from challenging a district court’s restitution order that exceeded the

statutorily authorized punishment for a defendant’s underlying conviction. United States

v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995). It does not. Id. (“Because a

restitution order imposed when it is not authorized by [statute] is no less ‘illegal’ than a

sentence of imprisonment that exceeds the statutory maximum, appeals challenging the

legality of restitution orders are similarly outside the scope of a defendant’s otherwise

valid appeal waiver.”). Cornette’s challenge to his sentence is likewise predicated on the

assertion that the district court did not have the statutory authority to impose the sentence

it did (here, under the residual clause, rather than the restitution statute), and so Marin

and Broughton-Jones support his contention.

       Cornette’s argument can be simplified to the following: (1) Johnson struck the

residual clause of the ACCA as unconstitutional; (2) Welch made Johnson retroactive; (3)

he was sentenced pursuant to ACCA’s residual clause; and (4) because Welch made


                                             8
Johnson retroactive and he was sentenced pursuant to the ACCA’s residual clause, the

district court had the statutory authority at the first sentencing to impose a sentence

containing a sentence enhancement under the residual clause of the ACCA but is now

deemed not to have had that authority.          There is no dispute about the first two

propositions. And as we discussed previously, we do not agree with the government’s

argument about the third proposition that the original sentencing judge did not rely upon

the residual clause in sentencing Cornette, and that Cornette could not claim relief based

on Johnson. The only remaining issue, therefore, is whether the district court is now

deemed to have had the statutory authority to impose the sentence. It did not. The

district court sentenced Cornette pursuant to the residual clause. Welch made Johnson

retroactive, and so all sentences rendered under the residual clause became

unconstitutional.   Therefore, Cornette’s sentence was imposed “in excess of the

maximum penalty provided by [ACCA],” Marin, 961 F.2d at 496, and the appeal waiver

does not bar Cornette’s Johnson claim.

       To be clear, this does not mean that a subsequent change in sentencing law renders

an otherwise valid appeal waiver invalid. Our own precedent establishes that when a

sentencing law undergoes a non-retroactive change, a defendant who waived his right to

appeal a sentence imposed under the old regime remains bound by that waiver even if

resentencing under the new regime might otherwise entitle him to new rights or subject

him to different penalties. In United States v. Blick, 408 F.3d 162, 170 (4th Cir. 2005),

we rejected a defendant’s claim that he should be resentenced in light of the advisory

Guidelines regime announced in United States v. Booker, 543 U.S. 220 (2005), reasoning


                                            9
that “[p]lea bargains rest on contractual principles” and so a party “cannot . . . ask to re-

bargain the waiver of his right to appeal because of changes in the law.” Furthermore,

the defendant’s sentence was within the statutory maximum. We examined this issue

again in United States v. Archie, 771 F.3d 217 (4th Cir. 2014) (Agee, J.), where the

appellant levied a challenge based on the new right created by the Supreme Court in

Alleyne v. United States, 570 U.S. 99 (2013) that “any fact that increases the mandatory

minimum is an ‘element’ that must be submitted to the jury.” Yet, the Supreme Court did

not make Alleyne retroactive. Thus, in Archie, we held that a “post-sentencing change in

the law does not void” an appeal waiver, reasoning that if we declined to enforce an

appeal waiver because of a subsequent change in the law “we would deprive the

Government of the benefit of its bargain and frustrate the purpose underlying such

contracts.” Id. at 222.

       Both Alleyne and Booker created a new prospective procedural right within the

context of sentencing. But they did not do what Johnson does, which is to strike the

statutory provision under which a defendant was sentenced as unconstitutional, thus

removing the district court’s statutory authorization to sentence altogether. Yet Johnson

alone would give Cornette no relief. Only with the addition of Welch does Cornette have

a viable claim.

       Unlike the substantive rule that the Supreme Court announced in Johnson and

made retroactive in Welch, the Supreme Court never made the procedural rules in Alleyne

and Booker retroactive. Accordingly, in Blick and Archie we were considering sentences

that were still permissible at the time they were imposed.         Welch makes clear that


                                             10
sentences imposed under the residual clause of the ACCA are impermissible because

every person in the “class of persons” sentenced under the residual clause is one

“convicted of conduct the law does not make criminal.” 136 S. Ct. at 1265 (internal

citation and quotation marks omitted). A defendant such as Cornette who “does not

constitute an armed career criminal . . . [has] received a punishment that the law cannot

impose upon him.”     United States v. Shipp, 589 F.3d 1084, 1091 (10th Cir. 2009)

(internal quotation marks omitted) (citing Schriro v. Summerlin, 542 U.S. 348, 352

(2004)).

      In sum, because the residual clause was struck from the ACCA in Johnson and the

Supreme Court determined in Welch that Johnson announced a substantive rule that

applied retroactively, the district court is now deemed to have had no statutory authority

to impose Cornette’s sentence under the residual clause of the ACCA. Accordingly, we

may review Cornette’s sentencing challenge notwithstanding the appeal waiver.



                                           C.

      We turn now to the merits of Cornette’s ACCA arguments. Cornette contends that

his 1976 conviction for Georgia felony burglary is not categorically a violent felony

because both the unlawful entry and location elements of Georgia burglary are overbroad

when compared to the corresponding elements of generic burglary under the enumerated




                                           11
clause of the ACCA. 1 We first determine that the Georgia burglary statute under which

Cornette was convicted is indivisible, requiring application of the categorical approach.

We next apply the categorical approach to determine whether Cornette’s conviction

qualifies as an ACCA predicate. We conclude that it does not.



                                              1.

       We must first determine whether Georgia’s burglary statute at the time of

Cornette’s 1976 conviction is divisible or indivisible. If Georgia’s definition of burglary

is divisible, we use the modified categorial approach to determine whether it qualifies as

an ACCA predicate. United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013).

The modified categorical approach permits us to consult certain court records—such as

charging documents, plea agreements, transcripts of plea colloquies, judicial findings of

fact and conclusions of law, jury instructions, and verdict forms—to determine whether

the conduct underlying the defendant’s conviction fits the mold of an ACCA predicate.

Shepard v. United States, 544 U.S. 13, 26 (2005). But if Georgia’s definition of burglary

is not divisible, we use the categorical approach and restrict our analysis to the fact of the

conviction itself, taking no account of the actual conduct on which the conviction is

based. Hemingway, 734 F.3d at 332. We conclude that Georgia’s definition of burglary

is not divisible, making the categorical approach appropriate.


1
  There is no real question that Georgia felony burglary does not qualify as a violent
felony under the force clause of the ACCA—a person may commit burglary by entering
“without authority.” The Government makes no argument to the contrary.


                                             12
       We determine whether a statute is divisible based on whether the statute contains

“multiple alternative elements (thus creating multiple versions of a crime)” such that it is

divisible or “multiple alternative means (of committing the same crime)” such that it is

indivisible. Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014) (emphasis in

original). Under Mathis v. United States, the text of the statute and controlling state law

are starting points for answering this question. 136 S. Ct. 2243 (2016).

       The first question before us, then, is whether the text of the statute of Cornette’s

conviction suggests that the offense is divisible. The 1968 Georgia burglary statute under

which Cornette was convicted reaches any person who “without authority and with the

intent to commit a felony . . . enters or remains within . . . any building, vehicle, railroad

car, watercraft, or other such structure designed for use as the dwelling of another, or

enters or remains within any other building or any room or any part thereof.” Ga. Code §

26-1601 (1968). We must therefore determine whether the statute creates (a) separate

crimes of burglary that differ based on the type of location entered—e.g., burglary of a

building, burglary of a watercraft, burglary of a structure designed for use as a dwelling,

and so on—or (b) a single crime of burglary that requires, as one element, entry into any

of several different types of location.

       As a threshold matter, the statute does set forth a disjunctive list of types of

locations that may be burgled. See United States v. Fuertes, 805 F.3d 485, 498 (4th Cir.

2015). While the statute’s disjunctive language sets up a divisibility question, it does not

answer it. Id. (“[M]ere use of the disjunctive ‘or’ in the definition of a crime does not

automatically render it divisible.”); United States v. Royal, 731 F.2d 333, 340 (4th Cir.


                                             13
2013) (holding that similarly disjunctive jury instructions were compatible with an

indivisible offense).   Instead, we consider whether the statute’s language describes

“statutory alternatives” indicating different crimes or mere “illustrative examples”

referring only to a crime’s means of commission. Mathis, 136 S. Ct. at 2256.

       Here, the language of the Georgia burglary statute suggests a single crime of

burglary while spelling out various factual ways to fulfill the location element of the

offense. That is, the “illustrative examples” in the statute of burgling a watercraft or

railroad car refer only to the means of commission. Id. Additionally, the statute does not

contain different penalties based on the type of location burgled and does not require

prosecutors to charge the type of location burgled. Therefore, the statute’s language

suggests that it consists of alternative means as opposed to alternative elements.

       Controlling state court decisions confirm that the statute contains alternative

means. How state courts treat jury instructions, in particular, can be instructive on

whether a statute lists means or elements. In Omargharib, we explained that elements of

a crime, as opposed to means, are factual circumstances of the offense that the jury must

find “unanimously and beyond a reasonable doubt.” 775 F.3d at 198 (internal citation

and quotation marks omitted). As relevant here, Georgia courts have repeatedly upheld

jury instructions where a jury was entitled to find entry into either a “dwelling house or

building,” with no unanimity requirement on those alternatives. In Hart v. State, the

Georgia Supreme Court held that such a jury instruction was “sufficient to inform the

jury of the essential elements of the offense.” 517 S.E.2d 790, 793 (Ga. Ct. App. 1999).

Significantly, the indictment in Hart charged entry into a “dwelling house,” a term used


                                             14
in the burglary statute, but the jury was not required to agree that the location burgled

was indeed a “dwelling house.” Id. at 792; see also Long v. State, 705 S.E.2d 889 (Ga.

Ct. App. 2011) (upholding jury instruction with identical location element as “complete

and correct”). The lack of a jury unanimity requirement on the type of location burgled

indicates that burglary includes multiple alternative means as opposed to elements, and so

is an indivisible offense.

       While Georgia law does require prosecutors to charge “the specific location”

burgled, see Morris v. State, 303 S.E.2d 492, 494 (Ga. Ct. App. 1983) (stating that an

indictment “must specify the location of the burglary” in order “to give the defendant

ample opportunity to prepare a defense”), there is no analogous requirement that

prosecutors charge or prove the type of location burgled. In State v. Green, 218 S.E.2d

456, 457 (Ga. 1975), the Georgia Supreme Court dismissed an indictment charging a

defendant with entering “a building” because its failure to specify “the location of the

building in question” deprived the defendant of required notice. If the “specific location”

requirement pertained to the elements of the offense, the indictment in Green would have

been adequate. Conversely, the Georgia Court of Appeals in Mobley v. State, 296 S.E.2d

154, 154 (Ga. Ct. App. 1982), upheld an indictment that charged a defendant with

burgling the “Social Circle Drug Store,” even though it made no reference to a specific

location type stated in the burglary statute. Therefore, we conclude that this rule pertains

to the address of the location burgled as opposed to the type of location burgled.

       Resisting this conclusion, the government points to DeFrancis v. Manning, 271

S.E.2d 209 (Ga. 1980), in which the Georgia Supreme Court held an indictment to be


                                            15
legally defective because it charged burglary of a car without alleging that the car was

designed for use as a dwelling. The government’s reliance on DeFrancis is misplaced.

All DeFrancis tells us is that burglary requires a dwelling. It does not tell us that the

particular type of dwelling must be specified in the indictment. And it certainly does not

require the jury to agree on the type of dwelling alleged to have been burgled. See

Richardson v. United States, 890 F.3d 616, 624 (6th Cir. 2018) (finding that DeFrancis

does not bear on the divisibility inquiry).

       To summarize, both the text of the Georgia burglary statute in effect at the time of

Cornette’s conviction and controlling state law indicate that burglary is a single,

indivisible crime: the statutory text contains only alternative means of committing

burglary and state court precedent indicates that there is no requirement that a jury must

unanimously agree on the type of location that is burgled. Accordingly, the statute is

indivisible, and we apply the categorical approach. 2


       2
         We recognize that our conclusion puts us at odds with the Eleventh Circuit’s
decision in United States v. Gundy, 842 F.3d 1156 (11th Cir. 2016), and the Sixth
Circuit’s decision in Richardson v. United States, 890 F.3d 616 (6th Cir. 2018).
Respectfully, we do not find the reasoning of our sister circuits persuasive.
        The Eleventh Circuit relied on the text of the Georgia statute, the fact that “under
Georgia law a prosecutor must select, identify, and charge the specific place or location
that was burgled,” and the defendant’s indictment to find the statute divisible. Gundy,
842 F.3d at 1167. However, the inclusion of a “disjunctive list” in a criminal statute is
not probative of divisibility and Georgia’s requirement that prosecutors charge a “specific
location” means just that the prosecutor must include the address of the location burgled
to pass statutory muster and does not indicate that the statute itself sets forth alternative
crimes based on the type of location.
        The Sixth Circuit found the statute divisible because the defendant’s indictments
stated the location types enumerated in the Georgia statute. Richardson, 890 F.3d at 629.
But even if Georgia caselaw is ambiguous enough to allow a reviewing court to consider
(Continued)


                                              16
                                            2.

       Utilizing the categorical approach, we move to whether, at the time of Cornette’s

conviction in 1976, the definition of burglary in the Georgia burglary statute criminalized

more conduct than ACCA generic burglary. See McNeill v. United States, 563 U.S. 816,

820 (2011) (court applying ACCA must conduct “backward-looking” inquiry into prior

convictions, meaning that court must “consult the law that applied at the time of th[ose]

conviction[s]”); see also Rivera v. United States, 716 F.3d 685, 688 (2d Cir. 2013)

(“Whether a prior conviction qualifies as a predicate felony for the ACCA sentencing

enhancement is determined by looking to state law existing at the time of that

conviction.”). We hold that it did.

       Let us start with the generic definition of burglary. In United States v. Stitt, the

Supreme Court held that generic burglary under the enumerated clause of the ACCA is

“an unlawful or unprivileged entry into, or remaining in, a building or other structure,

with intent to commit a crime.” 139 S. Ct. 399, 405–06 (2018) (citing Taylor v. United

States, 495 U.S. 575, 598 (1990)). This definition includes entry into vehicles “adapted

or customarily used for lodging.” Id. at 406.




an individual defendant’s indictment as authorized under Mathis, that “peek” is for the
“sole and limited purpose of determining whether [alternatives] are elements of the
offense.” 136 S. Ct. at 2257. As the Georgia Supreme Court reasoned in Hart, even an
indictment that includes a specific type of statutory location cannot establish that the
location type is an element of the charged offense because a jury could properly have
been instructed with finding entry into either a “dwelling house or building.” 517 S.E.2d
at 793. Accordingly, the Richardson court’s reliance on the specific indictments of the
defendant to conclude that the type of location is an element of burglary was misplaced.


                                            17
       At the time of Cornette’s conviction, Georgia’s definition of burglary was broader

than the generic definition. The statute defining burglary reads as follows:

       A person commits burglary when, without authority and with the intent to
       commit a felony or theft therein, he enters or remains within the dwelling
       house of another, or any building, vehicle, railroad car, aircraft, watercraft,
       or other such structure designed for use as the dwelling of another, or enters
       or remains within any other building or any room or any part thereof. A
       person convicted of burglary shall be punished by imprisonment for not
       less than one nor more than 20 years.

Ga. Code § 26-1601 (1968). Facially, this definition of burglary appears to conform to

Stitt’s generic definition: it criminalizes entry into vehicles only if they are “designed for

use as the dwelling of another.” Id. But our reading of the statute’s language does not

control. Instead, we must defer to the interpretation of the statute employed by Georgia

courts at the time of Cornette’s conviction, in 1976. And at the time of Cornette’s

conviction, Georgia’s intermediate appellate court had held that the state’s definition of

burglary included entry into “any . . . vehicle,” regardless of whether it was designed for

use as a dwelling. Hayes, 186 S.E.2d at 436. Thus, when Cornette was convicted,

Georgia’s definition of burglary criminalized a broader range of conduct than the generic

definition of burglary we use for ACCA purposes.

       The government argues that Hayes has no bearing on our analysis because it was

issued by an intermediate appellate court, rather than by Georgia’s highest court.

According to the government, instead of looking to Hayes, we should turn our attention

to Massey v. State, 234 S.E.2d 144 (Ga. 1977). In Massey, the Supreme Court of Georgia

rejected Hayes, holding that “the clear intent of [the Georgia burglary] statute is that for a

person to be guilty of burglary of a vehicle such vehicle must be designed for use as a


                                             18
dwelling.” But Massey was not decided until 1977, whereas Cornette was convicted in

1976. At the time of Cornette’s conviction, Hayes had been decided and Massey had not.

That being so, we consider Hayes to be the binding interpretation of Georgia law at the

time of Cornette’s conviction. Indeed, when confronting matters of state law that have

not yet been decided by the state’s high court, we typically turn to the state’s intermediate

appellate courts. See Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir.

1998) (citing West v. AT & T Co., 311 U.S. 223, 237 (1940)). Nothing more is called for

here. In 1976, the crime of burglary in Georgia reached more conduct than the generic

crime of burglary enumerated in the ACCA; therefore, Cornette’s burglary conviction is

not a “violent felony” for purposes of the ACCA sentencing enhancement. 3

       Additionally, the government calls our attention to DeFrancis, 271 S.E.2d 209, in

which the Supreme Court of Georgia granted habeas relief to a petitioner who had been

convicted of burglary in 1974 but whose indictment was deficient under the post-Massey

interpretation of the burglary statute. DeFrancis does not affect our analysis. The

inquiry into whether state law at the time of conviction “covers more conduct” than the

generic offense does not anticipate a separate inquiry into whether some convicted

defendants later accrued a claim to habeas relief, as happened with the habeas petitioner

in DeFrancis. Mathis, 136 S. Ct. at 2250. This approach comports with other circuits

that have considered the question. See, e.g., United States v. Faust, 853 F.3d 39, 58 (1st

Cir. 2017) (declining to consider subsequent judicial interpretations of an unchanged

3
 Based on our holding, we need not consider Cornette’s additional argument that the
unlawful entry element of Georgia burglary is broader than generic burglary.


                                             19
statute for purposes of applying the categorical approach under the ACCA); United States

v. Roblero-Ramirez, 716 F.3d 1122 (8th Cir. 2013) (looking to highest state court caselaw

at the time of defendant’s state court conviction to determine that Nebraska sudden

quarrel manslaughter was not a “crime of violence” under the Sentencing Guidelines,

even where Nebraska Supreme Court later held that manslaughter required intent, as

“[t]hat interpretation was not Nebraska law when Roblero-Ramirez was convicted.”).

       Therefore, Massey and DeFrancis do not disturb our conclusion that at the time of

Cornette’s conviction, the highest Georgia state court to interpret the location element of

the Georgia burglary statute held that it covered entry into “any . . . vehicle.” Hayes, 186

S.E.2d at 436. Thus, the Georgia burglary statute, as construed by the applicable Georgia

court at the time of Cornette’s conviction, is overbroad compared to the generic burglary

crime in the enumerated clause of the ACCA, and Cornette’s 1976 burglary conviction is

therefore not a “violent felony” for purposes of the ACCA sentencing enhancement.



                                            D.

       Having determined that Cornette’s burglary conviction no longer qualifies as a

violent felony, we move to whether Cornette’s 1984 North Carolina controlled substance

convictions qualify as ACCA predicates. Cornette contends that in light of our decisions

in United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and United States v. Simmons,




                                            20
649 F.3d 237 (4th Cir. 2011) (en banc), these convictions no longer qualify as ACCA

predicates. We agree. 4

       In Newbold, we applied Simmons to determine whether a 1984 North Carolina

conviction imposed under the Fair Sentencing Act qualified as a serious drug offense for

purposes of § 924(e)(2)(A). 791 F.3d at 463. We looked to the presumptive sentence

that the offense carried and whether the defendant’s state court judgment had

“aggravating factors supporting a sentence within the aggravated range,” that is, a

sentence above the presumptive sentence. Id. There, the judgment did not state any

aggravating factors found by the sentencing judge, and there was no evidence found in

the plea transcript to support an admission of aggravating factors, and so we held that

Newbold’s conviction did not qualify as a serious drug offense because he could not have

received ten years of imprisonment for the offense without a finding of aggravating

factors. Id. at 461–63.

       At the time of Cornette’s 1984 conviction, North Carolina also sentenced criminal

defendants under the Fair Sentencing Act. And like the record we examined in Newbold,

the record before us has no finding and recording of aggravating or mitigating factors.

Cornette’s state court judgment only shows that the presumptive range for his controlled

substance conviction was three years’ imprisonment and that the maximum term was 10


4
  The district court found that Cornette had not timely challenged his ACCA designation
under Simmons. In doing so, it misapprehended the nature of Cornette’s challenge—at
the time of Simmons, Cornette had three remaining ACCA predicate offenses, and so
could not claim relief under Simmons to argue that his sentence “was in excess of the
maximum authorized by law” under § 2255(a).


                                           21
years. J.A. 95. Under the Fair Sentencing Act, Cornette could not have received 10

years of imprisonment for his North Carolina controlled substance conviction without a

finding of aggravating factors on the record. There is no such finding, and so Cornette’s

1984 controlled substance conviction is not a “serious drug offense” as is necessary to

qualify as an ACCA predicate.



                                            IV.

       To recap, we hold that: (1) Cornette may appeal his sentence notwithstanding the

appeal waiver in his plea agreement; (2) his 1976 Georgia burglary conviction is not a

“violent felony” under the ACCA; and (3) his 1984 North Carolina controlled substances

conviction is not a “serious drug crime” under the ACCA. Therefore, Cornette does not

have the requisite number of predicate offenses to be designated an armed career criminal

under the ACCA. We therefore grant Cornette’s § 2255 petition and reverse and remand

for resentencing, with instructions for the district court to resentence Cornette without the

ACCA enhancement.

                                  REVERSED AND REMANDED WITH INSTRUCTIONS




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