                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3616
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                                 Eddie Jarell Byas

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Southern District of Iowa - Davenport
                                 ____________

                         Submitted: September 18, 2017
                           Filed: September 28, 2017
                                   [Published]
                                 ____________

Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.
                           ____________

PER CURIAM.

      Eddie Byas challenges the district court's application of the Armed Career
Criminal Act (ACCA) to him at sentencing. We vacate the district court's sentence
and remand for resentencing.
       Byas was convicted of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g). At sentencing, the district court applied the ACCA's fifteen-year,
mandatory minimum sentence on the basis of three prior convictions. 18 U.S.C.
§ 924(e). Byas challenges the use of one of these, a conviction for burglary in Illinois
in 2005. Byas was charged with "residential burglary," and he pled guilty to the
lesser included offense of, simply, "burglary." At the time of Byas's conviction, the
Illinois burglary statute provided in relevant part: "A person commits burglary when
without authority he knowingly enters or without authority remains within a building,
housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle
Code, railroad car, or any part thereof, with intent to commit therein a felony or
theft." 720 Ill. Comp. Stat. 5/19-1(a) (footnote omitted).

        The ACCA mandates a minimum sentence of fifteen years for violations of
§ 922(g) for individuals with three previous convictions for certain offenses,
including "violent felonies" such as burglary. 18 U.S.C. § 924(e)(2)(B)(ii). A state
conviction for burglary may only serve as an ACCA predicate offense if the scope of
conduct it criminalizes is no broader than the generic definition of burglary set forth
in Taylor v. United States, 495 U.S. 575 (1990): "unlawful or unprivileged entry into,
or remaining in, a building or structure, with intent to commit a crime." Id. at 599.
The parties argue about whether the list of locations in which a burglary may occur
under section 5/19-1(a)—which include locations that are not buildings or structures,
such as vehicles—are elements, each a constituent part of a separate crime, or merely
a list of means, various factual circumstances by which one can commit the single
crime of burglary. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).1 If
elements, we can delve into certain facts to decide which crime Byas was convicted
of (i.e. the "modified categorical approach"). If means, the statute is categorically
overbroad. Id.


      1
       The Seventh Circuit, incidentally, has concluded they are means. United
States v. Haney, 840 F.3d 472, 475 (7th Cir. 2016).

                                          -2-
       But this elements-or-means analysis is only necessary if, were we to determine
the list sets forth elements, at least one of those elements falls within the definition
of generic burglary. See United States v. Tucker, 740 F.3d 1177, 1179-80 (8th Cir.
2014) ("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." (emphasis added)). Under
controlling Eighth Circuit authority, the only enumerated location that could meet that
definition here is "building." See United States v. Sims, 854 F.3d 1037, 1039-40 (8th
Cir. 2017) (noting vehicles, including a trailer home, do not fall within Taylor's
generic definition of burglary). If none of the enumerated localities fall within the
generic definition, or are further divisible, the statute is necessarily overbroad and a
conviction under it may not serve as an ACCA predicate offense for burglary.

       Although Taylor specifically mentions a building in its generic definition, we
are bound by Illinois's interpretation of that term as it is used in an Illinois statute.
Johnson v. Fankell, 520 U.S. 911, 916 (1997). The question, therefore, is whether
Illinois's definition of a building is broader than Taylor's. We conclude that it is. At
least two Illinois Court of Appeals decisions have applied section 5/19-1(a) to the
"burglary" of a detached semitrailer, both expressly holding that this constituted the
burglary of a building. See People v. Denton, 728 N.E.2d 848, 850 (Ill. App. Ct.
2000); People v. Ruiz, 479 N.E.2d 1195, 1197 (Ill. App. Ct. 1985). The semitrailer
in both cases was used for temporary, short-term storage of goods until the arrival of
a tractor truck, which would then haul the trailer away. (The Ruiz case specifies that
the trailers were on wheels, but the Denton case does not.) Ruiz cites a number of
Illinois cases identifying types of structures considered buildings for purposes of the
offense of burglary, including a tent, a chicken house, and a telephone booth. See
Ruiz, 479 N.E.2d at 1198 (citing cases).




                                          -3-
      We have observed with respect to a Missouri burglary statute:

      Initially, this crime appears to fit within the elements of generic
      burglary. However, Missouri law defines 'inhabitable structure' to
      include 'a ship, trailer, sleeping car, airplane, or other vehicle or
      structure.' Mo. Rev. Stat. § 569.010(2). The statute thus covers a
      broader range of conduct than generic burglary and therefore does not
      qualify categorically as a violent felony.

United States v. Phillips, 853 F.3d 432, 435 (8th Cir. 2017) (emphasis added)
(quoting United States v. Bess, 655 Fed. App'x 518, 519 (8th Cir. 2016)); see also
United States v. Eason, 643 F.3d 622, 624 n.3 (8th Cir. 2011) ("This Tennessee
statute 'is potentially over-inclusive' because subpart (4) includes burglaries of
automobiles, trucks, trailers, boats, and airplanes, which are not 'buildings.'"
(emphasis added) (quoting United States v. Stymiest, 581 F.3d 759, 768 (8th Cir.
2009))); Stymiest, 581 F.3d at 768 ("The [third-degree burglary] statute is potentially
over-inclusive because it defines 'structure' to include motor vehicles, watercraft,
aircraft, railroad cars, trailers, and tents." (emphasis added)).

       It seems to us that a detached semitrailer, temporarily storing goods and shortly
destined to be transported as part of a tractor-trailer rig, is more akin to a stationary
vehicle such as a railcar than a building or structure. (We will leave tents, chicken
houses, and telephone booths aside for now.) Therefore, even if Illinois's burglary
statute were divisible, its only enumerated location that could fit within generic
burglary—a building—is defined to include a broader class of locations than
contemplated by Taylor. "Building" is not itself divisible into separate crimes for
entry into different types of buildings. Accordingly, a burglary conviction under
section 5/19-1(a) may not operate as an ACCA predicate offense.2


      2
       Our decision in United States v. Maxwell, 363 F.3d 815 (8th Cir. 2004), does
not control the outcome here. That opinion did not address or consider the breadth

                                          -4-
       For the foregoing reasons, we vacate Byas's sentence and remand to the district
court for resentencing consistent with this opinion.
                       ______________________________




of Illinois's definition of "building" for the offense of burglary, but rather assumed
it to be coextensive with the use of that term in the generic definition. Id. at 821
("Both Illinois statutes defining burglary include all the generic elements of burglary
defined in Taylor."). The issue we decide today was not squarely addressed by
Maxwell, and we are not bound by its assumption in that case. United States v.
Knowles, 817 F.3d 1095, 1097 (8th Cir. 2016).

                                         -5-
