                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 14a0108p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


 UNITED STATES OF AMERICA,                             ┐
                                 Plaintiff-Appellee,   │
                                                       │
                                                       │       No. 13-5344
 v.                                                    │
                                                        >
                                                       │
 TIMOTHY PHILLIPS,                                     │
                              Defendant-Appellant.     │
                                                       ┘
                        Appeal from the United States District Court
                   for the Eastern District of Tennessee of Chattanooga.
                 No. 1:12-cr-00052-1—Harry S. Mattice, Jr., District Judge.
                                 Argued: January 28, 2014
                             Decided and Filed: May 27, 2014
                  Before: GUY, GIBBONS, and ROGERS, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED:        Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee for Appellant. Gregg L. Sullivan, UNITED STATES
ATTORNEY’S OFFICE, Chattanooga, Tennessee for Appellee. ON BRIEF: Laura E. Davis,
FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee
for Appellant. Gregg L. Sullivan, UNITED STATES ATTORNEY’S OFFICE, Chattanooga,
Tennessee for Appellee.

       GIBBONS, J., delivered the opinion of the court in which, GUY, J., joined. ROGERS, J.
(pp. 8B11), delivered a separate dissenting opinion.




                                              1
No. 13-5344                USA v. Phillips                                                      Page 2

                                              _________________

                                                    OPINION
                                              _________________

       JULIA SMITH GIBBONS, Circuit Judge. Timothy Phillips pled guilty to being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court determined
that Phillips qualified for an enhanced sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), based in part on a prior Florida third-degree burglary-of-a-
structure conviction. The Florida statute defined burglary in the third degree as burglary in
which the offender does not commit assault or battery, does not become armed with a dangerous
weapon, and required that the structure be unoccupied. Fla. Stat. § 810.02(4). On appeal, the
government contends that Phillips’s burglary conviction is a violent felony within the meaning of
the ACCA’s residual clause, which defines violent felony as a crime that “otherwise involves
conduct that presents a serious potential risk of physical injury to another.”                           18 U.S.C.
§ 924(e)(2)(B)(ii).

       The Supreme Court has explained that under Florida’s burglary statute attempted
burglary is a violent felony within the meaning of the ACCA’s residual clause in part because of
the potential risk of violent confrontation with passersby. Because that risk is present when
offenders commit the crime of third-degree burglary as defined by Florida law, we hold that the
offense of conviction falls within the ACCA’s residual clause.                      We also reaffirm that the
ACCA’s residual clause is not unconstitutional.

                                                          I.

       In 1999, Timothy Phillips was convicted of a third-degree felony for burglary of a
structure. Florida defines burglary as “entering or remaining in a dwelling, a structure, or a
conveyance with the intent to commit an offense therein, unless the premises are at the time open
to the public or the defendant is licensed or invited to enter or remain.”                                Fla. Stat.
§ 810.02(1)(a).1 Subsection (4) provides:


       1
           The statute has been amended since Phillips committed the crime but is not materially different.
No. 13-5344                USA v. Phillips                                        Page 3

       Burglary is a felony of the third degree, . . . if, in the course of committing the
       offense, the offender does not make an assault or battery and is not and does not
       become armed with a dangerous weapon or explosive, and the offender enters or
       remains in a:
       (a) Structure, and there is not another person in the structure at the time the
       offender enters or remains[.]

Id. § 810.02(4)(a).

       In 2012, Philips pled guilty to being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1).           The Presentence Report determined that Phillips qualified for an
enhanced sentence under the ACCA, concluding that his Florida conviction was a burglary as
defined in 18 U.S.C. § 924(e)(2)(B)(ii).2

       Phillips objected to the ACCA enhancement on three grounds. First, he argued that his
prior conviction was not categorically a generic burglary within the meaning of
§ 924(e)(2)(B)(ii) under Taylor v. United States, 495 U.S. 575 (1990), and that the government
had failed to prove that his was a generic burglary with appropriate Shepard documents, see
Shepard v. United States, 544 U.S. 13, 16 (2005). Second, he argued that the ACCA’s residual
clause did not apply because the Florida statute defined third-degree burglary to exclude the
potential presence of a victim, thereby eliminating a serious potential risk to others. Third, he
argued that the residual clause was unconstitutionally vague.

       The district court concluded that the proffered documents adequately demonstrated that
Phillips was convicted of a “burglary” within the meaning of the ACCA. The district court thus
found it unnecessary to determine whether Phillips’s burglary conviction qualified under the
ACCA’s residual clause. Phillips timely appealed.

                                                          II.

       The government concedes that, in light of the Supreme Court’s recent decision in
Descamps v. United States, 133 S. Ct. 2276 (2013), which postdates the district court’s
judgment, the evidence in the record does not establish that Phillips committed a generic


       2
           Phillips concedes that two other convictions are predicate offenses.
No. 13-5344           USA v. Phillips                                            Page 4

burglary. Nevertheless, we may affirm the district court on any ground supported by the record.
United States v. Gill, 685 F.3d 606, 609 (6th Cir. 2012). We therefore turn to the applicability of
the ACCA’s residual clause.

                                                A.

       We review de novo the question whether a defendant’s prior conviction is a violent
felony under the ACCA. See United States v. Stafford, 721 F.3d 380, 395–96 (6th Cir. 2013).
We also review a challenge to the constitutionality of a statute de novo. Id. at 403.

                                                B.

       The ACCA imposes a fifteen-year minimum sentence on a defendant convicted under
18 U.S.C. § 922(g) when that defendant has three or more prior convictions for a “violent
felony” or a “serious drug offense” or both. 18 U.S.C. § 924(e)(1). The ACCA contains a list of
enumerated violent felonies: burglary, arson, extortion, and crimes involving the use of
explosives. Id. § 924(e)(2)(B)(ii). The ACCA’s residual clause defines a violent felony as a
crime that “otherwise involves conduct that presents a serious potential risk of physical injury to
another.” Id.

       “A sentencing court applies a ‘categorical’ approach to determine the nature of a prior
conviction, which means that it focuses on the statutory definition of the offense, rather than the
manner in which an offender may have violated the statute in a particular circumstance.” United
States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013). Under the ACCA’s residual clause, “the
proper inquiry is whether the conduct encompassed by the elements of the offense, in the
ordinary case, presents a serious potential risk of injury to another.” James v. United States,
550 U.S. 192, 208 (2007); see also Sykes v. United States, 131 S. Ct. 2267, 2273 (2011). “[A]
crime involves the requisite risk when ‘the risk posed by the [crime in question] is comparable to
that posed by its closest analog among the enumerated offenses.’” Sykes, 131 S. Ct. at 2273
(alterations in original) (quoting James, 550 U.S. at 203).

       This analysis begins by considering the elements of the statute at issue. James, 550 U.S.
at 202. Phillips’s prior conviction was for third-degree burglary of a structure. Fla. Stat.
§ 810.02(4). Burglary under Florida law “means entering or remaining in a dwelling, a structure,
No. 13-5344           USA v. Phillips                                             Page 5

or a conveyance with the intent to commit an offense therein, unless the premises are at the time
open to the public or the defendant is licensed or invited to enter or remain.” Id. § 810.02(1)(a).

       Burglary is a felony of the third degree, . . . if, in the course of committing the
       offense, the offender does not make an assault or battery and is not and does not
       become armed with a dangerous weapon or explosive, and the offender enters or
       remains in a:
       (a) Structure, and there is not another person in the structure at the time the
       offender enters or remains[.]

Id. § 810.02(4).

       Phillips argues that, by its very terms, the statute precludes a serious potential risk of
injury to another—to be convicted, no other person may be present within the structure. But the
Supreme Court has explained the risk of burglary otherwise.

       The main risk of burglary arises not from the simple physical act of wrongfully
       entering onto another’s property, but rather from the possibility of a face-to-face
       confrontation between the burglar and a third party—whether an occupant, a
       police officer, or a bystander—who comes to investigate. That is, the risk arises
       not from the completion of the burglary, but from the possibility that an innocent
       person might appear while the crime is in progress.

James, 550 U.S. at 203; see also id. at 204 (citing United States v. Payne, 966 F.2d 4, 8 (1st Cir.
1992) (“In all of these cases the risk of injury arises, not from the completion of the break-in, but
rather from the possibility that some innocent party may appear on the scene while the break-in
is occurring.”)). Thus, according to James, there are two classes of individuals put at risk by
burglaries: occupants and passersby. Phillips argues, in effect, that removing occupants from the
equation so diminishes the potential risk of injury that this is no longer a crime of violence. But
neither this court, nor any court, has ever so held. While the likelihood of confrontation with
occupants or passersby is certainly greater than that with passersby only, a serious potential risk
of physical injury to passersby still remains. See James, 550 U.S. at 203.

       This conclusion comports with the proper analytical approach to the residual clause. On
a general level the residual clause asks us to compare the crime in question to its closest analog
among the enumerated offenses, see Sykes, 131 S. Ct. at 2273, generic burglary in this case. We
have held that a conviction under the same Florida statutory subsection is a generic burglary
No. 13-5344            USA v. Phillips                                           Page 6

when the government proves with appropriate documents that the defendant burglarized a
structure and not its curtilage. See United States v. Ortkiese, 208 F. App’x 436, 440–41 (6th Cir.
2006); see also United States v. Jackson, 250 F. App’x 926, 929 (11th Cir. 2007). The only
reason that Phillips’s conviction is not for generic burglary is the fact that the government failed
to prove whether Phillips burglarized a structure (which is a generic burglary) or its curtilage
(which is not). In this case, burglaries involving curtilage are the residuum not covered by the
ACCA’s definition of burglary.

        This is precisely where the residual clause is operative. It “cover[s] conduct that is
outside the strict definition of, but nevertheless similar to, generic burglary.” James, 550 U.S. at
212. It stands to reason that, if third-degree burglary of a structure is a generic burglary, if the
only thing separating Phillips’s conviction and generic burglary is the possibility that the crime
occurred on a structure’s curtilage, and if the residual clause is meant to cover conduct
substantially similar to the enumerated, generic burglary, then the residual clause covers
Phillips’s conviction. A contrary conclusion would mean the possibility that the crime took
place on a structure’s curtilage was, as a matter of practical import, outcome determinative. It is
not. See James, 550 U.S. at 213 (“[A] burglar who illegally attempts to enter the [structure’s
curtilage under Florida law] creates much the same risk of physical confrontation with a property
owner, law enforcement official, or other third party as does one who attempts to enter the
structure itself.”).

        Our conclusion is in accord with the other circuits to consider whether a conviction under
§ 810.02(4)(a) presents a serious potential risk of physical injury to another in the ordinary case.
See United States v. Wheeler, 434 F. App’x 831, 833–34 (11th Cir. 2011); United States v.
Sanchez-Ramirez, 570 F.3d 75, 83 (1st Cir. 2009); United States v. Matthews, 466 F.3d 1271,
1275 (11th Cir. 2006). As explained by the First Circuit in Sanchez-Ramirez:

        In discussing the dangers inherent in attempted burglary of a dwelling, the Court
        in James reasoned that the “risk arises not from completion of the burglary, but
        from the possibility that an innocent person might appear while the crime is in
        progress.” Id. at 203, 127 S. Ct. 1586. In addition to building occupants—not a
        factor in this case—the Court also noted the possibility of confrontation with
        police or bystanders who might investigate. Id. These risks are present equally in
        Sanchez’s third-degree “structure-curtilage” burglary convictions. We therefore
        conclude that those convictions satisfy the elements of the ACCA residual clause.
No. 13-5344           USA v. Phillips                                             Page 7

570 F.3d at 83.

       We acknowledge Judge Rogers’s well-reasoned dissent and agree that the facts of
Phillips’s burglary do not fit comfortably within the ACCA’s residual clause. Indeed, the dissent
may paint a better picture of how the law should be. But we cannot square the dissent’s result
with the Supreme Court’s clear admonition in James that the “risk [of burglary] arises not from
the completion of the burglary, but from the possibility that an innocent person might appear
while the crime is in progress.” 550 U.S. at 203. Accordingly, like the First and Eleventh
Circuits, we hold that a conviction for third-degree burglary of a structure in Florida is a “violent
felony” within the meaning of the ACCA’s residual clause.

                                                 C.

       Finally, Phillips asks us to consider whether the ACCA’s residual clause is void for
vagueness. He does so candidly, acknowledging that he raises the argument to preserve the issue
for Supreme Court review. Binding precedent holds that the ACCA’s residual clause is not
unconstitutionally vague. See Sykes, 131 S. Ct. at 2277; James, 550 U.S. at 210 n.6; Stafford,
721 F.3d at 403.

                                                III.

       For the foregoing reasons, we affirm.
No. 13-5344           USA v. Phillips                                               Page 8

                                        _________________

                                            DISSENT
                                        _________________

ROGERS, Circuit Judge, dissenting.

       Timothy Phillips’s third-degree burglary conviction is not a violent felony under the
residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because the
crime, narrowly defined to be the least dangerous form of felony burglary, does not pose a risk of
violent confrontation comparable to that of generic burglary.

       The ACCA does not count Phillips’s offense as a predicate, because the degree of risk
posed by the violation of Florida’s third-degree burglary statute, in the “ordinary case,” is not
“roughly similar” to the degree of risk posed by generic burglary. See Begay v. United States,
553 U.S. 137, 143 (2008) (requiring degrees of risk to be “roughly similar”); James v. United
States, 550 U.S. 192, 208 (2007) (requiring comparisons between “ordinary case[s]”). The
Supreme Court has defined generic burglary under the ACCA as a crime “having the basic
elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with
intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). The Florida third-
degree burglary statute under which Phillips was convicted differs meaningfully from this
deliberately broad definition in three respects, each of which makes the crime less risky in the
ordinary case.

       First, the offender must not be armed with a dangerous weapon or explosive. Fla. Stat.
§ 810.02(4). This element clearly decreases the potential risk of serious injury.

       Second, the building or structure is not just any building or structure, but one that is
categorically unoccupied and not intended for human habitation. Fla. Stat. §§ 810.02(4)(a),
810.011(1)–(2).   This restriction significantly decreases the risk of a violent confrontation,
because it entirely eliminates the most important and volatile class of potential confronters. We
recently explained in United States v. Covington that “the risk posed by breaking into someone’s
home with the intent to commit a felony is considerably greater than the risk posed by breaking
out of a prison.” 738 F.3d 759, 766 (6th Cir. 2014) (emphasis removed). The James Court made
No. 13-5344           USA v. Phillips                                              Page 9

it clear that the possible presence of an occupant inside a building contributes substantially to the
degree of risk when it stated that the risk of serious physical injury during a burglary arises from
“the possibility of a face-to-face confrontation between the burglar and a third party—whether
an occupant, a police officer, or a bystander—who comes to investigate.” 550 U.S. at 203
(emphasis added).     And as the majority concedes, “the likelihood of confrontation with
occupants or passersby is certainly greater than that with passersby only.”

       It does not follow from the First Circuit’s decision in Sanchez-Ramirez, 570 F.3d 75 (1st
Cir. 2009), that a serious potential risk still remains. The First Circuit later criticized Sanchez-
Ramirez’s reasoning for making an improper logical leap from there remains a possibility of
confrontation to there is a serious potential risk of confrontation:

       The gist of the argument is that, as was observed in James and Sanchez-Ramirez,
       in each case there is a realistic possibility that a perpetrator will be interrupted and
       violence will ensue. But such an argument could be applied to almost any crime
       in which “getting caught in the act” escalates the potential for violence. We
       require a more fine-toothed approach.

United States v. Farrell, 672 F.3d 27, 34 (1st Cir. 2012). Under a “more fine-toothed approach,”
the difference in the risk of violent confrontation between burglary of an occupied structure or
dwelling and burglary of an unoccupied structure is significant.

       Indeed, Farrell considered the likelihood that a structure is occupied in assessing the
risks posed by the commission of a non-generic burglary-like offense. In that case, the First
Circuit held that a Massachusetts breaking-and-entering conviction was not a violent felony
under the ACCA’s residual clause. Id. at 36. The Farrell court emphasized that the statute
included ships and vessels in the set of possible locations of the crime. Id. at 32. Because the
likelihood of a person’s being present in a ship or vessel during the daytime is less than the
likelihood of a person’s being present in a generic building at an unspecified time, the court
concluded that “the predicate crime . . . and generic burglary are insufficiently congenerous.”
See id. at 34–35.

       Third, Florida’s definition of “structure” is broader than that for generic burglary, in that
Florida’s definition includes the curtilage of a building. It is true that, as the Supreme Court held
in James, curtilage is defined narrowly in Florida to require a fenced-in area, such that extending
No. 13-5344           USA v. Phillips                                            Page 10

burglary to breaking the curtilage still risks a violent encounter; but the Florida statutory
provision at issue in James, namely second-degree burglary under § 810.02(3), involved a
dwelling or occupied structure. See James, 550 U.S. at 212–13. Here the situation involves the
curtilage of a categorically unoccupied building. Those third-degree burglary cases in which
there is an entry into the curtilage, but not the structure itself, involve a lesser risk of a violent
encounter. A miscreant spotted in a such a curtilage is more likely to be considered a mere
trespasser than he is a felonious burglar, and will therefore typically incite a less violent
response. And he is more likely to abscond and rapidly defuse the situation. As Justice Scalia
noted with respect to the entering of the curtilage of an occupied dwelling: “The so-called
‘confrontation’ . . . between a would-be burglar and a third party while the burglar is
still outside the home is likely to consist of nothing more than the occupant’s yelling ‘Who’s
there?’ from his window, and the burglar's running away.” Id. at 226 (Scalia, J., dissenting).
Thus, the inclusion of the curtilage in the definition of the crime decreases the risk of violence.

       Taken together, these three definitional differences decrease the degree of risk below the
point where it is roughly comparable to that of generic burglary.

       Our unpublished decision in United States v. Ortkiese, 208 F. App’x 436, 440–41 (6th
Cir. 2006), is distinguishable. Ortkiese held that third-degree burglary of a structure (rather than
of just its curtilage) would be a generic burglary. Here, the Government concedes that Phillips’s
offense is not a generic burglary. Moreover, Ortkiese did not discuss the other narrowing
elements of the offense at issue in this case—that the offender must not be armed and that the
building must not be occupied—that make this offense less dangerous than a generic burglary.

       Florida’s legislature deliberately distinguishes among forms of burglary, such that each
offense varies in dangerousness and culpability, and third-degree burglary is the least serious
form of the offense. This meaningful and relevant organization of the state criminal code should
factor into our analysis. The Supreme Court has left open the question of whether “a State’s
decision to divide a generic form of conduct . . . into separate, escalating crimes may make a
difference under the ACCA.” Sykes v. United States, 131 S. Ct. 2267, 2293 (2011) (Kagan, J.,
dissenting); see also Chambers v. United States, 555 U.S. 122, 127 (2009). Because Congress
did not “limit the predicate offense to some special subclass of burglaries that might be
No. 13-5344           USA v. Phillips                                         Page 11

especially dangerous, such as those where the offender is armed, or the building is occupied, or
the crime occurs at night,” Taylor, 495 U.S. at 588, generic burglary encompasses various forms
of burglary of varying degrees of dangerousness. As here, where a state creates a special
subclass of comparatively less dangerous burglaries that do not qualify as generic burglaries, the
ACCA’s residual clause should not apply.

       When pilfering a few stray eggs from the fenced yard of a chicken coop is considered
“violent,” the term “violent” becomes unmoored from its meaning. Today’s holding is not far
from that. Such a holding extends the ACCA far beyond the archetypal home invasion that
Congress most likely contemplated as the characteristic burglary committed by truly violent
career criminals. See id. at 581.

       The Florida legislature defined the crime of third-degree burglary in such a way that its
commission presents considerably less risk of a violent confrontation than does a generic
burglary. The Supreme Court has held that the residual clause only extends to “crimes that are
roughly similar, in kind as well as in degree of risk posed,” to the generic crimes. Begay, 553
U.S. at 143. Because the risk posed in the ordinary case by a Florida third-degree burglary is not
roughly comparable to the risk posed in the ordinary case by a generic burglary, it follows that
Phillips’s previous conviction was not for a violent felony, and the ACCA does not apply. I
would accordingly reverse the sentence and remand for resentencing.
