                                                                       [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT          FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                       No. 10-13680                      JULY 14, 2011
                                 ________________________                 JOHN LEY
                                                                            CLERK
                           D.C. Docket No. 9:10-cr-80037-DMM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                              Plaintiff - Appellee,


                                            versus


KANE CHRISTOPHER WHEELER, JR.,

lllllllllllllllllllll                                              Defendant - Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                        (July 14, 2011)

Before BARKETT, WILSON and ARNOLD,* Circuit Judges.

PER CURIAM:

         *
        Honorable Morris S. Arnold, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
      Kane Christopher Wheeler appeals his sentence of 180 months’

imprisonment, imposed after he pled guilty to one count of possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Wheeler was

sentenced as an armed career criminal under the Armed Career Criminal Act

(“ACCA”), his prior three convictions for third degree burglary under Florida

Statutes § 810.02, serving as the predicate offenses. Wheeler argues that third

degree burglary under Florida law is different from generic burglary and does not

pose a risk of serious injury to another person, thereby not qualifying as a “violent

felony” for purposes of sentencing under the ACCA.

      This Court considers de novo whether a particular conviction is a violent

felony for purposes of the ACCA. United States v. Wilkerson, 286 F.3d 1324,

1325 (11th Cir. 2002). Under the ACCA, a person who violates 18 U.S.C. §

922(g) and who has three previous convictions for a violent felony, a serious drug

offense, or both, is an armed career criminal and subject to imprisonment for a

period of not less than 15 years. 18 U.S.C. § 924(e)(1). The ACCA defines a

violent felony as:

      [A]ny crime punishable by imprisonment for a term exceeding one
      year, or any act of juvenile delinquency involving the use or carrying
      of a firearm, knife, or destructive device that would be punishable by
      imprisonment for such term if committed by an adult, that . . .



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      (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[.]

Id. § 924(e)(2)(B) (emphasis added). Thus, a defendant may be sentenced as an

armed career criminal if his prior offense is either for one of the enumerated

offenses or it “involves conduct that presents a serious potential risk of physical

injury to another” person.

      In Taylor v. United States, the Supreme Court adopted the generic meaning

of “burglary” for purposes of the ACCA, holding that an offense qualifies as an

enumerated offense in the statute so long as it includes, at a minimum, the

elements of “an unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime.” 495 U.S. 575, 599 (1990). The Court

explained that Congress did not intend to limit generic burglary to especially

dangerous burglaries, but also included “run-of-the-mill burglaries involving an

unarmed offender, an unoccupied building, and no use or threat of force.” Id. at

597. The Court directed courts to use a categorical approach to determine if a

predicate offense is equivalent to generic burglary. Id. at 602.

      It is by now well-understood that under the categorical approach, courts

may look only to the fact of conviction and the statutory definition of the predicate

offense. Id. However, in those cases where it is unclear from the statutory

                                          3
definition whether a conviction would include generic or non-generic burglary, for

example in those states where burglary could include entry into an automobile, a

trial court may also look to the indictment, information or jury instructions to

determine if the defendant was convicted of generic burglary. Id.; see also

Shepard v. United States, 544 U.S. 13, 26 (2005) (holding that the trial court may

examine the charging document, plea agreement, plea colloquy, or “some

comparable judicial record of this information”).

      Florida defines burglary as “entering a dwelling, a structure, or a

conveyance with the intent to commit an offense therein.” Fla. Stat. §

810.02(1)(b). 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

structure or conveyance is unoccupied. Fla. Stat. § 810.02(4).

      On its face, Florida’s third degree burglary statute is non-generic in at least

two regards. First, in addition to covering buildings and structures, it also

includes “conveyance” which is defined as a “motor vehicle, ship, vessel, railroad

vehicle or car, trailer, aircraft, or sleeping car.” See Fla. Stat. § 810.011(3).

Second, Florida defines “structure,” as it is used in the burglary statute, to include

the curtilage of the structure, which the Florida Supreme Court has construed

                                           4
narrowly to include some form of an enclosure around the structure. See State v.

Hamilton, 660 So. 2d 1038, 1044 (Fla. 1995); see also James v. United States, 550

U.S. 192, 212-13 (2007) (citing to Hamilton’s definition of curtilage and noting

that Florida’s definition of curtilage takes the offense of burglary outside of

Taylor’s definition of generic burglary).

      Here, Wheeler was convicted of burglary of a structure in each of the three

predicate offenses. Because Florida’s third degree burglary statute is non-generic,

we apply a modified categorical approach, looking past the statute to the

Information and Judgment of Conviction to determine if Wheeler’s convictions

still qualify as burglary for purposes of the ACCA. See United States v. Rainer,

616 F.3d 1212, 1215 (11th Cir. 2010) (explaining that when applying a modified

categorical approach a “conviction under a non-generic burglary statute still

counts as ‘burglary’ under the ACCA if the defendant was actually found guilty of

the elements of a generic burglary”). As was the situation in United States v.

Matthews, 466 F.3d 1271, 1274-75 (11th Cir. 2006), we cannot surmise from this

record whether Wheeler’s convictions were for burglary of the roofed portion of

the structures. Thus, we cannot state that he was convicted of the elements of

generic burglary and must determine whether his convictions under Florida’s third

degree burglary statute satisfy the ACCA’s residual clause of constituting a crime

                                            5
that “otherwise involves conduct that presents a serious potential risk of physical

injury to another[.]” § 924(e)(2)(B)(ii).

      We previously considered this precise question in Matthews, concluding

that even when the burglary takes place in the curtilage and not under the roofed

part of the structure, it “is indeed a crime that presents a serious potential risk of

physical injury to another.” Id. at 1275 (internal quotation marks omitted). We

noted that the burglar could come into contact with the property’s owners or

occupants and that his presence alone could be considered threatening and lead to

violence. Id. Accordingly, the Matthew’s Court concluded that Florida’s offense

of third degree burglary qualified as a violent felony under the residual clause of

the ACCA. Id.

      Since the time of our decision in Matthews, the Supreme Court has rendered

several other decisions, including James, 550 U.S. at 209; Begay v. United States,

553 U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122 (2009), that

further address the ACCA’s residual clause. Based on this Supreme Court

precedent, our circuit now applies a three-step test to determine if an offense

involves conduct that presents a serious potential risk of physical injury to

another. See United States v. Harris, 608 F.3d 1222, 1227 (11th Cir. 2010). We

first take a categorical approach, reading the statute itself to determine how the

                                            6
crime is ordinarily committed. Id. Based on this understanding of the offense, we

ask (1) “whether the crime poses a ‘serious potential risk of physical injury’ that is

similar in degree to the risks posed by the enumerated crimes”; (2) then “examine

. . . whether that crime was similar in kind and in degree to the enumerated

crimes”; and (3) finally ask “whether the conduct at issue in the statute is

‘purposeful, violent and aggressive.’” Id. And most recently, the Supreme Court

clarified in Sykes v. United States, ___ U.S. ___, ___;131 S. Ct. 2267, 2275

(2011), that it is the “levels of risk [that] divide crimes that qualify from those that

do not,” noting that “[t]he phrase ‘purposeful, violent, and aggressive’ [as used in

Begay] has no precise textual link to the residual clause, which requires that an

ACCA predicate ‘otherwise involve conduct that presents a serious potential risk

of physical injury to another.’”

      Because we cannot state that any of the Supreme Court’s recent decisions

abrogate our holding in Matthews that a conviction under Florida’s third degree

burglary statute qualifies as a violent felony under the ACCA’s residual clause, we

cannot state that the district court erred in sentencing Wheeler as armed career

criminal based on his three convictions for third degree burglary in Florida.

      AFFIRMED.




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