US v. Gregory McLeod

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 4:13-cr-01013-MGL-1. [999689386]. [14-4766]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4766

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY MCLEOD,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence.
Mary G. Lewis, District Judge.
(4:13-cr-01013-MGL-1)

Argued:

September 17, 2015

Decided:

October 30, 2015

Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published
opinion. Judge Niemeyer wrote the opinion, in which Judge Shedd
and Judge Keenan joined.

ARGUED: Michael A. Meetze, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Florence, South Carolina, for Appellant.
Benjamin
Neale Garner, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
ON BRIEF: William N. Nettles,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.

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NIEMEYER, Circuit Judge:
After
firearm

Gregory

by

a

McLeod

convicted

pleaded
felon,

guilty
in

to

possession

violation

of

18

of

a

U.S.C.

§ 922(g)(1), the district court sentenced him to 188 months’
imprisonment, having applied a sentencing enhancement under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

ACCA

mandates a 15-year minimum sentence for defendants with three
previous “violent felony” convictions, including convictions for
burglary.

To satisfy the predicate convictions requirement of

ACCA, the district court relied on McLeod’s five convictions in
1998

for

committing

second-degree

burglary

in

Dillon,

South

Carolina, in violation of South Carolina Code § 16-11-312.

The

indictment in each of those cases charged McLeod with breaking
and entering a commercial building with the intent to commit a
crime.
On appeal, McLeod contends that the district court erred in
applying

the

ACCA

enhancement

in

two

respects.

First,

he

contends that because the predicate offenses were not charged in
the indictment in this case, his conviction for simply violating
§ 922(g)(1) did not support the sentence imposed, violating his
Fifth and Sixth Amendment rights.

Second, he contends that his

1998 South Carolina convictions for second-degree burglary did
not

qualify

as

“violent

felonies”

under

ACCA

because

the

statutory elements of those convictions, as well as the relevant
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state court records, did not limit those convictions to generic
burglary,

which

structure,

see

(1990),

but

is

breaking

Taylor

rather

v.

allowed

and

entering

United
the

States,

into

a

495

U.S.

possibility

that

building

he

or

575,

599

had

been

convicted of breaking and entering into a vehicle, watercraft,
or aircraft.

Because a conviction for breaking and entering

into a vehicle, watercraft, or aircraft would not be considered
generic burglary, it would not qualify as a predicate offense
under ACCA.
We conclude that McLeod’s first argument lacks merit, as it
is foreclosed by the Supreme Court’s decision in AlmendarezTorres v. United States, 523 U.S. 224 (1998).

But we conclude

that his second argument does have merit, as the evidence that
the government offered with respect to at least four of his five
burglary

convictions

did

not

show

that

they

qualified

as

“violent felonies” under ACCA because the government was unable
to

demonstrate

that

the

object

of

each

conviction

was

necessarily a building or structure, as distinct from a vehicle,
boat, or airplane.

Accordingly, we affirm his conviction but

vacate his sentence and remand for resentencing.

I
In May 2014, McLeod pleaded guilty to unlawfully possessing
a firearm, in violation of 18 U.S.C. § 922(g)(1).

3

Because the

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presentence

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report

showed

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that

McLeod

had

five

previous

convictions for second-degree burglary, in violation of South
Carolina

Code

§

16-11-312,

the

district

court

concluded

at

sentencing that those convictions were for “violent felonies”
and that McLeod therefore qualified as an armed career criminal,
requiring the court to impose a sentence of at least 15 years’
imprisonment.
those
with

18 U.S.C. § 924(e).

convictions,
willfully

nighttime

--

the

and

namely,

underlying

unlawfully
the

With respect to four of
indictments

entering

Cottingham

ABC

a

charged

“building”
Store,

the

McLeod
in

the

Rippetoe

Canvas Company, the Dillon Company, and Walmart, respectively -with the intent to commit a crime.
indictments

charged

McLeod

with

The parties agree that those
second-degree

burglary

of

a

building, in violation of South Carolina Code § 16-11-312(B).
During the sentencing hearing, McLeod’s attorney stated to
the court:
Judge, we don’t have any objections to the guideline
calculations like in the [presentence] report, but
there are a couple things that Mr. McLeod wanted me to
raise.
He wanted me to object to say that the Government
should have -- should have been required to name his
predicate offenses in the indictment, and he wanted me
to object to say that South Carolina burglary second
offenses shouldn’t count as violent felonies [under
ACCA].
And I’ve explained to him that that is not the law
right now as to both of those issues.
But he wanted
me to make those with the understanding that Your
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Honor would overrule those today, but he wanted me to
pursue those on appeal to see if any court would
revisit these issues and maybe make a change in the
law.
As

anticipated,

the

district

court

overruled

McLeod’s

objections, applied the ACCA enhancement, and sentenced him to
188 months’ imprisonment.
On appeal, McLeod argues the two issues he preserved:

(1)

that the district court should not have been able to enhance his
sentence under ACCA because the government did not include his
predicate convictions in the indictment and (2) that his 1998
South

Carolina

qualify

as

convictions

“violent

for

felonies”

second-degree
for

ACCA

burglary

do

not

sentence-enhancement

purposes.

II
McLeod
included

contends

the

prior

first

that

convictions

the
that

government
were

the

should

basis

for

have
his

sentencing enhancement in the indictment and proved them to a
jury and that the government’s failure to do so violated his
Fifth

and

argument

Sixth
is

Amendment

foreclosed

by

rights.
the

He

Supreme

recognizes
Court’s

that

decision

his
in

Almendarez-Torres, but he argues that that case was “incorrectly
decided.”

He also recognizes that we are bound by Almendarez-

Torres, raising the argument only to preserve it for further
review by the Supreme Court.
5

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Because

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Almendarez-Torres

is

still

controlling

law,

we

erred

in

affirm the district court’s rejection of this argument.

III
McLeod

also

contends

that

the

district

court

relying on his 1998 South Carolina convictions for second-degree
burglary to enhance his sentence under ACCA, maintaining that
the convictions do not qualify as predicate convictions under
ACCA.
was

He argues that the elements of the offense for which he
convicted

in

South

Carolina

are

broader

than

generic

burglary because the statute prohibits not only the breaking and
entering of a building or structure but also of other “edifices
and things.”

As he points out more specifically, the statute of

conviction also prohibits breaking and entering into vehicles,
boats, or planes.

He argues accordingly that the convictions

cannot serve as predicate burglary convictions, which must be
limited to breaking and entering into a building or structure.
See Taylor, 495 U.S. at 599.
The

government

contends

that

McLeod’s

previous

South

Carolina convictions qualify as predicate offenses under ACCA
because the relevant indictments show that his convictions were
for

“burglary

of

a

building,”

which

matches

the

generic

definition of burglary announced by the Supreme Court in Taylor.
Applying the modified categorical approach to analyze McLeod’s

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predicate

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offenses,

as

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authorized

by

Taylor

and

Descamps

v.

United States, 133 S. Ct. 2276, 2283-85 (2013), the government
argues that “[e]ach of the state indictments demonstrates that
the

State

charged

McLeod

under

the

building

section

of

the

second-degree burglary statute [§ 16-11-312(B)], conspicuously
noting

the

particular

building

burglarized

and

that

the

burglaries occurred during the nighttime.”
As applicable to the issues in this case, ACCA provides
that any person convicted under 18 U.S.C. § 922(g) who “has
three previous convictions . . . for a violent felony . . .
shall be . . . imprisoned not less than fifteen years.”

18

U.S.C.

to

§

924(e)(1).

And

a

“violent

felony”

is

defined

include the crime of burglary when punishable by imprisonment
for a term exceeding one year.
The

Supreme

Court

has

Id. § 924(e)(2)(B)(ii).
concluded

that,

when

Congress

included burglary as a predicate offense in ACCA, it intended to
refer to a generic definition of burglary.
589, 599.

Taylor, 495 U.S. at

The Court rejected arguments that sentencing courts

could use any state definition of burglary, noting the problems
that would result from wide variations in the definition.
at 590-91.

Id.

It explained that Congress intended to use “uniform,

categorical definitions to capture all offenses of a certain
level of seriousness that involve violence or an inherent risk
thereof.”

Id. at 590 (emphasis added).
7

Addressing burglary in

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particular,
“unlawful

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the
or

Taylor

Court

unprivileged

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defined

entry

generic

into,

or

burglary

remaining

building or structure, with intent to commit a crime.”

as

an

in,

a

Id. at

599.
Because Congress intended for courts to use a categorical
approach when determining whether a prior conviction was for
generic burglary, id. at 588-89, the Taylor Court instructed
that, in following that approach, a sentencing court may rely
only on the statutory elements of the burglary conviction and
the fact of conviction and may not rely on the particular facts
underlying the conviction, see id. at 600-02; see also Descamps,
133 S. Ct. at 2283.

When, however, a statute defines burglary

with alternative elements such that one alternative corresponds
to generic burglary and another does not, a sentencing court may
apply the “modified categorical approach,” which allows it to
examine certain court records or documents to determine whether
the

defendant

alternative

was

form

convicted

of

predicate offense.

of

generic

burglary

that

would

burglary
not

qualify

or
as

an
a

See Descamps, 133 S. Ct. at 2281; Nijhawan

v. Holder, 557 U.S. 29, 35 (2009); Shepard v. United States, 544
U.S. 13, 16 (2005).

Those documents are generally limited to

the “charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial

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judge to which the defendant assented.”

Shepard, 544 U.S. at

16.
In

Nijhawan,

similar

to

the

the

Court

South

addressed

Carolina

a

statute

burglary

in

this

statute,

case,

that

criminalized “Breaking and Entering at Night” in any one of four
locations:
35.

a “building, ship, vessel or vehicle.”

557 U.S. at

It “recognized that when a statute so ‘refer[s] to several

different

crimes,’

not

all

of

which

qualify

as

an

ACCA

predicate, a court must determine which crime formed the basis
of the defendant’s conviction.”

Descamps, 133 S. Ct. at 2284

(quoting Nijhawan, 557 U.S. at 35).

Similarly, in Johnson v.

United States, the Court reaffirmed that, “[w]hen the law under
which

the

defendant

has

been

convicted

contains

statutory

phrases that cover several different generic crimes, . . . the
‘modified

categorical

determine

which

approach’

statutory

.

phrase

.

.

was

permits
the

a

court

basis

for

to
the

conviction by consulting the trial record -- including charging
documents,

plea

agreements,

transcripts

of

plea

colloquies,

findings of fact and conclusions of law from a bench trial, and
jury instructions and verdict forms.”
(quoting

Nijhawan,

omitted)).
the

557

U.S.

at

41

559 U.S. 133, 144 (2010)
(internal

quotation

marks

As the Descamps Court explained, “the job . . . of

modified

alternatives,

approach
the

crime

[is]
of

to

identify,

conviction
9

so

from

among

that

the

several

court

can

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compare

it

to

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the

generic

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offense.”

133

S.

Ct.

at

2285

(emphasis added).
In

this

case,

McLeod

was

charged

with

second-degree

burglary of a building under South Carolina Code § 16-11-312(B),
which provides in relevant part:
(B)

A person is guilty of burglary in the second
degree if the person enters a building without
consent and with intent to commit a crime
therein, and . . . :
(3)

(Emphasis

The entering
nighttime.

added).

The

312(B) exceeds one year.

or

remaining

sentence

for

a

occurs

violation

in

the

of

§ 16-11-

S.C. Code Ann. § 16-11-312(C). ∗

While

this statutory language appears at first glance to parrot the
language of generic burglary, as defined in Taylor, the statute
defines the term “building” to include “any structure, vehicle,
watercraft, or aircraft,” id. § 16-11-310(1), providing elements
alternative

to

generic

burglary.

In

this

circumstance,

the

district court was allowed to employ the modified categorical
approach, which allowed it to consider the charging document to
identify the crime of conviction.

See Descamps, 133 S. Ct. at

2284; Nijhawan, 557 U.S. at 35; Taylor, 495 U.S. at 602.

∗

South Carolina Code § 16-11-312(C) was amended in 2010,
but the version of the statute in effect at the time of McLeod’s
offenses authorized a term of imprisonment exceeding one year
for second-degree burglary.
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In

this

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case,

the

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government

claims

that

because

the

charging document excluded vehicles, watercraft, or aircraft and
noted that McLeod was charged only with entering a building,
specifically

naming

the

building

in

each

case,

the

district

court did not err in considering McLeod’s second-degree burglary
convictions as predicate offenses under ACCA.
The problem with the government’s position, however, arises
from evidence revealed by the parties’ second supplemental joint
appendix,

which

briefing

in

filed

this

case

joint

supplemental
sentencing

they

with

appendix

for

had

been

the

four

charged

that

McLeod

court

long

completed.

contained

showing

considering,

the

did

That

McLeod’s

burglaries
not

after

plea
that

plead

the

second
to

and

we

are

guilty,

as

charged, to second-degree burglary of a building under § 16-11312(B), which is a crime characterized by South Carolina law as
“violent.”
guilty

to

See S.C. Code Ann. § 16-1-60.
“nonviolent”

second-degree

Instead, he pleaded

burglary.

Although

the

plea and sentencing record do not cite the specific statutory
subsection that McLeod pleaded guilty to violating, only § 1611-312(A) (second-degree burglary of a “dwelling”), not § 16-11312(B)

(second-degree

characterized
degree

as

burglary

burglary

“nonviolent”
law.

See

of

under
id.

a

South

“building”),
Carolina’s

§ 16-1-70.

is

second-

Apparently

by

agreement, McLeod was allowed to plead guilty to the different
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crime of nonviolent burglary, which could benefit him in the
future with respect to certain sentencings.

See, e.g., S.C.

Code Ann. § 16-3-20(C)(b)(1) (requiring judges in capital cases
to

instruct

defendant

as

to

has

conviction

the

no

mitigating

significant

involving

the

use

circumstance

history
of

of

violence

that

“[t]he

prior

criminal

against

another

person”); State v. Rogers, 527 S.E.2d 101, 103-04 (S.C. 2000).
Because McLeod pleaded guilty to second-degree burglary of a
dwelling under § 16-11-312(A) and not the crime charged in the
indictment

under

§

16-11-312(B),

the

indictment

becomes

irrelevant for determining the crime of conviction.
The statute under which McLeod pleaded guilty, § 16-11312(A), provides:
A person is guilty of burglary in the second degree if
the person enters a dwelling without consent and with
intent to commit a crime therein.
(Emphasis added).

Again, the sentence for a violation of § 16-

11-312(A) exceeds one year.

See S.C. Code Ann. § 16-11-312(C).

The word “dwelling” is defined to include “the living quarters
of

a

building

which

is

used

or

living, or lodging by a person.”
added).
vehicle,

normally

used

for

sleeping,

Id. § 16-11-310(2) (emphasis

And “building” is defined to include “any structure,
watercraft,

Consequently,

with

his

or

aircraft.”

plea

agreement,

Id.

§

McLeod

16-11-310(1).
was

convicted

under South Carolina law of burglarizing a “dwelling” that could
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have been “any structure, vehicle, watercraft, or aircraft,” so
long

as

a

person

“used

or

normally

used”

the

location

for

“sleeping, living, or lodging.”
While the modified categorical approach again would allow
the

district

court

§ 16-11-312(A)
government

to

determine

involved

presented

whether

generic

McLeod’s

nongeneric

“charging

no

or

document,

plea

under

burglary,
written

the
plea

agreement, transcript of plea colloquy, or any explicit factual
finding by the trial court to which the defendant assented” to
show

that

the

crime

of

Shepard, 544 U.S. at 16.
that

McLeod

burglary,

pleaded

which,

conviction

generic

burglary.

The relevant documents indicate only

guilty

under

was

to

South

“nonviolent”

Carolina

law,

second-degree
can

only

burglary of a “dwelling,” as prohibited by § 16-11-312(A).
the

plea

did

not

incorporate

any

facts,

and

the

mean
But

buildings

described in the indictments relate to the different offense
under

§ 16-11-312(B).

Because

we

cannot

determine

whether

McLeod pleaded guilty to generic burglary with respect to four
of his 1998 burglary convictions, they cannot serve as predicate
offenses under ACCA.
Although
purported

the

government

violations

of

§

devoted

its

16-11-312(B),

brief
as

to

charged

McLeod’s
in

the

indictments, it notes in a footnote to its brief that, even if
McLeod’s

prior

convictions

were
13

under

§

16-11-312(A),

they

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nonetheless

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would

be

for

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generic

burglary,

because

we

so

concluded in United States v. Wright, 594 F.3d 259, 266 (4th
Cir. 2010).

In Wright, we observed, without more, that the

language of § 16-11-312(A) “tracks the generic definition of
burglary set forth by the Supreme Court in Taylor” and therefore
concluded

that

“South

Carolina’s

burglary

statute

[§

16-11-

312(A)] falls within the ACCA’s list of prior offenses.”

Id.

The holding in Wright, however, did not focus on that issue, as
it was not briefed and argued to the court.

Rather, the issue

in Wright was whether the defendant was carrying a firearm when
he concededly stole firearms from homes.
only

question

is

whether

as

a

See id. at 265 (“[T]he

definitional

matter

Wright

‘carried’ firearms when he admittedly stole them from homes on
three

separate

occasions”).

“carry” firearms

such

that

In
his

concluding

convictions

that
could

Wright
be

used

did
to

enhance his sentence under ACCA, we began the analysis by simply
observing what was not challenged -- i.e., that the language of
§ 16-11-312(A) tracked the language of generic burglary.
266.

Id. at

That passing comment, however, never discussed whether

§ 16-11-312(A) was broader than generic burglary in light of the
definition of “dwelling” given by the statute; the defendant
conceded

the

fact

that

“homes”

were

involved.

In

these

circumstances, we conclude that the government can draw little
comfort from our passing observation that the statutory language
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tracked the definition of burglary as given in Taylor.

See

United States v. Hemingway, 734 F.3d 323, 335 (4th Cir. 2013)
(applying a similar analysis of Wright).
For the reasons given, we affirm McLeod’s conviction but
vacate his sentence and remand for resentencing.

IT IS SO ORDERED.

15