United States v. Billy Thorne

837 F.3d 888, 2016 U.S. App. LEXIS 16861, 2016 WL 4896375

• Court: Court of Appeals for the Eighth Circuit
• Decided: September 15, 2016
• Docket: 15-1249
• Status: Published

Opinion

PER CURIAM.

A jury convicted Defendant Billy D. Thorne of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Over objection, he was found to have been previously convicted of three or more “violent felon[ies]” and was sentenced as an Armed Career Criminal, 18 U.S.C. § 924(e)(1). Thorne appeals, challenging only the Armed Career Criminal determination and resulting sentence.

Several of Thorne’s prior felony convictions were for., violating Fla. Stat. § 810.02(3) (1995), second degree burglary of a dwelling. If these convictions do not qualify as convictions for violent felonies, Thorne has not been shown to have three qualifying prior convictions' and 18 U.S.C. § 924(e)(1) should not apply.

In supplemental briefing ordered after the Supreme Court issued its opinion in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), the government concedes that Fla. Stat. § 810.02 does not qualify as a violent felony. This concession is consistent with the government’s position in briefing to the Eleventh Circuit in -United States v. Esprit, No. 14-13066 (11th Cir. July 6, 2016). In particular, the government concludes the burglary statute in question, as interpreted by the Florida Supreme Court, is overinclusive but non-divisible. It encompasses entry onto the curtilage of a building without separating entry into a building and entry onto curtilage as separate elements of different offenses.

There is no crime denominated burglary of a curtilage; the curtilage is not a separate location wherein a burglary can occur. Rather, it is an integral part of the structure or dwelling that it surrounds. Entry onto the curtilage is, for the ■ purposes of the burglary statute, entry into the structure or dwelling.

Baker v. State, 636 So.2d 1342, 1344 (Fla. 1994); see also United States v. Matthews, 466 F.3d 1271, 1274 (11th Cir. 2006) (“Florida does not consider burglary of the curtilage of a structure to be a crime distinct from burglary of that structure. ...”).

We therefore vacate Thorne’s sentence and remand for resentencing without use of the Florida convictions for second degree burglary of a dwelling for enhancement purposes under § 924(e).