Submitted: November 12, 2019
from United States District Court for the Western District of
Missouri - Springfield.
SHEPHERD, GRASZ, and KOBES, Circuit Judges.
William Silva pleaded guilty to possession of a firearm as a
convicted felon in violation of 18 U.S.C. § 922(g)(1).
The district court found he was a career offender under the
Armed Career Criminal Act, 18 U.S.C. § 924(e), because
he had two state convictions for serious drug offenses and a
state burglary conviction that was a violent felony. He was
sentenced to 15 years in prison (the minimum sentence for a
career offender) followed by five years of supervised
release. He appeals, challenging the district court's
finding that his burglary conviction was under Miss. Code
§ 97-17-23 and therefore an ACCA predicate offense. We
"violent felony" under the ACCA includes any state
or federal felony that "is burglary, arson, or
extortion." 18 U.S.C. § 924(e)(2)(B)(ii). To decide
whether a state conviction qualifies as generic burglary,
courts apply the categorical approach, looking "only to
the fact of conviction and the statutory definition of the
prior offense." United States v. Shockley, 816
F.3d 1058, 1062 (8th Cir. 2016). However, before applying the
categorical approach, the district court must determine the
statute of conviction. See United States v. Twiggs,
678 F.3d 671, 674 (8th Cir. 2012). This is a factual finding
that we review for clear error. Id.
are two possible statutes of conviction for Silva's
burglary offense (called "Burglary & Larceny"
on the judgment and the "notice of criminal
disposition" reviewed by the district
court). One, Miss. Code § 97-17-23, defines
burglary as "breaking and entering the dwelling house or
inner door of such dwelling house of another . . . with
intent to commit some crime therein," and can result in
up to 25 years in prison. The other, Miss. Code §
97-17-33(1), defines burglary as the breaking and entering of
structures other than a dwelling house, and can be punished
by up to seven years in prison. The parties agree that §
97-17-23 describes generic burglary while § 97-17-33(1)
is overbroad and not an ACCA predicate offense.
district court considered three documents attesting to
Silva's conviction to determine that he had been
convicted under § 97-17-23. First, a Lee County Circuit
Court Order, dated February 15, 2000, entering judgment
against him on a guilty plea of "Burglary &
Larceny," and "sentenc[ing him] to serve a term of
twenty-five (25) years" in prison, suspending 15 years.
Second, an indictment, dated October 25, 1999, to which he
pleaded "guilty as charged," charging him with
"willfully, feloniously and burglariously break[ing] and
enter[ing] a certain dwelling . . . with the felonious and
burglarious intent to take, steal, and carry away  goods,
chattels and personal property . . . ." Third, a notice
of criminal disposition to the Mississippi Department of
Corrections, dated February 24, 2000, recording a single
conviction for "Burglary & Larceny." No
document references the statute of conviction.
district court did not commit clear error in deciding that
Silva was convicted for violating § 97-17-23. The
indictment tracks the language of that statute by describing
his crime as breaking into a dwelling, not one of the other
structures listed in § 97-17-33(1) and the judgment
notes that he pleaded "guilty as charged" in the
indictment. Plus, his 25-year sentence is only possible under
Silva has not offered any other explanation for his
conviction and sentence, he argues against "reasoning
backward" in this way. Specifically, Silva claims that
determining the statute of conviction based on the sentence
and language in the indictment and plea does not comport with
"'Taylor's demand for certainty'
when determining whether a defendant was convicted of a
generic offense." Mathis v. United States, 136
S.Ct. 2243, 2257 (2016) (quoting Shepard v. United
States, 544 U.S. 13, 21 (2005)). However, the
"demand for certainty" refers to our need to be
certain, when applying the modified categorical approach,
that a given conviction represents a finding that a defendant
committed the generic version of a crime. The modified
categorical approach is separate from the factual inquiry
into the statutory basis of a conviction that is at issue
here. Twiggs, 678 F.3d at 676. In this context, we
affirm if the district court did not clearly err, even though
records may not establish the statute of conviction
"with complete clarity." Id. at 675.
documents reviewed by the district court show that Silva
broke into a dwelling and committed the crime of larceny.
That conduct is criminalized by Miss. Code § 97-17-23.
The elements of § 97-17-23 describe the generic offense
of burglary. Therefore, the district court correctly
classified Silva as a career offender and his sentence is
 The Honorable Roseann A. Ketchmark,
United States District Judge for the Western District of