United States v. Billy Thorne ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1249
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Billy D. Thorne
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Ft. Dodge
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Submitted: September 2, 2016
Filed: September 15, 2016
[Published]
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Before SMITH, MELLOY, and COLLOTON, Circuit Judges.
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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, 136 S. Ct. 2243 (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
. . . .”).
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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).
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