United States v. Richard Mathis

United States Court of Appeals
For the Eighth Circuit
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No. 14-2396
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Richard Mathis
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: December 9, 2014
Filed: May, 12, 2015
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Before LOKEN, BYE, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Richard Mathis was convicted for being a felon in possession of a firearm and
received an enhanced sentence under the Armed Career Criminal Act (ACCA), which
applies to felons guilty of possession of a firearm who have three prior violent felony
convictions. The district court1 also imposed special conditions of supervised release
usually reserved for convicted sex offenders. Mathis appeals his sentence and the
special conditions of supervised release. We affirm.
I. Background
On February 15, 2013, a 15-year-old boy named K.G. went missing. While
missing, the boy stayed at Mathis's house. K.G. alleged that, during this time, Mathis
forcibly molested him. On February 25, 2013, police officers tracked K.G.'s cell phone
to Mathis's house. Mathis's girlfriend, who also stayed at the house, answered the door
and told officers that Mathis was not home and that she did not know K.G.'s
whereabouts. She later admitted that she lied to the officers; in fact, Mathis, K.G., and
two other young males were present in the house. Later that night, Mathis took K.G.
to his grandmother's house. On March 3, 2013, K.G. disclosed Mathis's alleged sexual
abuse to officers.
The officers obtained several warrants to search Mathis's residence. On March
8, 2013, they executed the warrants and found a loaded rifle and ammunition. The
officers also found a cell phone with nearly 6,000 text messages on it. Many of the
messages were between Mathis and young males whom he had met on Meetme.com,
the same social networking site through which K.G. had met Mathis. Several of the
text messages were sexually explicit. These text messages showed that Mathis had
traveled far to bring some of the young males whom he met on Meetme.com back to
his residence. Additionally, a memory card was recovered during the search, which
contained a picture of a nude underage male. Investigators also questioned Mathis's
girlfriend. She admitted that she lied to officers on their February 25th visit. Mathis's
girlfriend also stated that she believed that Mathis was having sexual intercourse with
the boys whom he routinely brought to his house. One of the other victims, an 18-
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
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year-old male, told the officers that Mathis asked him about masturbation, asked him
about the size of his genitals, and made several sexually explicit comments.
Police arrested Mathis on March 8, 2013, at his place of employment. While in
custody, Mathis admitted that he owned the rifle and ammunition. Mathis also freely
admitted that the officers might find child pornography on his computer and that he
had visited websites to view and visit with young-looking homosexual males.
Mathis was indicted for one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1), to which he pleaded guilty on January 21, 2014,
in accordance with a plea agreement.
At Mathis's sentencing hearing, the court first considered whether the ACCA
(18 U.S.C. § 924(e)) applied to Mathis. If Mathis possessed three prior convictions for
"violent felonies," the ACCA would impose a 15-year mandatory minimum sentence.
Id. After extensive oral argument and consideration of the Supreme Court's and this
court's precedent, the district court ultimately found that Mathis's five burglary
convictions in Iowa were violent felonies and justified sentencing under the ACCA.
The court found that the Iowa burglary statutes in question, Iowa Code §§ 713.1 and
713.5, were divisible under Descamps v. United States, 133 S. Ct. 2276 (2013). Under
Descamps, the court believed it could use the modified categorical approach to
determine the particular elements of the specific burglary provision under which
Mathis was convicted. Additionally, the court found that the burglaries were violent
felonies under the ACCA's residual clause because they were substantially similar to
generic burglary and posed the same risk of harm to others. Finally, the court found
Mathis's prior conviction in Iowa for interference with official acts inflicting serious
injury was also a violent felony for ACCA purposes. As a result of the ACCA
enhancement, Mathis was sentenced to the mandatory minimum of 180 months'
imprisonment with five years of supervised release.
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As part of the supervised release, the court imposed special release conditions
routinely applied to sex offenders. The court heard testimony from two law
enforcement officers that detailed Mathis's interest in young males. In addition to the
information pertaining to the instant offense, the officers also disclosed a similar
investigation in 1990. Then, two missing young boys, after their recovery, told police
that they had been staying in Mathis's trailer. Considering this testimony, even though
Mathis had never been convicted of a sex crime, the court found that the conditions
of supervised release were appropriate to protect the public from Mathis.
II. Discussion
Mathis argues on appeal that his prior convictions for second-degree burglary
are not violent felonies under the ACCA. He also challenges the imposition of sex-
offender-related special conditions of supervised release.
A. Application of the ACCA
Mathis first argues that the district court erred by finding that the Iowa burglary
statute was divisible and by applying the modified categorical approach to determine
the nature of his convictions. This error, Mathis argues, led the district court to
erroneously conclude that his five previous burglary convictions were violent felonies
for ACCA purposes.2
We review de novo whether a prior state-court conviction constitutes a violent
felony for ACCA purposes. United States v. Pate, 754 F.3d 550, 553–54 (8th Cir.
2014) (citation omitted). The ACCA enhances the sentences of those defendants found
2
Mathis does not appeal the district court's finding that his previous Iowa
conviction for interference with official acts inflicting serious injury constitutes one
of the three predicate violent felonies required to apply the ACCA. Consequently, we
consider this issue abandoned on appeal and will not disturb this finding. See United
States v. Batts, 758 F.3d 915, 916 n.2 (8th Cir. 2014) (an argument raised before the
district court but not raised on appeal is considered abandoned).
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guilty of being a felon in possession of a firearm that have three previous convictions
for "violent felon[ies]." 18 U.S.C. § 924(e)(1). As defined by the statute, a violent
felony is one that "(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or (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).
Accordingly, Mathis contends that none of his convictions for burglary in Iowa
qualify as a "burglary" as contemplated in the ACCA.
In the typical case, we use the "categorical approach" to determine whether
prior convictions amount to violent felonies. See Descamps, 133 S. Ct. at 2283. This
approach requires courts to "look only to the fact of conviction and the statutory
definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602 (1990)
(footnote omitted). Thus, in cases where prior convictions are for one of the named
offenses in § 924(e)(2)(B)(ii), we look only at the elements of the offense as defined
by the state statute to discern whether the nature of the state crime fits within the
generic definition of the crime considered by the federal statute. For burglary, the
Court has defined the generic crime as "having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to commit
a crime." Id. at 599. Therefore, if the state statute is "narrower than the generic view,"
a conviction under such statute would qualify as a violent felony for ACCA purposes
"because the conviction necessarily implies that the defendant has been found guilty
of all the elements of generic burglary." Id.
There are a "narrow range of cases," however, in which state statutes present
the necessary elements for conviction in the alternative. See Descamps, 133 S. Ct. at2283–84. These alternatives, as presented in the statute, lay out one set of elements
that would fit within the generic crime and another set of elements that would not. See
id., 133 S. Ct. at 2283–84; see also United States v. Howard, 742 F.3d 1334, 1343
(11th Cir. 2014). These divisible statutes can thus be divided into alternative elements,
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which may in some cases constitute violent felonies, but other times may not. When
approaching divisible statutes, courts are allowed to go one step further than the
categorical approach to apply the "modified categorical approach." Descamps, 133 S.
Ct. at 2283–84. This tool allows courts to examine certain documents (such as
charging papers and jury instructions) to determine under which set of alternative
elements the defendant was convicted. Id. at 2284–86. Courts can then use their
findings to properly determine whether prior convictions are violent felonies. Id. at
2284.
In Descamps, the Court attempted to clarify divisibility, but as Justice Kennedy
observed, this "dichotomy between divisible and indivisible state criminal statutes is
not all that clear." Id. at 2293 (Kennedy, J., concurring). Applying Taylor, the Court
proposed a hypothetical state burglary statute that otherwise conformed with generic
burglary, but also swept more broadly by criminalizing the "'entry of an automobile
as well as a building.'" Id. at 2284 (quoting Taylor, 495 U.S. at 602). The statute in
Taylor was a divisible statute because it presented an alternative set of elements, one
of which conformed with generic burglary—entry into a building—and one of which
did not—entry into an automobile. When dealing with a divisible statute, courts can
then use the modified categorical approach to glean from certain approved documents
of which set of elements the defendant was prosecuted and found guilty.
The Court's hypothetical became reality in Shepard v. United States, 544 U.S.
13 (2005). Shepard dealt with the divisibility of a Massachusetts burglary statute that
criminalized "entries into 'boats and cars' as well as buildings." Descamps, 133 S. Ct.
at 2284 (citing Shepard, 544 U.S. at 17); see also Mass. Gen. Laws ch. 266, §§ 16, 18
(2000). "No one could know, just from looking at the statute, which version of the
offense [the defendant] was convicted of" in his guilty plea. Descamps, 133 S. Ct. at
2284. Thus, the Court used the modified categorical approach. In doing so, the Court
delineated the scope of the modified categorical approach: "It was not to determine
'what the defendant and state judge must have understood as the factual basis of the
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prior plea,' but only to assess whether the plea was to the version of the crime in the
Massachusetts statute (burglary of a building) corresponding to the generic offense."
Id. (quoting Shepard, 544 U.S. at 25).
Our court has also encountered state burglary statutes like the hypothetical in
Taylor and the convicting statute in Shepard. In United States v. Bell, we used the
modified categorical approach to determine which set of alternative elements the
defendant was convicted for in his prior conviction under the Missouri second-degree
burglary statute. 445 F.3d 1086, 1090–91 (8th Cir. 2006). Under the Missouri statute,
"a person commits second-degree burglary when he 'knowingly enters unlawfully or
knowingly remains unlawfully in a building or inhabitable structure for the purpose
of committing a crime therein.'" Id. at 1090 (quoting Mo. Rev. Stat. § 569.170). The
term "inhabitable structure" was elsewhere defined in the statute to "include ships,
airplanes, and vehicles." Id. (citing Mo. Rev. Stat. § 569.010(2)). Recognizing that this
statute was precisely the kind that the Court considered in its hypothetical in Taylor,
we relied upon portions of the defendant's presentence investigation report that were
deemed admitted. Id. The report recorded that the defendant's prior conviction under
the Missouri statute was for burgling a building. Id. Thus, we concluded that the
defendant's "prior commercial burglary conviction was . . . a generic burglary under
Taylor and therefore a crime of violence."3 Id. at 1091.We see nothing from
3
Bell's decision was in the context of determining whether the defendant's prior
second-degree burglary conviction was a "crime of violence" under U.S.S.G. §
2K2.1(a)(4)(A). The Guidelines make clear that the term "crime of violence" as used
in § 2K2.1(a)(4)(A) "has the meaning given that term in §4B1.2(a)." Id. § 2K2.1
cmt. 1. Further, we have long held that the terms "'violent felony' and 'crime of
violence' are virtually interchangeable in definition and interpretation." United States
v. Eason, 643 F.3d 622, 624 n.2 (8th Cir. 2011) (citing United States v. Williams, 537
F.3d 969, 971 (8th Cir. 2008)). Thus, cases that analyze the term "crime of violence"
in applying enhancements under §§ 2K2.1 and 4B1.1 of the Guidelines can be used
to inform analysis of the term "violent felony" in ACCA cases, and vice versa.
Consequently, Bell's "crime of violence" determination is relevant to the current
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subsequent Supreme Court opinions that overturn our application of the modified
categorical approach in Bell.
Shepard and Bell control the instant appeal. Mathis was previously convicted
five times in Iowa for second-degree burglary in violation of Iowa Code §§ 713.3 and
713.5.4 In Iowa, burglary is defined as follows:
Any person, having the intent to commit a felony, assault or theft therein,
who, having no right, license or privilege to do so, enters an occupied
structure, such occupied structure not being open to the public, or who
remains therein after it is closed to the public or after the person's right,
license or privilege to be there has expired, or any person having such
intent who breaks an occupied structure, commits burglary.
Iowa Code § 713.1 (1989) (emphasis added). Second-degree burglary is a burglary "in
or upon an occupied structure" in which no persons are present, the burglar "has
possession of an explosive or incendiary device or material" or other dangerous
weapon, "or a bodily injury results to any person." Id. § 713.5(1)(a) (emphasis added).
Second-degree burglary can also be committed if a person is present when the
burglary happens but the burglar does not have possession of any of the
aforementioned items and there is no bodily injury to any person. Id. § 713.5(1)(b).5
"violent felony" discussion.
4
Mathis's first conviction was in 1980 for second-degree burglary, in violation
of Iowa Code § 713.3; the other four convictions came in 1991, when the second-
degree burglary statute was found in § 713.5. Both parties acknowledge the burglary
statute was amended in 1984; for simplicity, the parties have agreed to argue on the
language as contained in the 1989 version of the statute, under which Mathis was
convicted for the second through fifth burglaries.
5
Iowa's statutes provide multiple means of committing second-degree burglary,
including (1) perpetrating the burglary when someone is present in the place being
burgled, (2) perpetrating the burglary when possessing certain items, or (3) if a bodily
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Thus, a conviction of burglary, at first glance, seems to fit within generic
burglary of "unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime." Taylor, 495 U.S. at 599. The Iowa statute,
however, sweeps more broadly than generic burglary because the term "occupied
structure" is defined elsewhere in the statute as:
[A]ny building, structure, appurtenances to buildings and structures,
land, water or air vehicle, or similar place adapted for overnight
accommodation of persons, or occupied by persons for the purpose of
carrying on business or other activity therein, or for the storage or
safekeeping of anything of value. Such a structure is an "occupied
structure" whether or not a person is actually present.
Iowa Code § 702.12. Consequently, it is impossible to know from looking at the
convicting statute which set of alternative elements Mathis was convicted of: a set of
elements that conforms with generic burglary—entry into a "building" or
"structure"—or a set of elements that does not—entry into a "land, water or air
vehicle." The statute exhibits the exact type of divisibility contemplated in Taylor and
later solved in Shepard and Bell. As in the latter mentioned cases, the modified
categorical approach is the proper tool to determine whether Mathis's prior
convictions are "violent felonies."
Mathis argues against this conclusion by asserting that the convicting statute
and definition of "occupied structure" do not present alternative elements, but instead
injury to any person occurs during the commission of the burglary. These alternative
elements, however, are irrelevant to divisibility because these alternatives have no
bearing on the statute's conformity to the generic burglary definition. "General
divisibility . . . is not enough; a statute is divisible for purposes of applying the
modified categorical approach only if at least one of the categories into which the
statute may be divided constitutes, by its elements, a crime of violence." United States
v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th Cir. 2013).
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simply present different types of occupied structures that can be burgled. Therefore,
"[t]he jurors need not all agree on whether" he burgled a building, a boat, or a car,
"because the actual statute requires the jury to find only" that he burgled an occupied
structure. Descamps, 133 S. Ct. at 2290. This argument amounts to the
means/elements distinction that was explicitly rejected in Descamps. Descamps held
that the Court's decisions in Taylor, Shepard, and Johnson "rested on the explicit
premise that the laws 'contain[ed] statutory phrases that cover several different . . .
crimes,' not several different methods of committing one offense." Id. at 2285 n.2
(alterations in original) (quoting Johnson, 559 U.S. at 144). The Court then instructed
that
[w]hatever a statute lists (whether elements or means), the documents we
approved in Taylor and Shepard . . . would reflect the crime's elements.
. . . When a state law is drafted in the alternative, the court merely resorts
to the approved documents and compares the elements revealed there to
those of the generic offense.
Id. (emphasis added). The Court's instruction clarifies the distinction between
elements and means in analyzing potentially divisible statutes.6 In the present case, the
6
We recognize the elements/means distinction is a matter that splits our sister
circuits. Compare United States v. Royal, 731 F.3d 333 (4th Cir. 2013) ("Rather than
alternative elements, then, 'offensive physical contact' and 'physical harm' are merely
alternative means of satisfying a single element of the Maryland offense."), and
Howard, 742 F.3d at 1348–49 (finding that a disjunctive "or" statement that listed
alternative places that could be burgled were "illustrative examples" and not
"alternative elements"), and Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014)
("To be clear, it is black-letter law that a statute is divisible only if it contains multiple
alternative elements, as opposed to multiple alternative means. Thus, when a court
encounters a statute that is written in the disjunctive (that is, with an 'or'), that fact
alone cannot end the divisibility inquiry." (citation omitted)), with United States v.
Prater, 766 F.3d 501, 510 (6th Cir. 2014) (finding a New York statute divisible when
it listed several alternative places that could be burgled in a disjunctive "or"
statement).
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term "occupied structure" reflects various places for unlawful entry that the statute
criminalizes by providing a disjunctive list of buildings that can be burgled under the
statute.7 Whether these amount to alternative elements or merely alternative means to
fulfilling an element, the statute is divisible, and we must apply the modified
categorical approach.
Upon examining the charging documents that correspond with Mathis's
burglary convictions, Mathis was charged with and convicted of entering garages in
relation to two of his burglary convictions. Because a garage is clearly a "building,"
we find that Mathis was convicted under the element of the Iowa burglary statute that
7
We also acknowledge another split in our sister circuits that is relevant for this
appeal: whether a court can consider a statute or subsection, outside of the convicting
statute, that defines a term in the convicting statute. Compare United States v.
Hockenberry, 730 F.3d 645, 669 (6th Cir. 2014) (consulting a different statute that
defined the term "occupied structure" to determine the divisibility of a Pennsylvania
burglary statute), and United States v. Herrera-Alvarez, 753 F.3d 132, 139–40 (5th
Cir. 2014) (consulting a different statute that defined the term "dangerous weapon"
to determine the divisibility of a Louisiana battery statute), and United States v. Trent,
767 F.3d 1046, 1056 (10th Cir. 2014) (consulting other statutes cross-referenced in
a conspiracy statute to determine divisibility), cert. denied, No. 14-7762, 2015 WL
732162 (U.S. Feb. 23, 2015), with United States v. Simmons, — F.3d —, 2015 WL
1499310, at *4-5 (9th Cir. April 3, 2015) (declining to consult a separate statute that
defined the term "custody" in a Hawaii escape statute).
Our case law allows such cross-referencing to definitions of defined terms
outside the convicting statute. See, e.g., United States v. Martinez, 756 F.3d 1092,
1095–96 (8th Cir. 2014) (finding that Ariz. Rev. Stat. § 13-3102(A) was divisible
because of "the fourteen subsections of Ariz. Rev. Stat. § 13-3102(A) and the
numerous disjunctive definitions of the relevant terms defined in Ariz. Rev. Stat. § 13-
3101(A)." (emphasis added)); Bell, 445 F.3d at 1090 (consulting a separate section of
the convicting statute for the definition of the term "inhabitable structure" in a
divisibility determination).
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conforms with generic burglary. When combining these two convictions with Mathis's
conviction for interference with official acts inflicting serious injury, see supra n.2,
we hold that Mathis has the requisite predicate "violent felonies" to be categorized as
an armed career criminal under the ACCA.
B. Sex-Offender-Related Special Conditions of Supervised Release
Mathis next argues that the district court abused its discretion by imposing
special conditions reserved for sex offenders because the conditions result in a greater
deprivation of liberty than is reasonably necessary to fulfill the goals outlined in 18
U.S.C. § 3553(a).
"[T]his court reviews the terms and conditions of supervised release for abuse
of discretion . . . ." United States v. Schaefer, 675 F.3d 1122, 1125 (8th Cir. 2012)
(citation omitted). Generally, "[a] district court has broad discretion to impose special
conditions of supervised release, so long as each condition complies with the
requirements set forth in 18 U.S.C. § 3583(d)." United States v. Morais, 670 F.3d 889,
895 (8th Cir. 2012) (quotation and citation omitted). Such requirements mandate that
special conditions are "reasonably related to the factors set forth in" § 3553(a), and
that the conditions "involve[] no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in" the same section. 18 U.S.C. 3583(d)(1)–(2).
We have previously upheld special conditions of supervised release applied to
sex offenders even when the underlying conviction was not for a sex offense. See
United States v. Kelly, 625 F.3d 516, 519 (8th Cir. 2010) (upholding sex-offender-
related special conditions of supervised release for conviction of being a felon in
possession of a firearm); United States v. Smart, 472 F.3d 556, 559 (8th Cir. 2006)
(same). Both Kelly and Smart, however, involved defendants that had previously been
convicted of sex crimes. The question is, then, if Mathis's previous conduct justifies
the imposition of the special conditions.
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The district court heard extensive testimony from two law enforcement officers
concerning allegations of sexual abuse made by K.G.—which happened
contemporaneously with the charged offense—and allegations of sexual abuse made
by two male children in 1990. In addition, the presentence investigation report (PSR)
detailed instances where Mathis was found to have violated his parole for previous
offenses on two different occasions regarding inappropriate behavior with young
males. First, Mathis was arrested for conducting lascivious acts with a child in 1986;
several individuals alleged Mathis exhibited inappropriate behavior towards their
young male children in connection with this arrest. Second, Mathis's parole was
revoked in 1989 when allegations surfaced that he performed fellatio on an 11-year-
old boy. Mathis did not contest these portions of the PSR, allowing the district court
to "accept [the] undisputed portion[s] . . . as a finding of fact." United States v. Lee,
570 F.3d 979, 982 (8th Cir. 2009) (quotation and citation omitted). Further, sentencing
courts are allowed to make "findings . . . based on any information other than
materially false information." Schaefer, 675 F.3d at 1124.
Based on the wealth of evidence presented of Mathis's improper acts toward
young males, we find no abuse of discretion in the district court's finding that sex-
offender-related special conditions were appropriate to deter Mathis, to protect the
public from Mathis, and to provide Mathis with correctional treatment. See 18 U.S.C.
§ 3553(a)(2)(B)–(D).
III. Conclusion
For the reasons stated, we affirm Mathis's sentence under the ACCA and the
district court's imposition of sex-offender-related special conditions of supervised
release.
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