Matthew Gary Richardson v. United States of America

Petitioner Matthew Richardson appeals the district

court’s denial of his 28 U.S.C. § 2255 motion to set aside his sentence, challenging his

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designation as an armed career criminal under 18 U.S.C. § 924(e), the Armed Career Criminal

Act (“ACCA”). We AFFIRM.

I. BACKGROUND

In 2012, after attempting to sell a sawed-off shotgun, Richardson pleaded guilty to

possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). Based on Richardson’s

three prior Georgia burglary convictions,1 each of which qualified as a predicate “violent felony”

under the ACCA, the district court determined that Richardson was an armed career criminal and

sentenced him to 180 months’ imprisonment. Richardson did not appeal his sentence, but now

brings this § 2255 motion alleging that in light of Johnson v. United States, 135 S. Ct. 2551

(2015), his prior Georgia burglary convictions no longer qualify as predicate offenses under the

ACCA. The district court denied the motion,2 and this timely appeal followed.

II. THE APPLICABLE LAW

We review de novo whether Richardson’s prior convictions qualify as predicate violent

felonies under the ACCA. United States v. Hockenberry, 730 F.3d 645, 663 (6th Cir. 2013)

(citation omitted). The ACCA provides for a mandatory minimum sentence of 180 months when

a felon found guilty of possessing a firearm was previously convicted of at least three prior

“serious drug offense[s]” or “violent felon[ies].” 18 U.S.C. § 924(e)(1). As relevant here, the

ACCA defines “violent felony” to include “burglary.” Id. § 924(e)(2)(B)(ii).

However, not every “burglary” conviction qualifies as a predicate offense under the

ACCA. As the Supreme Court explained, only “generic burglary”—defined as “an unlawful or

unprivileged entry into, or remaining in, a building or other structure, with intent to commit a

crime”—qualifies as a violent felony under the enumerated-crimes clause of the ACCA. Taylor

v. United States, 495 U.S. 575, 598 (1990). Thus, we must determine whether Richardson’s

three prior Georgia burglary convictions qualify as generic burglaries. To do so, we employ the

“categorical” approach. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016).

1Richardson committed two of his burglaries in 1999 and one in 2003.

2The district court initially refused to grant a certificate of appealability. Upon Richardson’s motion, the

district court reconsidered its decision and granted his request for a certificate of appealability.

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Under the categorical approach, we must determine “whether the elements of the crime of

conviction sufficiently match the elements of generic burglary.” Id. The Supreme Court has

repeatedly cautioned that a court may look only at the elements of the statute of conviction and

not at the underlying facts of the offense. Taylor, 495 U.S. at 599–602. If the statute’s elements

are the same as or narrower than the elements of the generic offense, the statutory offense

qualifies as a predicate offense because the commission of the offense necessarily constitutes

commission of the generic offense. Id. at 599.

This task “is straightforward when a statute sets out a single (or ‘indivisible’) set of

elements to define a single crime.” Mathis, 136 S. Ct at 2248. However, faced with an

alternatively phrased statute, courts must first determine whether the statute lists elements in the

alternative and thus creates a separate crime associated with each alternative element, or whether

the statute creates only a single crime and “spells out various factual ways,” or “means,” “of

committing some component of the offense.” Id. at 2249.

As Mathis explained, “[e]lements are the constituent parts of a crime’s legal definition—

the things the prosecution must prove to sustain a conviction.” Id. at 2248 (quotation marks

omitted). “At a trial, they are what the jury must find beyond a reasonable doubt to convict the

defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads

guilty.” Id. Means, on the other hand, “are mere real-world things—extraneous to the crime’s

legal requirements.” Id. “They are circumstances or events having no legal effect or

consequence . . . [and] need neither be found by a jury nor admitted by a defendant.” Id.

(quotation marks and alterations omitted). As we recently explained:

In determining whether statutory alternatives constitute elements or means,

[Mathis] clarified that sentencing courts should look first to state law, including

judicial interpretations of the criminal statute by state courts. Alternatively, the

statute itself may provide the answer. A statute might explicitly identify which

things must be charged (and so are elements) and which need not be (and so are

means). Moreover, if statutory alternatives carry different punishments, then

under Apprendi they must be elements. On the other hand, if a statutory list is

drafted to offer “illustrative examples,” then it includes only a crime’s means of

commission.

No. 17-5517 Richardson v. United States Page 4

State law can be expected to provide a clear answer to the elements-means

dilemma in many cases, but, if it does not, a sentencing court may briefly look to

the record of the prior conviction. Sentencing courts encountering this situation

may take a “peek” at the record documents for the sole and limited purpose of

determining whether the listed items are elements of the offense. Indictments,

jury instructions, plea colloquies and plea agreements will often reflect the

crime’s elements and so can reveal whether a statutory list is of elements or

means. If the charging documents reiterate all the terms of the law, then each

alternative is only a possible means of commission, not an element that the

prosecutor must prove to a jury beyond a reasonable doubt. The same is true if

those documents use a single umbrella term like “premises.” On the other hand,

the record could indicate that the statute contains a list of distinct elements by

referencing one alternative term to the exclusion of all others. Only if the record

indicates that the listed items are elements, not alternative means, may the

sentencing courts examine the Shepard documents to determine whether the crime

the defendant was convicted of constituted a generic burglary. The Court

cautioned, however, that such record materials will not in every case speak

plainly, and if they do not, a sentencing judge will not be able to satisfy Taylor’s

demand for certainty when determining whether a defendant was convicted of a

generic offense.

United States v. Ritchey, 840 F.3d 310, 318 (6th Cir. 2016) (internal quotations, citations,

quotation marks, and alterations omitted).

If an alternatively phrased statute sets forth alternative elements of an offense, the statute

is divisible and courts may proceed to apply the “modified categorical” approach to identify

which crime of the alternative crimes set forth in the statute was the basis of the defendant’s

conviction. Mathis, 136 S. Ct at 2248–49. The modified categorical approach permits us to look

at a limited class of documents from the record of the prior conviction (Shepard documents) to

determine which crime, with what elements, the defendant was convicted of, before comparing

that crime’s elements to the generic offense. Id.; see Shepard v. United States, 544 U.S. 13, 26

(2005) (“We hold that enquiry under the ACCA to determine whether a plea of guilty to burglary

defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to

the terms of the charging document, the terms of a plea agreement or transcript of colloquy

between judge and defendant in which the factual basis for the plea was confirmed by the

defendant, or to some comparable judicial record of this information.”).

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Here, it is undisputed that the Georgia burglary statute at issue3 criminalizes more

conduct than the generic definition of burglary set forth in Taylor because it includes vehicles,

railcars, watercraft, and aircraft in its list of locations covered by the statute. Thus, our first task

is to determine whether the listed locations are alternative elements or alternative means of

fulfilling an element. If the Georgia statute includes alternative locational elements, the statute is

divisible and we must apply the modified categorical approach. If the statute contemplates

alternative means of fulfilling the locational element, the statute is indivisible and subject only to

the categorical analysis.

III. THE ELEVENTH CIRCUIT’S GUNDY DECISION

In United States v. Gundy, the Eleventh Circuit applied the principles and tools outlined

in Mathis to the Georgia burglary statute at issue here and found the statute to be divisible.

842 F.3d 1156, 1159–70 (11th Cir. 2016).

Gundy first found that the Georgia burglary statute is distinguishable from both the Iowa

burglary statute found to be indivisible by the Supreme Court in Mathis and the Alabama

burglary statute, which the Eleventh Circuit had previously found indivisible in United States v.

Howard, 742 F.3d 1334, 1348 (11th Cir. 2014). Both the Iowa and Alabama statutes used a

single term—“occupied structure” and “building,” respectively—that was then defined in a

separate statutory section to include non-generic types of locations. Gundy, 842 F.3d at 1165–67

(citations omitted). In contrast, the Gundy court reasoned, “the plain text of the Georgia statute

has three subsets of different locational elements, stated in the alternative and in the disjunctive.”

Id. at 1167. Second, the court addressed state caselaw and found that in Georgia “a prosecutor

must select, identify, and charge the specific place or location that was burgled,” “the hallmark

of a divisible statute.” Id. Third, the court relied on a Georgia Supreme Court case stating that

3At the time of Richardson’s burglary offenses, Georgia’s burglary statute provided as follows:

A person commits the offense of burglary when, without authority and with the intent to commit a

felony or theft therein, he enters or remains within the dwelling house of another or any building,

vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another

or enters or remains within any other building, railroad car, aircraft, or any room or any part

thereof. . . .

Ga. Code Ann. § 16-7-1(a) (1980).

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the fact “that the [burglarized] vehicle was designed as a dwelling was an essential element of the

offense.” Id. at 1168 (quoting DeFrancis v. Manning, 271 S.E.2d 209, 210 (Ga. 1980)).

Having concluded that the statute is divisible, the Gundy court found that the state

indictments, which charged the defendant in two prior cases with burglarizing a “dwelling

house,” and in five cases with burglarizing a “business house,” “satisf[ied] Taylor’s demand for

certainty that Gundy’s convictions were for burglary of a building or other structure, which is

generic burglary.” Id. at 1170.

Judge Jill Pryor dissented, advancing four arguments. First, she would have relied on a

Georgia Court of Appeals case suggesting that the type of location is not an element of Georgia

burglary. Id. at 1172 (quoting Lloyd v. State, 308 S.E.2d 25, 25 (Ga. Ct. App. 1983)). Second,

she looked to Georgia’s model jury instructions that “list [] ‘building or dwelling’ as part of a

single element.” Id. at 1173. Third, she contended that the inclusion of the phrase “other such

structure designed for use as the dwelling of another” in the second part of the statute’s list of

locations is indeterminate and precludes a finding of divisibility. Id. at 1172–73. Fourth, as to

the “peek” at Gundy’s records, she found them unavailing because indictments for five of

Gundy’s predicate crimes used the phrase “business house,” which is not found in the statute. Id.

at 1178.

The Eleventh Circuit declined to revisit Gundy en banc.4

IV. DISCUSSION

Because Georgia law does not clearly answer whether the locations listed in Georgia’s

alternatively phrased burglary statute are means or elements of the offense, we “peek” at the

records of Richardson’s prior state convictions, which support the conclusion that the multiple

locations listed in the statute are alternative elements, rather than alternative means. We thus

conclude that the statute is divisible.

4The Supreme Court recently denied Gundy’s petition for a writ of certiorari. Gundy v. United States,

138 S. Ct. 66 (2017).

No. 17-5517 Richardson v. United States Page 7

1. Georgia Burglary Statute’s Text

The Georgia burglary statute at issue does not set out different punishments for

burglarizing different types of structures, so reference to the statutory text to see whether

different punishments attach to the different variations provides no help. Mathis, 136 S. Ct. at

2256 (“If statutory alternatives carry different punishments, then under Apprendi they must be

elements.”).

Further, unlike the Iowa burglary statute at issue in Mathis and the Tennessee aggravated

burglary statue at issue in our decision in United States v. Stitt, 860 F.3d 854, 857 (6th Cir.

2017), Georgia’s burglary statute does not use a single locational term such as “occupied

structure” (Iowa Code § 713.1) or “habitation” (Tenn. Code Ann. § 39-14-403), which is then

separately defined by means of “illustrative examples.” Nor does Georgia’s burglary statute use

the broad term “includes,” unlike, for instance, the Alabama statute held indivisible in Howard,

742 F.3d at 1348. Thus, this inquiry is also of no help; although a statute with a single locational

element that is separately defined is indivisible, the absence of a single locational element with a

separate definition does not mean that a statute is divisible.

2. Georgia Burglary Statute’s Structure

According to Gundy, the burglary statute creates three distinct and exhaustive categories

of locations: “(1) dwelling house, or (2) building, vehicle, railroad car, watercraft, or other such

structure designed for use as a dwelling, or (3) any other building, railroad car, aircraft, or any

room or any part thereof.” 842 F.3d at 1165. Further, Gundy held that the statute’s repeated use

of the disjunctive “or” indicates that those specifically listed locations are alternative elements of

the offense. “Each of the three subsets enumerates a finite list of specific structures in which the

unlawful entry must occur to constitute the crime of burglary. In doing so, the burglary statute

has multiple locational elements effectively creating several different crimes.” Id. at 1167.

Focusing on the disjunctive nature of the statute does find some support in precedent. For

instance, in Descamps, the Supreme Court explained that a statute “stating that burglary involves

entry into a building or an automobile” is divisible. Descamps v. United States, 570 U.S. 254,

257 (2013).

No. 17-5517 Richardson v. United States Page 8

However, Gundy’s conclusion that the statute’s structure supports finding that the

locations are elements is problematic. First, Gundy’s assertion that the statute has three subsets

of different locational elements is not based on any Georgia authority (and our research reveals

none). Second, even if Gundy is correct to rely on the disjunctive nature of the statute to divide

it into three subsets, as the dissent in Gundy pointed out,

Mathis makes clear that alternative phrasing is a necessary—but by no means

sufficient—condition to read a statute as setting out alternative elements. See

136 S.Ct. at 2256 (“The first task for a sentencing court faced with an

alternatively phrased statute is thus to determine whether its listed items are

elements or means.”). Mathis then lists two attributes of an alternatively phrased

statute that would confirm its divisibility. First, “[i]f statutory alternatives carry

different punishments, then under Apprendi they must be elements.” Id. Second,

“a statute may itself identify which things must be charged (and so are elements)

and which need not be (and so are means).” Id. Neither is present in this case,

however. Absent these attributes, or something equally compelling, alternate

phrasing is neutral with respect to the elements-versus-means inquiry.

Gundy, 842 F.3d at 1174 (Jill Pryor, J., dissenting).

3. Georgia Caselaw

The government argues that the clearest indication that the statute contains a locational

element comes from the Georgia Supreme Court in DeFrancis v. Manning, 246 Ga. 307 (1980).

In Manning, the indictment charged that the defendant

unlawfully without authority and with intent to commit a theft therein entered that

certain vehicle, same being a gray Ford truck, being the property of and owned by

. . . , said truck being located on 10th Avenue West in the City of Cordele, Crisp

County, Georgia, at the time of said entry therein by the said accused.

Id. at 307. The Georgia Supreme Court set aside the defendant’s burglary conviction because the

indictment did not charge that the vehicle was “designed for use as a dwelling.” Id. at 308. As

the Georgia Supreme Court held, “that the vehicle was designed as a dwelling was an essential

element of the offense which must be alleged.” Id. (emphasis added).

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The government reads too much into Manning. Again, we agree with the Gundy dissent:

In [Manning], the Georgia Supreme Court upheld a lower court’s decision

overturning a defendant’s conviction for burglarizing a truck. 271 S.E.2d at 210.

The appellate court held the conviction was invalid because Georgia law only

criminalized entering without authority “any . . . vehicle . . . designed for use as

the dwelling of another,” id. (quoting O.C.G.A. § 26-1601 (1968)), and “no proof

was offered at trial that the truck was ‘designed for the use as the dwelling of

another.’” Id. For the same reason, the [Manning] court held that the indictment

was flawed because it failed to allege that the truck was designed as a dwelling.

See id. This omission was not error because—as the majority incorrectly

surmises—Georgia burglary indictments must always include a single type of

location. The question in [Manning] was not whether the burglary occurred in a

truck versus a building, but rather whether the truck met the statute’s requirement

that it be designed for use as a dwelling. Thus, the indictment in [Manning] was

flawed because it did not allege a crime at all. In other words, [Manning] did not

bar a burglary indictment from listing “building, dwelling, truck, or railroad car

designed for use as a dwelling.” It merely said that an indictment must specify a

location that the statute makes it a crime to enter.

Gundy, 842 F.3d at 1176–77 (Jill Pryor, J., dissenting). Stated differently, because breaking into

a car not adapted for overnight accommodation is not burglary, Manning emphasized that to

trigger the burglary statute, it was “essential” that the “adapted for overnight accommodation”

language be included in the indictment and proved at trial.

Further, decisions issued after Manning reveal that Georgia’s appellate courts have not

read Manning to hold that a specific burglary location is an element of the offense. Notably,

three years after Manning, the Georgia Court of Appeals held that “there are two essential

elements which must be established by the State: 1) lack of authority to enter the dwelling or

building; 2) intent to commit a felony or theft.” Lloyd v. State, 308 S.E.2d 25, 25 (Ga. Ct. App.

1983).

But Lloyd too does not resolve the threshold elements/means inquiry. Despite Lloyd’s

statement about the two elements of burglary, Lloyd “had nothing to do with the locational

element” at issue here, Gundy, 842 F.3d at 1169, as the types of places that could be burglarized

were not at issue in Lloyd. The sole issue in Lloyd was whether the evidence was sufficient to

prove “lack of authority on the defendant’s part to enter the building.” 308 S.E.2d at 25. Thus,

No. 17-5517 Richardson v. United States Page 10

although Manning does not “definitively answer[] the [threshold elements-versus-means]

question,” Mathis, 136 S. Ct. at 2256, neither does Lloyd.

Richardson also relies on Weeks v. State, 616 S.E.2d 852 (Ga. Ct. App. 2005), and

Sanders v. State, 667 S.E.2d 396 (Ga. Ct. App. 2008), arguing that in Weeks

[t]he indictment charged that [the defendant] entered the “dwelling house of

another: to wit, Anthony Sexton.” The proof at trial, however, showed that the

house was under construction. The appellate court agreed that the incomplete

building was not a dwelling, but found that “Week’s [sic] argument is not a

challenge to the sufficiency of the evidence, for the evidence sufficed to show that

this was a building under the statute and therefore could be burglarized.” In

holding that proof that the structure was a “building,” which was not the type of

structure alleged in the indictment, did not raise a sufficiency argument, the court

demonstrated that the type of structure was not an essential element of the

offense. The jury need not find a specific type of structure - any structure would

suffice. If the type of structure was an essential element of the offense, failure of

proof on that issue would have sustained a sufficiency challenge because it would

have automatically affected the defendant’s substantial rights.

* * *

[Sanders] confronted the same issue . . . . Sanders was charged with entering “the

dwelling house of another, to wit: Aaron Fox.” The evidence at trial, however,

did not establish that the building was a dwelling. Nonetheless, because the

evidence was sufficient to find the place entered was a building, the court found

that the evidence was sufficient to uphold the burglary conviction. Thus, under

Georgia law, the type of structure need not be charged - and if one type of

structure was actually charged, proof of a completely different type of structure is

sufficient to uphold a finding of guilt - clearly establishing that the type of

structure is not an element of the offense.

(Appellant’s Br. at 12–13 (internal citations omitted).)

Richardson’s assertion that both Weeks and Sanders “made clear that the type of structure

is not an element of burglary” (Id. at 12) is unconvincing because neither Weeks nor Sanders

actually held that the specific type of location is not an essential element of burglary. In each

case, the defendants merely argued that “the evidence fatally varied from the allegations of the

indictment.” Weeks, 616 S.E.2d at 854; see Sanders, 667 S.E.2d at 399. Under Georgia law,

whether a variance is fatal turns on whether “(1) . . . the accused [was] definitely informed as to

the charges against him so that he [was] able to present his defense, and (2) [is] protected against

No. 17-5517 Richardson v. United States Page 11

another prosecution for the same offense.” Battles v. State, 420 S.E.2d 303, 305 (Ga. 1992). In

both Weeks and Sanders, the appellate court held that the variances were not fatal because the

description of the burgled structure in the indictment was sufficient and did not “impede[] [the

defendant’s] ability to present a subsequent defense or surprise him at trial, and [ensured that] he

cannot be subjected to a subsequent prosecution for the burglary of the building in question.”

Weeks, 616 S.E.2d at 855. Thus, both Weeks and Sanders are more properly characterized as

fatal-variance cases that, contrary to Richardson’s assertions, do not definitively demonstrate that

the locations listed in the Georgia burglary statute are alternative means of satisfying a single

element.

Further, as the Gundy majority and the government here point out, the Georgia Court of

Appeals has repeatedly held that “where the defendant is charged with burglary, the indictment

must specify the location of the burglary,” Morris v. State, 303 S.E.2d 492, 494 (Ga. Ct. App.

1983), and the prosecution must “prove the specific location of a burglary in order to obtain a

conviction.” State v. Ramos, 243 S.E.2d 693, 694 (Ga. Ct. App. 1978). Indeed, in every Georgia

burglary case cited by Richardson in his brief, the indictment specified the particular type of

location burglarized. See Sanders, 667 S.E.2d at 399 (a “dwelling house”); Weeks, 616 S.E.2d at

853 (same).5 As Gundy held,

[t]he U.S. Supreme Court has told us that “[a] prosecutor charging a violation of a

divisible statute must generally select the relevant element from the list of

alternatives.” Descamps, 570 U.S. at ––––, 133 S.Ct. at 2290. That the Georgia

prosecutor must select and identify the locational element of the place burgled—

whether the place burgled was a dwelling, building, railroad car, vehicle, or

watercraft—is the hallmark of a divisible statute.

842 F.3d at 1167. However, the Georgia cases addressing indictment requirements take us only

so far; they do not definitively establish that the specified burglary locations are alternative

elements of the offense. The cases do not address the elements of the burglary statute; rather,

they deal with notice to the accused and double jeopardy. As the Gundy dissent aptly observed,

5It is also notable that not one of the Georgia cases cited by Richardson holds that an indictment may

charge a generic burglary (e.g., unauthorized entry into a “building or structure”) but that a jury may instead find a

defendant guilty of a non-generic burglary (e.g., unauthorized entry into an aircraft).

No. 17-5517 Richardson v. United States Page 12

the [Gundy] majority misapprehends the purpose of requiring the burglary’s

location to be included in indictments. The majority speculates that the multiple

types of locations listed in the Georgia burglary statute must be “why under

Georgia law a prosecutor must select, identify, and charge the specific place or

location that was burgled.” . . . This speculation lacks support. Rather, as a case

the majority cites makes clear, an indictment must include the location

burglarized in order “to give the defendant ample opportunity to prepare a

defense.” Morris, 303 S.E.2d at 494. The many indictment cases on which the

majority relies never considered whether the types of locations listed in Georgia’s

burglary statute are alternative elements or means of committing the crime

because these cases were concerned only with the need to “inform the accused as

to the charges against him so that he may present his defense and not . . . be taken

by surprise” and to “protect the accused against another prosecution for the same

offense.” Smarr v. State, 317 Ga. App. 584, 732 S.E.2d 110, 115 (2012).

842 F.3d at 1176 (Jill Pryor, J., dissenting).

Finally, Richardson relies on Georgia’s pattern jury instructions. He argues that because

the instructions refer to the burglarized location only as “any building or dwelling” without

listing the other locations enumerated in the statute (such as “aircraft”), the instructions support

the conclusion that the type of location is not an element of burglary. (Appellant’s Br. at 15–16

(citing Ga. Suggested Pattern Jury Instr., Vol. II, Crim. §§ 2.62.10, 2.62.20 [hereinafter Ga.

Crim. Jury Instr.]).) Richardson also contrasts burglary’s intent element with the locational list.

Because there are two types of intent (to commit theft and to commit a felony), Georgia has two

sets of jury instructions for burglary. Richardson thus surmises that the lack of separate

instructions as to each location enumerated in the burglary statute indicates that location is not a

statutory element.

However, the proposed jury instructions also do not resolve the elements/means inquiry.

First, it appears that the phrase “any building or dwelling” was intended only as a placeholder; as

the instructions direct, a trial judge should “[c]harge only the appropriate language” from the

recommended instruction and “adapt parentheticals to the indictment and evidence.” Ga. Crim.

Jury Instr., Preamble to § 2.62.10. And the requirement that the instructions be modified to

comport with the indictment is well-settled in Georgia. See, e.g., Childs v. State, 357 S.E.2d 48,

58 (Ga. 1987) (stating that it “is error to charge the jury that a crime may be committed by either

No. 17-5517 Richardson v. United States Page 13

of two methods, when the indictment charges it was committed by one specific method”)

(internal quotations marks, alterations, and citation omitted).

Second, although the relevant language of the burglary statute did not change from the

pre-July-2012 version to the 2012-2017 version,6 the language of the corresponding jury

instructions did.7 The jury instructions now list in parentheses each location enumerated in the

statute. Thus, we would have to conclude that the statute is indivisible under one set of jury

instructions (because, as Richardson argues, the instructions include the phrase “any building or

dwelling” instead of the full list of locations) but divisible under a later version of jury

instructions (because the instructions now include the full list of locations), even though the

relevant language in the underlying burglary statute remained unchanged. Thus, Georgia’s

pattern jury instructions are also of little help.

4. Georgia Law Fails to Provide a Clear Answer

Richardson and the government, as well as the majority and dissent in Gundy, present

colorable arguments and reasonable inferences. However, neither side has established its

position with certainty. Unlike the Iowa burglary statute at issue in Mathis, which relied on a

clear statement from the Iowa Supreme Court that the premises listed in the statute were

“alternative method[s]” of satisfying the locational element, Mathis, 136 S. Ct. at 2256, we do

not have the benefit of such a clear pronouncement from Georgia’s highest court.

Although the parties’ arguments do not definitively answer the threshold elements/means

inquiry, they do establish that Georgia’s burglary statute and the law interpreting it are

ambiguous as to whether the different types of listed locations are elements or means of

committing the offense. This is not surprising; “the divergence of outcomes after Mathis

suggests that the ‘elements or means’ inquiry is not quite as easy as the Supreme Court thought,

not the least because state legislatures and state courts do not draft their laws and craft their

6Compare Ga. Code Ann. § 16-7-1 (1980) with Ga. Code Ann. § 16-7-1 (2012).

7Compare Ga. Crim. Jury Instr. § 2.62.10 with Ga. Crim. Jury Instr. § 2.62.11.

No. 17-5517 Richardson v. United States Page 14

decisions with this particular distinction in mind.” United States v. Steiner, 847 F.3d 103, 120

(3d Cir. 2017).8

Here, even the most persuasive arguments offered by each side do not “definitively”

answer the threshold question. Mathis, 136, S.Ct. at 2256. We disagree with the Gundy majority

that the burglary statute’s text and structure support the conclusion that the locations listed in the

statute are elements rather than means. But we also disagree with the Gundy dissent that Georgia

“case law unambiguously defines the elements of the crime of burglary, and the different types of

locations that can be burglarized are not separate elements.” 842 F.3d at 1171 (emphasis added).

Thus, because Georgia law fails to provide a clear answer, a Mathis “peek” at the records

of Richardson’s three Georgia burglaries is necessary.

5. Mathis “Peek”

As the Mathis Court explained, “if state law fails to provide clear answers, federal judges

have another place to look: the record of a prior conviction itself.” 136, S.Ct. at 2256. The

Court cautioned that this “peek” at the record documents “is for the sole and limited purpose of

determining whether the listed items are elements of the offense.” Id. at 2256–57 (quotation

marks and alterations omitted). The Court also gave contrasting examples of how to employ the

“peek” to answer the elements/means inquiry.

Suppose, for example, that one count of an indictment and correlative jury

instructions charge a defendant with burgling a “building, structure, or vehicle”—

thus reiterating all the terms of Iowa’s law. That is as clear an indication as any

that each alternative is only a possible means of commission, not an element that

the prosecutor must prove to a jury beyond a reasonable doubt. So too if those

documents use a single umbrella term like “premises”: Once again, the record

would then reveal what the prosecutor has to (and does not have to) demonstrate

8In his dissent in Mathis, Justice Breyer criticized the elements/means inquiry, predicting it would

“produce a time-consuming legal tangle” and prove to be “not practical” in part because “there are very few States

where one can find authoritative judicial opinions that decide the means/element question.” Mathis, 136 S. Ct. at

2263–64 (Breyer, J., dissenting). Justice Alito, also dissenting in Mathis, was similarly concerned that “[t]he

Court’s approach calls for sentencing judges to delve into pointless abstract questions” and that lower courts would

struggle to apply the means-element distinction. Id. at 2268 (Alito, J., dissenting); see also id. at 2264 (“Because of

the ever-morphing analysis and the increasingly blurred articulation of applicable standards, [lower courts] are being

asked to decide, without clear and workable standards, whether disjunctive phrases in a criminal law define

alternative elements of a crime or alternative means of committing it.”) (Breyer, J., dissenting) (quoting Omargharib

v. Holder, 775 F.3d 192, 200 (4th Cir. 2014) (Niemeyer, J., concurring)).

No. 17-5517 Richardson v. United States Page 15

to prevail. See Descamps, 570 U.S., at ––––, 133 S.Ct., at 2290. Conversely, an

indictment and jury instructions could indicate, by referencing one alternative

term to the exclusion of all others, that the statute contains a list of elements, each

one of which goes toward a separate crime. Of course, such record materials will

not in every case speak plainly, and if they do not, a sentencing judge will not be

able to satisfy “Taylor’s demand for certainty” when determining whether a

defendant was convicted of a generic offense. Shepard, 544 U.S., at 21, 125 S.Ct.

1254. But between those documents and state law, that kind of indeterminacy

should prove more the exception than the rule.

Mathis, 136 S. Ct. at 2257. Here, the language in Richardson’s indictments9—the only available

record documents—“satisf[ies] Taylor’s demand for certainty when determining whether a

defendant was convicted of a generic offense.” Id. at 2257 (internal quotation marks omitted).

Richardson’s burglary indictments charge him with burglarizing “the dwelling house of another,”

(R. 35-1, PID 135), “a building, to wit: [a café,]” (id. at 139), and “the dwelling house of

another,” (id. at 141). Each indictment references only one of the several alternative locations

listed in Georgia’s burglary statute. This supports the government’s argument (and Gundy’s

holding) that the alternative locations are elements and the statute is divisible as to the locations

that can be burglarized.10

Having concluded that Georgia’s burglary statute is divisible, we must determine whether

Richardson’s three prior Georgia burglaries are generic under the ACCA. In doing so, we

employ the modified categorical approach. Here, Richardson’s state court indictments make

clear that his burglary convictions involved three elements: (1) an unlawful entry (2) into a

dwelling house or building (3) with intent to commit a crime therein. These elements

substantially conform to the generic definition of burglary announced by the Supreme Court.

9The first 1999 indictment charged that Richardson “did without authority and with the intent to commit a

felony or theft therein enter the dwelling house of another . . . .” (R. 35-1, PID 135.) The second 1999 indictment

charged that Richardson “did without authority and with the intent to commit a felony, to wit: theft, therein entered a

building, to wit: [a café.]” (Id. at 139.) The 2003 indictment charged that Richardson “did, without authority and

with the intent to commit a theft therein, enter and remain within the dwelling house of another . . . .” (Id. at 141.)

10Richardson’s only argument here is that “[a] Mathis ‘peek’ invites unlawful judicial factfinding” and

“invites the very collapse of the distinction between the categorical and modified categorical approach cautioned

against in Descamps.” (Reply Br. at 12.) Having engaged in the analysis here, we understand the practical reality of

Richardson’s argument. Still, that argument demonstrates disagreement with Mathis and the Supreme Court’s

direction to peek at the records of a defendant’s prior convictions in search of clarity. But Mathis is the law.

No. 17-5517 Richardson v. United States Page 16

See Taylor, 495 U.S. at 599, 602 (stating that generic burglary is an “unlawful or unprivileged

entry into, or remaining in, a building or structure, with intent to commit a crime”).

Therefore, Richardson’s prior Georgia burglary convictions at issue qualify as violent

felonies under the ACCA’s enumerated-crimes clause, and the district court did not err in

sentencing Richardson as an armed career criminal.

We AFFIRM the judgment of the district court.