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Mutee v. United States

United States Court of Appeals, Ninth Circuit

April 4, 2019

Shahid Millkeller Mutee, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued and Submitted March 26, 2019 San Francisco, California

          Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding D.C. Nos. 2:16-cv-01583-SRB, 2:95-cr-00150-SRB-1

          Keith J. Hilzendeger (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

          Alexander Westbrook Samuels (argued) and Karla Hotis Delord, Assistant United States Attorneys; Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Respondent-Appellee.

          Before: J. Clifford Wallace, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.

         SUMMARY[*]

         28 U.S.C. § 2255

         Affirming a sentence, the panel held that, in light of United States v. Stitt, 139 S.Ct. 399 (2018), a conviction under North Carolina's breaking-or-entering statute, N.C. Gen. Stat. § 14-54, qualifies as a predicate felony under the Armed Career Criminal Act.

         The panel wrote that Stitt, which held that generic burglary includes burglary of mobile structures customarily used or adapted for overnight accommodation, forecloses the defendant's argument that North Carolina's definition of "building" must be overbroad merely because it has been interpreted to encompass mobile homes. The panel wrote that to the extent this court's decision in United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), supported the defendant's position, that precedent has been abrogated by Stitt. The panel wrote that United States v. Terrell, 593 F.3d 1084 (9th Cir. 2010), which interpreted Grisel to hold that generic burglary requires burglary of an "unmovable structure," is clearly irreconcilable with Stitt, and is therefore overruled.

         The panel rejected the defendant's contention that North Carolina's definition of "building" sweeps too broadly for generic burglary even after Stitt. The panel explained that while the structures in the North Carolina cases on which the defendant relies were "movable" in that they were capable of mobility under different circumstances, they were expressly not "nonpermanent or mobile," and so fall outside the range of structures that Stitt indicates must be "adapted or used for overnight accommodation." The panel concluded that the defendant therefore failed to demonstrate a realistic probability that North Carolina would apply § 14-54 to conduct outside the scope of generic burglary.

          OPINION

          PER CURIAM

         We must decide in this case whether a conviction under North Carolina's breaking-or-entering statute, N.C. Gen. Stat. § 14-54, qualifies as a predicate felony under the Armed Career Criminal Act (ACCA). We hold that it does.

         I

         In 1996, Shahid Mutee was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The government sought an enhanced sentence under the ACCA, which provides for a mandatory minimum sentence of 15 years' imprisonment for those who violate 18 U.S.C. § 922(g) and have three prior convictions for certain violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). The district court found that Mutee had ...


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