and Submitted March 26, 2019 San Francisco, California
from the United States District Court for the District of
Arizona Susan R. Bolton, District Judge, Presiding D.C. Nos.
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.
U.S.C. § 2255
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.
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.
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.
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.
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 ...