Whether the Georgia burglary statute is divisible for ACCA purposes

QUESTION PRESENTED The district court sentenced Mr. Floyd under the Armed Career Criminal Act because before he possessed the firearm in this federal case, he had three times been convicted under Georgia’s burglary statute. The Eleventh Circuit, bound by its own precedent, affirmed the sentence and held that because the Georgia burglary statute is divisible, Mr. Floyd’s own convictions are ACCA violent felonies. Yet that flawed precedent misapplied this Court’s prescription in Mathis v. United States and undermined—indeed, betrayed—the categorical approach. The Sixth Circuit, in measuring the Georgia burglary statute, has disagreed with most of the Eleventh Circuit’s Mathis methodology, although it reached the same result. And, finally, the Fourth Circuit rejected the others entirely and held that the Georgia burglary statute is indivisible and, therefore, is categorically not an ACCA violent felony. This three-way circuit split presents the following question: The Georgia burglary statute disjunctively lists locations that may be burgled. The text makes plain that the list is not exclusive, Georgia’s case law does not require a jury to agree that the defendant burgled any particular place on that illustrative list, and because a Georgia indictment may, but need not, name a specific location, the Shepard documents alone, the Mathis-approved “peek,” can never establish that the location is an element. Under Mathis and the ACCA’s categorical approach, then, is the Georgia statute indivisible and, therefore, not an ACCA violent felony?