United States v. Edwards

• Decision Date: 08 September 2016
• Docket Number: No. 15–2552,Nos. 15–2373 &amp,15–2374,s. 15–2373 &amp,15–2552
• Citation: 836 F.3d 831
• Parties: United States of America, Plaintiff–Appellee, v. Justin Edwards, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Ryan Pouliot, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

836 F.3d 831

United States of America, Plaintiff–Appellee,

v.Justin Edwards, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Ryan Pouliot, Defendant–Appellant.

Nos. 15–2373 &

15–2374

No. 15–2552

United States Court of Appeals, Seventh Circuit.

Argued December 10, 2015

Decided September 8, 2016

Kevin F. Burke, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff–Appellee.

Shelley M. Fite, Kelly A. Welsh, Attorneys, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Defendants–Appellants.

Before Posner, Manion, and Sykes, Circuit Judges.

Sykes, Circuit Judge.

In separate cases Justin Edwards and Ryan Pouliot pleaded guilty to firearms offenses that carry an enhanced base offense level under the Sentencing Guidelines if the defendant has a prior conviction for a “crime of violence.” See U.S.S.G. § 2K2.1(a). At the time they were sentenced, the version of the Guidelines then in effect defined “crime of violence” to include “any offense under federal or state law ... that ... is burglary of a dwelling.” Id. § 4B1.2(a)(2).¹ Both defendants have prior Wisconsin convictions for burglary; the district judge in each case counted the convictions as crime-of-violence predicates and applied the higher offense level. The defendants challenge the enhancement, arguing that a conviction under Wisconsin's burglary statute cannot serve as a predicate offense under § 2K2.1(a). Because their appeals raise the same issue, we've consolidated them for decision.

To determine whether a prior conviction counts as a crime of violence requires a categorical approach that focuses on the statutory definition of the crime of conviction. If state law defines the offense more broadly than the Guidelines, the prior conviction doesn't qualify as a crime of violence, even if the defendant's conduct satisfies all of the elements of the Guidelines offense. In a narrow set of circumstances, the sentencing court may go one step beyond the statute itself. When a single statute creates multiple offenses, the court may consult a limited universe of documents to determine which offense the defendant was convicted of committing. This inquiry is called the “modified categorical approach,” but it only applies to “divisible” statutes. The Supreme Court recently clarified that a statute is considered divisible only if it creates multiple offenses by setting forth alternative elements . See United States v. Mathis , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).

Wisconsin defines burglary more broadly than the Guidelines: The relevant statute prohibits burglary of a “building or dwelling.” WIS. STAT. § 943.10(1m)(a). The judges in both cases consulted the state charging documents to determine whether Edwards and Pouliot were convicted of burglary of a dwelling as required by § 4B1.2(a)(2). The documents revealed that both were charged with burgling a dwelling, so the judges applied a higher offense level under § 2K2.1(a).

After Mathis, however, it's clear that this recourse to state-court charging documents was improper. The relevant subsection of Wisconsin's burglary statute sets forth alternative means of satisfying the location element of the state's burglary offense. Accordingly, we vacate the sentences and remand for resentencing.

I. Background

A. Edwards

In 2013 Justin Edwards was charged with possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), and possessing a short-barreled shotgun, see 26 U.S.C. §§ 5841, 5845(a)(2), 5861(d). He was released on bond while an appeal of an evidentiary ruling was pending and quickly racked up multiple state-law charges in three separate cases. In September 2014 Edwards was again arrested and charged with two more federal gun crimes—another charge of possessing a firearm as a felon and a charge of possessing a firearm as a drug user, see 18 U.S.C. § 922(g)(3). Plea agreements were reached in both the 2013 and the 2014 federal cases.

Two disputes arose at sentencing. First, the judge determined that Edwards's prior Wisconsin conviction for burglary of a “building or dwelling,” WIS. STAT. § 943.10(1m)(a), qualified as a crime of violence under § 4B1.2(a)(2) of the Guidelines. To make that determination, the judge consulted the state charging documents—a criminal complaint and information. Both documents stated that Edwards “intentionally enter[ed] a dwelling, without the consent of the person in lawful possession of the place, and with intent to steal.” On that basis, and over Edwards's objection, the judge applied a higher base offense level under § 2K2.1(a)(2).

Second, and again over Edwards's objection, the judge declined to apply an acceptance-of-responsibility reduction under § 3E1.1 of the Guidelines because Edwards committed multiple criminal offenses while on pretrial release for the 2013 charges. With the crime-of-violence enhancement and without an acceptance-of-responsibility reduction, the Guidelines range was 92–115 months. The judge imposed a sentence of 92 months, the bottom of the range.

B. Pouliot

In an unrelated case in the same district, Ryan Pouliot was charged with possessing a firearm and ammunition as a felon, and he too pleaded guilty. At sentencing the judge determined that Pouliot's prior Wisconsin burglary conviction qualified as a crime of violence under § 4B1.2(a)(2) of the Guidelines. As in Edwards's case, the judge consulted the charging documents in the underlying state proceedings to make that determination; those documents revealed that Pouliot had been charged with burgling a dwelling. The judge accordingly rejected Pouliot's objection and applied the crime-of-violence enhancement under § 2K2.1(a)(3), which yielded a Guidelines range of 84–105 months. The judge imposed a below-range sentence of 72 months.

II. Discussion

Edwards and Pouliot challenge the application of the crime-of-violence enhancement based on their Wisconsin burglary convictions. Edwards also challenges the judge's refusal to apply an acceptance-of-responsibility reduction under § 3E1.1.

A. Crime-of-Violence Enhancement

Whether a prior conviction counts as a crime of violence is a question of law that we review de novo. United States v. Woods , 576 F.3d 400, 408 (7th Cir. 2009). The version of the Guidelines in effect when the defendants were sentenced listed “burglary of a dwelling” as a qualifying “crime of violence.” U.S.S.G. § 4B1.2(a)(2). The defendants have prior convictions for burglary in violation of section 943.10(1m)(a) of the Wisconsin Statutes, but that statute is broader than the Guidelines; it makes burglary of a “building or dwelling” a Class F felony. The issue here is whether subsection (a) of the Wisconsin burglary statute is divisible. If it is, then it was appropriate for the judges in these cases to consult the state charging documents. If it's not divisible, then a conviction under Wisconsin's burglary statute doesn't qualify as a crime of violence for purposes of the Sentencing Guidelines.

1. Divisibility

The concept of divisibility is an outgrowth of the categorical approach that governs the crime-of-violence determination under the Sentencing Guidelines.² See Mathis , 136 S.Ct. at 2248–49. The categorical approach disregards the facts underlying a prior conviction, focusing instead on the statutory definition of the offense. See id. at 2248 (citing Taylor v. United States , 495 U.S. 575, 600–01, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). If the statutory definition is the same as (or narrower than) the Guidelines definition, the prior conviction can be counted as a crime of violence. But if a statute defines an offense more broadly than the Guidelines, the prior conviction doesn't count, “even if the defendant's actual conduct (i.e. , the facts of the crime)” would fit within the Guidelines definition. Id. Consequently, in most cases the sentencing judge's inquiry is limited to “the fact of conviction and the statutory definition of the prior offense.” Taylor , 495 U.S. at 602, 110 S.Ct. 2143.

We say “most cases” because the categorical approach “may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements” of the Guidelines offense. Id. This occurs when a statute is “divisible,” meaning it “sets out one or more elements of the offense in the alternative.” Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under these circumstances a court may “consult a limited class of documents ... to determine which alternative formed the basis of the defendant's prior conviction.” Id. The documents that may be consulted include charging papers, jury instructions, and any available plea agreements or plea colloquies. Shepard v. United States , 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). This variant of the categorical approach has been dubbed the “modified categorical approach.” Descamps , 133 S.Ct. at 2281.

Until recently, the circuits were split regarding what qualifies as a divisible statute. Some had held that any statute containing a list of alternatives is divisible, while others distinguished between statutes that list alternative elements (thus creating multiple offenses) and statutes that create a single offense with alternative means of satisfying an element of that offense. See Mathis , 136 S.Ct. at 2250–51, 2251 n.1. The Supreme Court resolved the split in Mathis, holding that a statute is divisible only if it creates multiple offenses by listing one or more alternative elements . Id. at 2253–54. A statute that defines a single offense with alternative means of satisfying a particular element is indivisible and therefore not subject to the modified categorical approach. Id. at 2251.³

2. Wisconsin's Burglary Statute

With this framework in place, we proceed to the central question presented here: Is subsection (a) of Wisconsin's burglary statute divisible? As we've just explained, the answer depends on...