United States v. Franklin

Decision Date17 July 2018
Docket NumberNos. 16-1580 & 16-1872,s. 16-1580 & 16-1872
Citation895 F.3d 954
Parties UNITED STATES of America, Plaintiff-Appellee, v. Dennis FRANKLIN & Shane Sahm, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Laura A. Przybylinski Finn, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Shelley M. Fite, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Defendants-Appellants.

Adam Stevenson, Attorney, University of Wisconsin, Law School, Madison, WI, for Amicus Curiae.

Before Kanne and Hamilton, Circuit Judges.*

Per Curiam.

The defendant-appellants' petition for panel rehearing is GRANTED, and the opinion and judgment issued February 26, 2018, are VACATED. Pursuant to Circuit Rule 52 and Wis. Stat. § 821.01, we request that the Wisconsin Supreme Court answer a question of Wisconsin law that should control our decision in these appeals of federal sentences under the Armed Career Criminal Act, 18 U.S.C. § 924(e). See generally 884 F.3d 331 (7th Cir. 2018) (panel opinion).

The question concerns the location provisions of the Wisconsin burglary statute, which provides as follows:

Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class F felony:
(a) Any building or dwelling; or
(b) An enclosed railroad car; or
(c) An enclosed portion of any ship or vessel; or
(d) A locked enclosed cargo portion of a truck or trailer; or
(e) A motor home or other motorized type of home or a trailer home, whether or not any person is living in any such home; or
(f) A room within any of the above.

Wis. Stat. § 943.10(1m).

Our question, see below at 961, is whether the different location subsections (a)(f) identify alternative elements of burglary or instead only identify alternative means of committing burglary. See, e.g., State v. Hendricks , 379 Wis.2d 549, 565–72, 906 N.W.2d 666, 673–77 (Wis. 2018) (deciding similar question under child enticement statute, Wis. Stat. § 948.07 ).

The question may seem obscure or even arcanely metaphysical, at least without a fair amount of background information about the federal Armed Career Criminal Act, its reference to burglary convictions, and several related cases. (See below.) But, despite the layers of federal sentencing precedent that frame this issue, this is at bottom a controlling question of State criminal law. The answer to this question controls not only the validity of these appellants' federal sentences; it also affects how Wisconsin juries must be instructed, what jurors must agree upon unanimously, and how double jeopardy protections may apply.

I. The Armed Career Criminal Act

The key substantive provision of the Armed Career Criminal Act states:

In the case of a person who violates section 922(g) of this title [unlawful possession, receipt, shipment, or transportation of firearms] and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years[.]

18 U.S.C. § 924(e)(1) (emphasis added).

The normal sentence for unlawful possession of a firearm under § 922(g) is a maximum of ten years in prison. See 18 U.S.C. § 924(a)(2). A defendant with three qualifying convictions for violent felonies, however, falls under the § 924(e) enhancement quoted above and faces a mandatory minimum of fifteen years in prison. See United States v. Bennett , 863 F.3d 679, 680 (7th Cir. 2017). The maximum becomes life in prison.

What qualifies as a conviction for a "violent felony" under § 924(e) ? The statutory definition reads:

the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year ... that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary , arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

18 U.S.C. § 924(e)(2)(B) (emphasis added).

A. "Generic" Burglary and the "Categorical Method"

So a felony conviction for "burglary" counts toward the three violent felonies that can trigger the severe sentences under the Armed Career Criminal Act.

What counts as a "burglary"? The federal statute contains no specific definition. The Supreme Court of the United States addressed that problem in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). State burglary laws vary a great deal: some do not require unlawful entry; others extend the crime to vehicles and even vending machines. Id . at 590–91, 599, 110 S.Ct. 2143, and 580, 110 S.Ct. 2143, citing United States v. Hill , 863 F.2d 1575, 1582 n.5 (11th Cir. 1989). Taylor held that a State's label of "burglary" does not control. Id . at 590, 110 S.Ct. 2143. Instead, Taylor adopted a "generic" definition of burglary for purposes of § 924(e) : "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Id . at 598, 110 S.Ct. 2143.

Taylor also decided how federal courts should analyze a State's burglary statute, and that method can be counter-intuitive. Taylor held that courts must use a formal "categorical approach" that "look[s] only to the fact of conviction and the statutory definition of the prior offense." Id. at 602, 110 S.Ct. 2143. The categorical approach focuses on "the elements of the statute of conviction, not ... the facts of each defendant's conduct." Id. at 601, 110 S.Ct. 2143. Limiting the inquiry to statutory elements flows from the text of the Armed Career Criminal Act, which "refers to ‘a person who ... has three previous convictions for—not a person who has committed —three previous violent felonies or drug offenses." Id. at 600, 110 S.Ct. 2143 (emphasis added), quoting 18 U.S.C. 924(e)(1).

Taylor added, however, that the sentencing court could "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 generic burglary"—such as entry of a building. In this narrow range of cases, the court may look to charging documents or jury instructions to determine the crime of conviction. Id. at 602, 110 S.Ct. 2143. This is known as the "modified categorical approach," which is at the heart of these appeals. We'll come back to it after explaining the facts of these appeals.

In these appeals, both appellants, Dennis Franklin and Shane Sahm, were sentenced for the federal crime of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Both were sentenced as armed career criminals under 18 U.S.C. § 924(e). That raised the statutory sentencing range from a maximum of ten years in prison to a minimum of fifteen years in prison and a maximum of life in prison. The decisive prior convictions for both Franklin and Sahm were Wisconsin burglary convictions under Wis. Stat. § 943.10(1m).

There is no doubt that what Franklin and Sahm actually did to earn their prior convictions was burglarize buildings or structures, as prohibited by § 943.10(1m)(a). Their actions fit within the "generic burglary" definition adopted in Taylor"an unlawful or unprivileged entry into, or remaining in, a building or other structure , with intent to commit a crime."

But under the categorical method adopted in Taylor , what counts is not what they actually did but the statutory definition of the crime. Taken as a whole, Wis. Stat. § 943.10(1m) is considerably broader than the "generic burglary" definition adopted in Taylor . The Wisconsin statute reaches burglaries of boats, trucks, and trailers, see id. at (c)(e), but the Taylor definition does not. Thus, if we apply the "categorical" approach to the whole burglary statute, then Franklin and Sahm cannot be sentenced as armed career criminals under 18 U.S.C. § 924(e). See, e.g., Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (conviction under California burglary statute that did not require unlawful entry did not count as violent felony under Armed Career Criminal Act, even where defendant admitted he had actually broken into and entered a building to commit a crime).

B. "Divisibility" and the "Modified Categorical Approach"

That reasoning takes us, in this field of federal statutory sentencing enhancements based on prior convictions, to the concepts of "divisibility" and the "modified categorical approach." The categorical approach is straightforward enough if the state statute of conviction contains only one set of elements defining a single crime. The sentencing court just compares that set to Taylor 's generic burglary to see if the elements match. The categorical approach is more difficult to apply if the statute in question is phrased alternatively, as many burglary statutes are—including Wisconsin's.

The Supreme Court has explained that alternatively phrased statutes come in two types: (1) those that list alternative elements (thus defining more than one crime within a single statute) and (2) those that list alternative means of committing an element of a single crime. See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). If the statutory alternatives are different elements , then the statute is considered "divisible" in the sense that it divides into multiple crimes. Mathis , 136 S.Ct. at 2249. For that kind of statute, the federal court must "determine what crime, with what elements, a defendant was convicted of" before counting the conviction as a predicate under the Armed Career Criminal Act. Id.

This brings into play the "modified categorical approach" mentioned above. It permits the sentencing court to review "a limited class of documents (...

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