United States v. Franklin

Decision Date06 June 2019
Docket NumberNo. 2018AP1346-CQ,2018AP1346-CQ
Citation2019 WI 64,387 Wis.2d 259,928 N.W.2d 545
Parties UNITED STATES of America, Plaintiff-Appellee, v. Dennis FRANKLIN and Shane Sahm, Defendants-Appellants.
CourtWisconsin Supreme Court

For the defendants-appellants, there were briefs filed by Shelley M. Fite and Federal Defender Services of Wisconsin, Madison. There was an oral argument by Shelly M. Fite.

For the plaintiff-appellee, there was a brief filed by Laura A. Przyblinski Finn, Scott C. Blader, and United States Attorney’s Office, Madison. There was an oral argument by Laura A. Przyblinski.

An amicus curiae brief was filed on behalf of State of Wisconsin by Amy C. Miller, assistant solicitor general, with whom on the brief were Ryan J. Walsh, chief deputy solicitor general, and Brad D. Schimel, attorney general. There was an oral argument by Amy C. Miller.


¶1 This case is before the court on a certified question from the United States Court of Appeals for the Seventh Circuit. United States v. Franklin, 895 F.3d 954 (7th Cir. 2018) ; see Wis. Stat. § 821.01 (2017-18).1 The question certified for determination is:

Whether the different location subsections of the Wisconsin burglary statute, Wis. Stat. § 943.10(1m)(a)-(f), identify alternative elements of burglary, one of which a jury must unanimously find beyond a reasonable doubt to convict, or whether they identify alternative means of committing burglary, for which a unanimous finding beyond a reasonable doubt is not necessary to convict?

¶2 Our answer to this certified question will aid the Seventh Circuit in determining the appropriate sentences for Dennis Franklin and Shane Sahm (together, the defendants), who had their sentences enhanced pursuant to the federal Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).

¶3 The defendants pleaded guilty to violations of 18 U.S.C. § 922(g)(1) for possessing firearms after having been previously convicted of a felony. Based upon their previous Wisconsin burglary convictions, the defendants were classified as armed career criminals and sentenced to a mandatory minimum of 15 years in prison pursuant to the ACCA. The defendants objected to their status as armed career criminals on appeal to the Seventh Circuit, where their cases were consolidated. A three-judge panel of the Seventh Circuit held that the defendants' prior burglary convictions were predicate violent felonies under the ACCA because each of the locations set forth in Wis. Stat. § 943.10(1m)(a)-(e) identify alternative elements for the crime of burglary making them each distinct crimes.2 The defendants filed a petition for rehearing en banc. They asserted that because the locational alternatives in § 943.10(1m)(a)-(f) provide alternative means of committing one element of the crime of burglary, the Wisconsin burglary statute is too broad to fall within the definition of burglary as a predicate violent felony under the ACCA. The Seventh Circuit granted the petition for rehearing, vacated its prior opinion, and certified the question of Wisconsin state law to this court.

¶4 To answer the certified question, we examine the four factors set forth in Derango: (1) the statutory text; (2) the legislative history and context of the statute; (3) the nature of the conduct; and (4) the appropriateness of multiple punishments. State v. Derango, 2000 WI 89, ¶¶14-15, 236 Wis. 2d 721, 613 N.W.2d 833. We conclude that Wis. Stat. § 943.10(1m)(a)-(f) identifies alternative means of committing one element of the crime of burglary under § 943.10(1m). Accordingly, a unanimous finding of guilt beyond a reasonable doubt as to a locational alternative in subsections (a)-(f) is not necessary to convict.


¶5 Under 18 U.S.C. § 922(g)(1), it is unlawful for a person who has been convicted of a felony to possess a firearm. The 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). The penalty increases, however, to a 15-year mandatory minimum under the ACCA for certain federal defendants who have three prior convictions for a "violent felony," including "burglary, arson, or extortion." 18 U.S.C. § 924(e). Section 924(e) does not define burglary. Consequently, for purposes of the ACCA, the United States Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), adopted the following "generic" definition of burglary: "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. To determine whether a defendant's past offense counts as an ACCA predicate, courts compare the elements of the crime of conviction with the elements of the "generic" definition of the crime, employing the "categorical approach." Mathis v. United States, ––– U.S. ––––, 136 S. Ct. 2243, 2247-48, 195 L.Ed.2d 604 (2016). The prior offense qualifies as an ACCA predicate if its elements are the same as, or narrower than, those of the generic offense. Id. at 2247. However, if the crime of conviction covers more conduct than the generic offense, then it does not qualify as an ACCA predicate, even if the defendant's actual conduct indisputably fits within the generic offense's boundaries. Id. at 2248.

¶6 The categorical approach can be difficult to apply if a statute is phrased alternatively, like Wisconsin's burglary statute, Wis. Stat. § 943.10(1m). As the United States Supreme Court has explained, alternatively phrased statutes come in two types: (1) those that list alternative elements (defining more than one crime within a single statute); and (2) those that list alternative factual means of committing a single element of a crime. See Mathis, 136 S. Ct. at 2249. " ‘Elements’ are the ‘constituent parts’ of a crime's legal definition—the things the prosecution must prove to sustain a conviction.’ " Id. at 2248 (quoted source omitted). In contrast, means "spell[ ] out various factual ways of committing some component of the offense," that a jury need not unanimously find. Id. at 2249. The appropriate sentences for the defendants turn on whether the locational alternatives set forth in subsections (a)-(f) of § 943.10(1m) are alternative means of committing one element of burglary or are alternative elements of burglary.


¶7 When faced with the question of whether the legislature "create[d] multiple offenses or a single offense with multiple modes of commission," this court has analyzed the following four factors: (1) the language of the statute; (2) the legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishments for the conduct. Derango, 236 Wis. 2d 721, ¶¶ 14-15, 613 N.W.2d 833 ; see also State v. Hammer, 216 Wis. 2d 214, 220, 576 N.W.2d 285 (Ct. App. 1997) ; Manson v. State, 101 Wis. 2d 413, 422, 304 N.W.2d 729 (1981). The objective of this inquiry is to determine whether the legislature "intend[ed ] to create multiple, separate offenses, or a single offense capable of being committed in several different ways." Derango, 236 Wis. 2d 721, ¶ 15, 613 N.W.2d 833 ; see also Manson, 101 Wis. 2d at 422, 304 N.W.2d 729.

¶8 In Derango, this court was faced with the question of whether Wis. Stat. § 948.07"creates multiple offenses or a single offense with multiple modes of commission." Derango, 236 Wis. 2d 721, ¶ 14, 613 N.W.2d 833. Section 948.07 read:

Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class BC felony:
(1) Having sexual contact or sexual intercourse with the child in violation of s. 948.02 or 948.095.
(2) Causing the child to engage in prostitution.
(3) Exposing a sex organ to the child or causing the child to expose a sex organ in violation of s. 948.10.
(4) Taking a picture or making an audio recording of the child engaging in sexually explicit conduct.
(5) Causing bodily or mental harm to the child.
(6) Giving or selling to the child a controlled substance or controlled substance analog in violation of ch. 961.

Id., ¶ 16. The Derango court examined the four factors and determined that the statute created one offense of causing a child to go into a secluded place "with any of six possible prohibited intents." Jury unanimity as to intent was therefore not required. Id., ¶ 17.

¶9 The defendants argue that application of the four Derango factors leads to the conclusion that the legislature intended to create a single offense of burglary with multiple means of commission.3 The federal government asserts that the Derango factors support its position that subsections (a)-(f) identify alternative locational elements requiring jury unanimity yet also maintains that the holding in Derango should be limited to the child enticement statute at issue in that case. We analyze the Derango factors and conclude that Wis. Stat. § 943.10(1m)(a)-(f) sets forth alternative means of committing one element of burglary.

¶10 We begin with an examination of the plain language of the statute. Wis. Stat. § 943.10(1m)(a)-(f) provides:

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.

The straightforward language of § 943.10(1m) creates one offense with multiple means of commission. Burglary can be broken down into the following elements: intentional entry, without consent, and with intent to steal...

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