United States v. Miller

• Decision Date: 27 June 2013
• Docket Number: No. 11–3788.,11–3788.
• Citation: 721 F.3d 435
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Carl T. MILLER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

721 F.3d 435

UNITED STATES of America, Plaintiff–Appellee,

v.Carl T. MILLER, Defendant–Appellant.

No. 11–3788.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 2012.

Decided June 27, 2013.

Matthew L. Jacobs (argued), Attorney, Jonathan H. Koenig, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Patrick Kieran Cafferty (argued), Attorney, Patrick Cafferty Law Office, S.C., Racine, WI, for Defendant–Appellant.

Before WOOD, SYKES, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

When Carl T. Miller pleaded guilty to being a felon in possession of a firearm in 2011, the government contended that three of his prior convictions qualified as “violent felonies” requiring a mandatory minimum 15–year sentence under the Armed Career Criminal Act (ACCA). See18 U.S.C. § 924(e)(1). Miller did not dispute that his two burglary convictions qualified as violent felonies but he objected to the third prior offense—possession of a short-barreled shotgun in violation of Wisconsin law. The objection required the district court to construe the meaning of ACCA's “residual clause.” ¹ The district court denied the objection because our decision in United States v. Upton held that an indistinguishable Illinois offense qualified as an ACCA residual clause violent felony. 512 F.3d 394, 404 (7th Cir.2008). Miller argues that post- Upton Supreme Court decisions construing the residual clause require a different result. We agree that although ACCA remains unchanged since Upton, if nothing else, the approach for evaluating prior convictions under ACCA's residual clause has changed. See United States v. Jones, 689 F.3d 696, 699 (7th Cir.2012) (ACCA's “residual clause has eluded stable construction”), cert. denied,––– U.S. ––––, 133 S.Ct. 895, 184 L.Ed.2d 695 (2013). Accordingly, whether the mere possession of a short-barreled shotgun qualifies as a violent felony under ACCA deserves careful reconsideration, and in doing so, we find that Miller is correct; mere possession of a short-barreled shotgun is not a violent felony for purposes of ACCA.

Miller and the government agree that in order for his conviction for possession of a short-barreled shotgun in violation of Wisconsin Statute § 941.28(2) to qualify as an ACCA violent felony, it must do so under the residual clause. To determine whether a conviction fits within the residual clause, we apply a categorical approach by examining the offense's statutory elements as opposed to a defendant's actual conduct. See United States v. Fife, 624 F.3d 441, 445 (7th Cir.2010). The relevant text of the statute reads: “No person may ... possess ... a short-barreled shotgun or short-barreled rifle.” Wis. Stat. § 941.28(2).² We review de novo, see Fife, 624 F.3d at 445, and consider the offense as it ordinarily is committed, not trying to imagine whether in some unusual situations it could be committed in ways that pose more, or less, serious potential for risk of injury to another, see James v. United States, 550 U.S. 192, 207–09, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007).

The Supreme Court has addressed the residual clause four times in a recent five-year period.³ Perhaps no single statutory clause has ever received more frequent Supreme Court attention in such a short period of time or such a proliferation of lower court reaction. Although Congress has done nothing to add clarity to ACCA's residual clause, cases decided after Upton direct us to a different understanding of how to apply the residual clause.

We start with Begay v. United States, decided a few months after Upton, in which the Court considered whether driving under the influence of alcohol (DUI) was a violent felony under the residual clause. 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). The Court found that the listed examples, “burglary, arson, extortion, or crimes involving the use of explosives,” illustrated the types of crimes that fell within the law's scope and indicated “that the statute covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’ ” Id. at 142, 128 S.Ct. 1581 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The Court reasoned that the enumerated crimes limited residual clause offenses to those “that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” Id. at 143, 128 S.Ct. 1581. And DUI differed from burglary, arson, extortion, and crimes involving the use of explosives in one pertinent and important respect: the absence of “purposeful, violent, and aggressive conduct.” Id. at 145, 128 S.Ct. 1581. DUI compared closely to crimes imposing strict liability (or perhaps those involving negligence or recklessness), whereas the listed crimes revealed “a degree of callousness toward risk” and “an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Id. at 146, 128 S.Ct. 1581. In the end, the Court concluded that DUI was so “unlike the provision's listed examples” that Congress could not have intended the residual clause to cover it. Id. at 142, 128 S.Ct. 1581.

Upon the issuance of Begay, we began to understand residual-clause crimes to be those that “(1) present a serious potential risk of physical injury similar in degree to the enumerated crimes of burglary, arson, extortion, or crimes involving the use of explosives; and (2) involve the same or similar kind of ‘purposeful, violent, and aggressive’ conduct as the enumerated crimes.” Fife, 624 F.3d at 447 (quoting United States v. Dismuke, 593 F.3d 582, 591 (7th Cir.2010)).

But shortly thereafter, Sykes v. United States deemed Begay's “purposeful, violent, and aggressive” language to be redundant of the risk inquiry required by the residual clause, concluding that these adjectives served merely as a useful way to explain that the crime in Begay was akin to strict liability, negligence, and recklessness crimes. See––– U.S. ––––, 131 S.Ct. 2267, 2275–76, 180 L.Ed.2d 60 (2011). Instead, the predicate conviction's level of risk generally serves as the dispositive factor, id. at 2275, but the enumerated crimes—burglary, extortion, arson, and crimes involving use of explosives—still “provide guidance in” determining whether an offense presents a serious risk of physical injury to another, id. at 2273. The Court then determined that Indiana's prohibition on flight from an officer by vehicle fit within the residual clause because the inherent nature of the offense includes an indifference to the safety of property and persons; one “who takes flight and creates a risk of [a potentially violent and even lethal] dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others.” Id. “Burglary is dangerous because it can end in confrontation leading to violence,” which was true “but to an even greater degree” with fleeing police by vehicle. Id. (citing in part James, 550 U.S. at 200, 127 S.Ct. 1586). As it did in Chambers v. United States, 555 U.S. 122, 129, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), decided a year after Begay, the Court in Sykes also considered statistical data (although noting that such data is not dispositive), ultimately concluding that the risks posed by fleeing police by vehicle may exceed those of burglary and arson. 131 S.Ct. at 2274–75.

So, following Sykes, the question for us in this case is whether the risk posed by the possession of a short-barreled shotgun constitutes a serious risk of injury to another, using the offenses enumerated in § 924(e)(2)(B)(ii) as guides to evaluate the nature and degree of that risk. See Sykes, 131 S.Ct. at 2273. The concerns discussed in Begay—that the crime be “purposeful, violent, and aggressive”—are not present here because, as explained in Sykes, those terms simply explained why a crime akin to strict liability, negligence, or recklessness crimes does not fit within the residual clause. But criminal possession requires knowledge in Wisconsin, State v. Christel, 61 Wis.2d 143, 211 N.W.2d 801, 809 (1973), disapproved of on other grounds in State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752, 757 & n. 5 (1990); see also Doscher v. State, 194 Wis. 67, 214 N.W. 359, 360 (1927) (finding contraband on premises not enough to warrant conviction without showing “conscious possession”); Schwartz v. State, 192 Wis. 414, 212 N.W. 664, 665 (1927) (“Possession signifies some right of dominion or control over the thing possessed.”), so that distinguishes this case from Begay, and explains why we don't have to go through Begay's “purposeful, violent, and aggressive” analysis, see Sykes, 131 S.Ct. at 2275.

We therefore turn to the risk analysis as directed by Sykes and ask whether a violation of Wisconsin's short-barreled shotgun possession prohibition, in the ordinary case, presents a serious potential risk of physical injury as guided by the types and degrees of risks presented by the enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives. Id. at 2273. A short-barreled shotgun can be possessed in a variety of circumstances, ranging from a situation which is patently violent, for example, when one is used in the course of a robbery, to those in which violence is at best latent, such as when a short-barreled shotgun is hidden away at a home, perhaps even unloaded or disassembled. Wisconsin also recognizes the concept of joint and constructive possession. E.g., State v. Mercer, 324 Wis.2d 506, 782 N.W.2d 125, 131 (Wis.App.2010) (citing Schmidt v. State, 77 Wis.2d 370, 253 N.W.2d 204, 208 (1977)). But what is the ordinary case of mere possession? We know that we are not simply to imagine the ways in which the statute can be violated with minimal risk of physical injury to others. See James, 550 U.S. at 208, 127 S.Ct. 1586. Nor are we to hypothesize dangerous ways in which...