Van Cannon v. United States

• Decision Date: 16 May 2018
• Docket Number: No. 17-2631,17-2631
• Citation: 890 F.3d 656
• Parties: Jerry L. VAN CANNON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

890 F.3d 656

Jerry L. VAN CANNON, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 17-2631

United States Court of Appeals, Seventh Circuit.

Argued January 18, 2018

Decided May 16, 2018

Shelley M. Fite, Attorney, FEDERAL DEFENDER SERVICES OF WISCONSIN, INC., Madison, WI, Petitioner-Appellant.

David Brian Goodhand, Attorney, DEPARTMENT OF JUSTICE, Criminal Division, Washington, DC, Alice H. Green, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Madison, WI, for Respondent-Appellee.

Before Sykes and Hamilton, Circuit Judges, and Lee, District Judge.^*

Sykes, Circuit Judge.

In 2009 Jerry Van Cannon pleaded guilty to possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). He was sentenced under the Armed Career Criminal Act ("ACCA"), which imposes higher penalties on § 922(g) violators who have three prior convictions for a "violent felony" or "serious drug offense." Id. § 924(e). Van Cannon’s presentence report identified five qualifying ACCA predicates, including Iowa convictions for burglary and attempted burglary and a Minnesota conviction for second-degree burglary. The district judge accepted this tally and imposed the mandatory minimum 15-year prison term.

In 2015 the Supreme Court invalidated, on vagueness grounds, the provision in the "violent felony" definition known as the "residual clause." Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). Within a year Van Cannon filed for relief under 28 U.S.C. § 2255 in light of Johnson . A few days later, the Supreme Court held that Iowa burglary does not qualify under another part of the definition. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2257, 195 L.Ed.2d 604 (2016).

The government conceded the Johnson error. The Iowa attempted burglary was a residual-clause offense and no longer counted toward Van Cannon’s ACCA total. And Mathis knocked out the Iowa burglary. Still, three predicates remained, so the government argued that the Johnson error was harmless. The judge agreed and denied § 2255 relief.

A few weeks later, the judge withdrew her order. A recent Eighth Circuit opinion had cast doubt on whether one of the remaining predicates—the Minnesota second-degree burglary—still counted after Mathis . See United States v. McArthur , 836 F.3d 931, 933 (8th Cir. 2016), amended & superseded by United States v. McArthur , 850 F.3d 925 (8th Cir. 2017). The judge appointed counsel and ordered briefing. Van Cannon argued that Minnesota second-degree burglary is not an ACCA predicate; the government maintained that it is. The judge ultimately sidestepped the issue, concluding instead that Van Cannon’s claim was untimely.

We reverse. First, Van Cannon’s § 2255 claim was timely; he properly challenged his sentence within one year of Johnson . Second, we agree with the Eighth Circuit that the Minnesota crime of second-degree burglary does not qualify as an ACCA predicate. See United States v. Crumble , 878 F.3d 656, 661 (8th Cir. 2018) ; see also McArthur , 850 F.3d at 937–40. A burglary counts for ACCA purposes only if its elements match the elements of "generic" burglary, defined as "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor v. United States , 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Minnesota statute covers a broader swath of conduct than generic burglary. It permits conviction without proof of burglarious intent—that is, without proof that the offender had the intent to commit a crime at the moment he unlawfully entered or unlawfully "remained in" the building or structure. Accordingly, the Minnesota burglary drops out of the ACCA total, leaving only two predicates. Van Cannon is entitled to resentencing.

I. Background

Van Cannon is no stranger to trouble with the law. From 1984 to 2008, he was convicted of multiple crimes in three states. As relevant here, his record includes an Iowa second-degree burglary (1984), an Iowa attempted burglary (1992), an Iowa drug felony (1993), a Wisconsin armed robbery (1996), a Minnesota second-degree burglary (2003), and a Wisconsin fleeing (2008).

In the fall of 2008, police received a tip that Van Cannon was selling methamphetamine out of a motel in Eau Claire County, Wisconsin. Several days later the tipster reported that Van Cannon had expressed interest in purchasing an assault rifle and hinted at possible robberies in the near future.

The informant agreed to cooperate with police and introduced Van Cannon to an undercover officer posing as a source for firearms. Van Cannon told the officer he wanted "nothing less than a .357 magnum." Recorded phone conversations followed, and the officer eventually called Van Cannon and offered to sell him a Rock Island Armory .45-caliber pistol for $400. Van Cannon was short on cash, so the officer agreed to front the gun on the condition that Van Cannon would pay $800 to $900 after he completed a "job." The two met in a Walmart parking lot for the exchange. Van Cannon took possession of the gun and was promptly arrested.

A grand jury indicted Van Cannon for possessing a firearm as a felon in violation of § 922(g)(1). He pleaded guilty as charged. The crime ordinarily carries a 10-year maximum, see 18 U.S.C. § 924(a)(2), but the ACCA sets a 15-year minimum term and lifts the maximum to life in prison if the defendant has three or more prior convictions for a "violent felony" or "serious drug offense," § 924(e).

The ACCA defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that

• "has as an element the use, attempted use, or threatened use of physical force against the person of another";

• "is burglary, arson, or extortion, [or] involves the use of explosives"; or

• "otherwise involves conduct that presents a serious potential risk of physical injury to another."

§ 924(e)(2)(B). The first part of the definition is known as the "force clause"; the second clause lists specific qualifying offenses, most notably burglary; and the third clause is the "residual clause."

The presentence report ("PSR") identified five qualifying ACCA predicates: Iowa convictions for burglary and attempted burglary, the Iowa drug offense, the Wisconsin armed robbery, and the Minnesota second-degree burglary. Van Cannon’s Wisconsin fleeing conviction also qualified at the time, see Sykes v. United States , 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), overruled by Johnson , 135 S.Ct. 2551, but the PSR didn’t include it in the ACCA count, perhaps because it was surplus. The judge accepted the PSR’s list of qualifying predicates and sentenced Van Cannon to the statutory minimum 15-year prison term.

In June 2015 the Supreme Court invalidated the residual clause as unconstitutionally vague. Johnson , 135 S.Ct. at 2563. In June 2016, just before the expiration of the one-year limitations period, see § 2255(f), Van Cannon moved pro se to vacate his sentence in light of Johnson . A few days later, the Supreme Court held that Iowa burglary is not an ACCA predicate. Mathis , 136 S.Ct. at 2257.

In response to the § 2255 motion, the government agreed that Van Cannon’s Iowa attempted-burglary and Wisconsin fleeing convictions were residual-clause offenses and thus no longer qualified after Johnson . The government also conceded that the Iowa burglary dropped out as an ACCA predicate in light of Mathis . But three convictions remained—the Iowa drug offense, the Wisconsin armed robbery, and the Minnesota second-degree burglary—so the government argued that the Johnson error was harmless. The judge agreed and denied the motion.

About a month later, the judge withdrew her order based on the Eighth Circuit’s decision in McArthur , 836 F.3d at 933, which caused her to question whether the Minnesota burglary conviction still qualified as an ACCA predicate after Mathis . The judge appointed counsel for Van Cannon and ordered the parties to brief the issue. In the meantime, the Eighth Circuit issued a new opinion in McArthur unequivocally holding that the Minnesota crime of third-degree burglary is not an ACCA predicate. 850 F.3d at 937–40. Minnesota second-degree burglary—Van Cannon’s crime of conviction—is defined in much the same way as third-degree burglary, only the second-degree crime is committed in particular places (e.g., a dwelling) or with burglarious tools.¹ Compare MINN. STAT. § 609.582(2)(a)with § 609.582(3).

Now represented by counsel, Van Cannon urged the judge to follow the Eighth Circuit’s decision in McArthur , vacate the 15-year sentence, and resentence him without the ACCA enhancement. The government argued that McArthur was wrongly decided. In the end the judge did not reach the merits question. She held instead that Van Cannon’s § 2255 claim was untimely and dismissed it.

Van Cannon appealed. While the appeal has been pending, the Eighth Circuit applied its reasoning in McArthur to the Minnesota crime of second-degree burglary, holding that it is not an ACCA predicate. Crumble , 878 F.3d at 661.

II. Discussion

Van Cannon argues, as he did in the district court, that his 15-year sentence is unlawful because Minnesota second-degree burglary—one of three available ACCA predicates after Johnson —does not qualify as a violent felony. Before we take up that merits question, we pause to clear some procedural underbrush.

A. Sua Sponte Vacatur

As we’ve explained, the judge initially agreed with the government that the Johnson error was harmless and denied the § 2255 motion on the merits. A few weeks later, she withdrew that order sua sponte. The government did not object to this procedural move, either in the district court or here. That would ordinarily be a waiver, but it’s not clear whether the judge’s action affects appellate jurisdiction.

Probably not, but in an abundance of caution, we briefly address the matter.

Rule 60(b) of the Federal Rules of Civil Procedure permits the court "[o]n motion and...