United States of America v. Dennis Franklin

These consolidated appeals represent

another application of the “categorical approach” for

applying recidivist statutes. The specific question in these appeals

is whether convictions under a portion of the Wisconsin

* Circuit Judge Posner retired on September 2, 2017, and did not participate

in the decision of this case, which is being resolved by a quorum

of the panel under 28 U.S.C. § 46(d).

2 Nos. 16-1580 & 16-1872

burglary statute, Wis. Stat. § 943.10(1m)(a), qualify as convictions

for violent felonies under the federal Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). The outcome of

these appeals depends on whether the Wisconsin statute is

“divisible” or not, which depends in turn on the sometimes

slippery distinction between a crime’s “elements” and

“means.” In short, if the burglary statute is divisible, then we

must affirm; if it is not divisible, we must reverse. We find that

the statute is divisible, so we affirm.

I. Factual and Procedural Background

Both defendants in these consolidated appeals, Dennis

Franklin and Shane Sahm, pleaded guilty to possessing a firearm

as a felon. See 18 U.S.C. § 922(g)(1). The district court

found that both men had three prior burglary convictions that

were violent felonies under the ACCA. The court therefore

sentenced them both to the mandatory minimum of fifteen

years in prison. See § 924(e)(1). On appeal, Franklin and Sahm

contend that their prior convictions for burglary in Wisconsin

are not violent felonies under the ACCA so their sentences

could be no more than ten years in prison.

Franklin was convicted of being a felon in possession of a

firearm. On Thanksgiving Day in 2014, Madison police responded

to a report of a residential burglary in progress and

arrested Franklin at the scene. When searching the area, police

found a gun that Franklin had hidden nearby. Franklin

pleaded guilty to possessing a gun unlawfully. See 18 U.S.C.

§ 922(g)(1).

A probation officer recommended in the presentence report

that Franklin be sentenced as an armed career criminal.

See 18 U.S.C. § 924(e). The report explained that he had at

Nos. 16-1580 & 16-1872 3

least three convictions for violent felonies under the statute:

armed burglary in 1994, two burglaries and an attempted burglary

in 2001, and burglary in 2003, all in Wisconsin. Franklin

argued that he should not be sentenced as an armed career

criminal because Wisconsin’s burglary statute is broader than

the generic crime of burglary under the ACCA. The district

court ruled that Franklin was an armed career criminal and

imposed the mandatory minimum 180-month sentence.

Sahm’s story is similar. He stole three guns and sold them.

Sahm too was a convicted felon, and he was also charged with

and pleaded guilty to possessing a firearm as a felon. See 18

U.S.C. § 922(g)(1). Sahm had three relevant prior convictions:

burglary in 1997, and two burglaries in 2008, all in Wisconsin

for burglarizing “a building or dwelling.” See Wis. Stat.

§ 943.10(1m)(a). Sahm argued that his burglary convictions

were not for “generic burglary” and thus should not count as

violent felonies under the ACCA. The district court disagreed

and imposed the mandatory minimum 180-month sentence.

II. Analysis

The framework for our analysis is familiar because of the

volume of similar cases. Under the ACCA, a conviction for

“burglary” counts as a violent felony. 18 U.S.C.

§ 924(e)(2)(B)(ii). In Taylor v. United States, 495 U.S. 575, 598

(1990), the Supreme Court held that the federal statute requires

a conviction for “generic burglary,” which is defined,

regardless of labels under state law, as “an unlawful or unprivileged

entry into, or remaining in, a building or other

structure, with intent to commit a crime.” In evaluating a conviction

under the ACCA definition, Taylor further explained,

a sentencing court must use the “categorical approach,”

which focuses on the elements of the statutory offense, not the

4 Nos. 16-1580 & 16-1872

particular facts of the defendant’s crime. Id. at 601–02. Thus, if

a state burglary statute is broader than “generic burglary” by

applying, for example, to unlawful entries into vehicles as

well as buildings or structures, then a conviction does not

count under the ACCA definition even if the defendant in fact

committed the prior offense by unlawfully entering a building.

E.g., Mathis v. United States, 136 S. Ct. 2243, 2250 (2016);

see also Descamps v. United States, 570 U.S. 254, 261 (2013) (conviction

under California burglary statute that did not require

unlawful entry did not count as violent felony under ACCA).

So we look to the Wisconsin burglary statute. It 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. 1

1 In 2004 the Wisconsin burglary statute was renumbered, changing

from Wis. Stat. § 943.10(1)(a)–(f) to § 943.10(1m)(a)–(f), but the language

remained the same. We use the current numbering to refer to both versions.

Nos. 16-1580 & 16-1872 5

Because the Wisconsin statute extends to several types of

vehicles, it is broader than “generic burglary” under Taylor

and the ACCA. That does not end the inquiry, though. If the

statute is “divisible” among portions that are within the scope

of generic burglary and those that are outside it, then the sentencing

court may apply the “modified categorical approach.”

That allows the court to look at court records to determine

whether the defendant was convicted under a portion of the

statute within the scope of generic burglary. Shepard v. United

States, 544 U.S. 13 (2005). If he was, then the conviction may

count as a violent felony under the ACCA.

That’s how the notion of divisibility takes center stage in

these appeals. So how do we decide divisibility? The key is to

figure out whether the different locations in the Wisconsin

statute signal different elements and thus different crimes

(equals divisible) or are merely different means for committing

the same crime (equals not divisible).

The most extensive guidance from the Supreme Court on

this question appears in Mathis v. United States, 136 S. Ct. 2243,

2248 (2016). “Elements” are a crime’s “constituent parts,”

which a jury must find beyond a reasonable doubt or a defendant

must admit when pleading guilty. “Means” are extraneous

to the crime’s constituent parts; they are different factual

scenarios that do not create legal consequences. Id. A

crime counts as “burglary” and thus as a violent felony under

the ACCA if its elements—not the means of satisfying the elements—

are the same as or narrower than the generic definition

of burglary. Id. We review de novo whether a prior conviction

qualifies as a violent felony. United States v. Duncan,

833 F.3d 751, 753 (7th Cir. 2016).

6 Nos. 16-1580 & 16-1872

Mathis explains that some signals for determining whether

a statute lists separate offense elements or alternative means

of fulfilling an element are obvious. First, any ruling from the

state supreme court on the means v. elements question is dispositive,

as it was in Mathis itself. 136 S. Ct. at 2256. In this

case, though, the Supreme Court of Wisconsin has not addressed

the issue.

Second, the statute on its face may resolve the issue. For

example, if the alternatives carry different punishments, they

are elements of different crimes, id., but that is not the case

here. On the other hand, if the statute “offer[s] illustrative examples,”

then it lists means of committing the crime. Id. (internal

quotation marks omitted). The Wisconsin burglary statute

does not use such language. The statute could also “itself

identify which things must be charged (and so are elements)

and which need not be (and so are means).” Id.

Third, if the question is still unresolved, a court may

“peek” at “the record of a prior conviction itself”—such as indictments

and jury instructions. Id. at 2256–57. If the documents

charge the alternatives collectively, they may be means,

but if they charge one alternative to the exclusion of others,

they are likely elements. Id.

We recently applied Mathis to just one subsection of Wisconsin’s

burglary statute in United States v. Edwards, 836 F.3d

831, 838 (7th Cir. 2016), where we held that a prior burglary

conviction for violating § 943.10(1m)(a), the first subsection,

did not count as a “crime of violence” under the Sentencing

Guidelines. See U.S.S.G. § 4B1.2(a). At the time, the Guidelines

included burglary only of a “dwelling,” not burglary of

other buildings, as a crime of violence. (In this way, the old

Nos. 16-1580 & 16-1872 7

guideline definition differed from the generic burglary definition

used under the ACCA.) The first subsection of the Wisconsin

statute, which covers burglary of “any building or

dwelling,” is too broad to qualify as a crime of violence under

the older guideline definition unless the subsection itself is divisible.

We held in Edwards that subsection (a) is not divisible, explaining

that the structure of the entire burglary statute and

the phrasing of the subsections indicate that any particular

subsection is not divisible. See 836 F.3d at 837–38. That holding

in Edwards does not answer the question before us. First,

subsection (a) covering burglary of “any building or dwelling”

fits within the definition of generic burglary under the

ACCA, which refers to “a building or other structure.” Second,

the issue here is whether the Wisconsin burglary statute

as a whole is divisible among its subsections, not whether a

particular subsection itself is divisible.

In the absence of a definitive holding from the Wisconsin

Supreme Court, we start, as we did in Edwards, with the statute’s

text and structure. In the statute, all burglary crimes are

classified as “Class F” felonies, meaning that the subsections

carry the same punishment and thus are not necessarily distinct

elements. The statute opens by defining those crimes as

entering without consent “any of the following places” and

with intent either to steal or commit a felony, and then has six

subsections enumerating locations. These subsections cover

dwellings, railroad cars, ships, mobile homes, and cargo portions

of trucks. The last subsection, § 943.10(1m)(f), is a little

different, covering “a room within any of the above” locations,

so it overlaps each of the other subsections.

8 Nos. 16-1580 & 16-1872

We put aside subsection (f) for these appeals since they

present no issue under it. We conclude that the remaining

subsections in § 943.10(1m) are distinct and divisible. Each

subsection can be delineated from the others (i.e., buildings,

railroad cars, ships, motor homes, cargo portions of trucks).

The alternatives within each subsection overlap a great deal

(i.e., building v. dwelling, ship v. vessel, truck v. trailer, motor

home v. trailer home). As a result, we are not concerned as we

were in Edwards that a prosecutor could charge two burglary

counts under different subsections for one act. One might conceive

of some overlap between subsections at the margins—for

example, a houseboat could be both a dwelling and a ship.

But we think that the defendants overstate the concern about

double-charging. No subsection duplicates another in principle.

And the greater variety among the subsections, as compared

to within each of them, satisfies us that the subsections

signal distinct locations that are intended to be enumerated

alternative elements rather than mere “illustrative examples.”

As compared to the Iowa burglary statute in Mathis, the

Wisconsin burglary statute’s structure reinforces our conclusion.

The Iowa statute applies to burglarizing an “occupied

structure” and defines that term in a separate section.

See Iowa Code §§ 713.1, 702.12. By contrast, the Wisconsin

statute does not use a generic term for the locational element;

instead, it enumerates each potential location. This enumeration

means that Wisconsin prosecutors usually charge a specific

subsection for each burglary offense—something that

would be impossible under the Iowa statute. And indeed Wisconsin

courts nearly always report the subsection under

which the defendant was charged or convicted. See, e.g., State

v. Scruggs, 891 N.W.2d 786, 789 (Wis. 2017); State v. Hall,

193 N.W.2d 653, 654 (Wis. 1972); State v. Champlain,

Nos. 16-1580 & 16-1872 9

744 N.W.2d 889, 899 (Wis. App. 2007); but see, e.g., State v.

Lichty, 823 N.W.2d 830, 832 (Wis. App. 2012) (referring to entire

section where appeal involved other issues); State v.

Searcy, 709 N.W.2d 497, 503 (Wis. App. 2005) (same). Wisconsin’s

pattern jury instructions also tell trial judges that the location

(the stand-in term being “building”) “must be modified”

to reflect which place a defendant burglarized. See Wis.

Jury Instructions—Crim. § 1424 & n.2. That form of instruction

treats the location as an element.

Another way of considering the problem is to focus on the

requirement that all jurors agree on elements, but not necessarily

on means. See Richardson v. United States, 526 U.S. 813,

817 (1999); Descamps, 570 U.S. at 286 (Alito, J., dissenting)

(“[I]n determining whether the entry of a building and the entry

of a vessel are elements or means, the critical question is

whether a jury would have to agree on the nature of the place

that a defendant entered.”). We have trouble imagining a case

in which a jury could convict a Wisconsin defendant of burglary

where six jurors were convinced that the defendant burglarized

a retail store (a “building” under subsection (a))

while the other six were convinced that he burglarized a motor

home parked behind the store (under subsection (e)). But

unless a covered location is an element of the crime, as we believe

it is, jurors would not need to agree on the nature of the

burglarized location, at least among the different subsections.

In Edwards we expressed skepticism about Mathis’s third

step of “peeking” at the Shepard documents, at least for Wisconsin

convictions. We explained that under Wisconsin law

the complaint and the information often allege additional

facts that do not need to be proved to the jury. Edwards,

836 F.3d at 837–38. We also said that plea colloquies may not

10 Nos. 16-1580 & 16-1872

be helpful because they may contain unessential factual detail,

included only to help the defendant understand the

charges. Id. at 838. But we did not lay down an inflexible rule

forbidding a court from consulting these documents. We

merely urged caution in individual cases. The documents that

we have reviewed in this case all tell us that the different subparts

were charged and identified specifically in each case,

which is consistent with the other signals we have discussed

that the locations in different subsections are elements of separate

crimes.2

Our conclusion that the subsections of the Wisconsin burglary

statute are elements of different crimes is consistent

with the Eighth Circuit’s recent conclusion that the Wisconsin

burglary statute is a “textbook example” of a statute with different

crimes and elements, not just different means.

United States v. Lamb, 847 F.3d 928, 932 (8th Cir. 2017), petition

for cert. filed, No. 17-5152 (July 12, 2017), quoting

United States v. Jones, No. 04–362, 2016 WL 4186929, at *3

(D. Minn. Aug. 8, 2016). The Eighth Circuit recognized, as we

have, that the Wisconsin precedent and practice of reporting

the subsection under which a defendant is convicted supports

the conclusion that the subsections are distinct elements.

Lamb, 847 F.3d at 932.3

2 The parties have debated at some length the legislative history of

amendments to the burglary statute, see generally Minutes of Wis. Legislative

Council, Criminal Code Advisory Comm., June 5, 1954, at 15–16 &

July 23–24, 1954, at 7, 9, 11, but we find no reliable signals concerning the

issue before us.

3 In Lamb the Eighth Circuit cited a decision from the Supreme Court

of Wisconsin on a sexual-assault statute. That Wisconsin decision deNos.

16-1580 & 16-1872 11

To sum up, we apply Mathis to hold that subsection (a) of

the Wisconsin burglary statute, § 943.10(1m) is divisible from

the other subsections. Because it is divisible, the district court

properly used the modified categorical approach to determine

that Franklin and Sahm’s burglary convictions under

§ 943.10(1m)(a) for burglaries of buildings or dwellings fell

within the definition of generic burglary adopted in Taylor.

Their prior burglary convictions count as violent felonies under

the ACCA. The judgments of the district court are

AFFIRMED.

scribed one subsection of the statute as significantly different from the others,

and the Eighth Circuit saw this description as “strong evidence” that

the Supreme Court of Wisconsin would also consider the burglary subsections

as elements. 847 F.3d at 932, citing State v. Baldwin, 304 N.W.2d 742,

747 (Wis. 1981). The Lamb court cited in a footnote another Supreme Court

of Wisconsin decision finding that a child-enticement statute’s subsections

were part of “one offense with multiple modes of commission.” 847 F.3d

at 932 n.2, quoting State v. Derango, 613 N.W.2d 833, 839 (Wis. 2000). The

Eighth Circuit thought that it had “no rational way” to conclude which of

these competing cases should control the elements v. means question for

the burglary statute. 847 F.3d at 932 n.2. Like the Eighth Circuit, we cannot

predict how the Supreme Court of Wisconsin would reconcile these two

opposing cases concerning unrelated statutes, so we have not considered

them in our analysis.

Affirmed