United States v. Franklin

895 F.3d 954
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 17, 2018
DocketNos. 16-1580 & 16-1872
StatusPublished
Cited by26 cases

This text of 895 F.3d 954 (United States v. Franklin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Franklin, 895 F.3d 954 (7th Cir. 2018).

Opinion

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 *956the 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.

*957What 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

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Cite This Page — Counsel Stack

Bluebook (online)
895 F.3d 954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-franklin-ca7-2018.