United States v. Haney

840 F.3d 472, 2016 U.S. App. LEXIS 19404, 2016 WL 6298695
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 27, 2016
DocketNo. 16-1513
StatusPublished
Cited by17 cases

This text of 840 F.3d 472 (United States v. Haney) 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. Haney, 840 F.3d 472, 2016 U.S. App. LEXIS 19404, 2016 WL 6298695 (7th Cir. 2016).

Opinion

PER CURIAM.

Charles Haney pled guilty to possessing a gun as a felon. See 18 U.S.C. § 922(g)(1). The district court found that Haney had at least three prior convictions that qualified as “violent felonies” under the Armed Career Criminal Act and sentenced him to [474]*474the mandatory minimum of fifteen years’ imprisonment. See id. § 924(e)(1). On appeal Haney argues that, in light of recent decisions by this court and the Supreme Court, his prior convictions for burglary in Illinois are not appropriate predicates under the ACCA. We agree, vacate the district court’s judgment, and remand for re-sentencing.

Police in Illinois discovered a gun in Haney’s van during a routine traffic stop. Haney was a convicted felon at the time, so he was charged with and pled guilty to a violation of 18 U.S.C. § 922(g)(1).

A probation officer prepared a presen-tence investigation report and recommended that Haney be sentenced as an armed career criminal. To qualify for that status, a defendant must have prior convictions for violent felonies committed on three different occasions. See 18 U.S.C. § 924(e)(1). The statute defines a violent felony as any crime punishable by more than a year in prison 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, [or] involves use of explosives.” Id. § 924(e)(2)(B). The presentence report identified three predicate convictions: (1) burglary of an Illinois store in 1975 in violation of 38 ILCS § 19-1 (1978) 1; (2) armed bank robbery in the Northern District of Illinois in 1977; and (3) aggravated assault in Pennsylvania in 1990. The report also listed that Haney had an additional conviction for burglary in Illinois in 1972 and two additional convictions for aggravated assault in Pennsylvania in 1990. But the report did not cite those additional convictions as potential predicates.

Haney argued that his convictions for burglary could not serve as predicates under- the ACCA, citing three Supreme Court cases: Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Taylor, the Court explained that “burglary” in § 924(e) (2) (B) (ii) refers to burglary in the “generic sense,” which “contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495 U.S. at 598, 110 S.Ct. 2143. In Descamps, the Court concluded that a California burglary statute could not serve as a predicate offense under the ACCA because the statute was broader than generic burglary in that it did not require an unlawful breaking and entering, as most burglary laws do; 133 S.Ct. at 2285-86. And in Johnson, the Court declared unconstitutionally vague the ACCA’s “residual clause,” i.e., a part of § 924(e)(2)(B)(ii) that defined violent felonies as offenses involving “conduct that presents a serious potential risk of physical injury to another.” 135 S.Ct. at 2563. In light of these precedents, Haney argued that his convictions for burglary are not violent felonies because (1) the relevant statute does not have as an element a use or threat of physical force, as required under § 924(e)(2)(B)(i); (2) the statute does not have as an element an unlawful breaking and entering as required to constitute “burglary” under § 924(e)(2)(B)(ii); and (3) after Johnson, a conviction is not a violent crime merely because it presents a “serious potential risk of physical injury to another,” § 924(e)(2)(B)(ii). Haney did not challenge the report’s conclusion that his convictions for armed bank robbery and aggravated assault were violent felonies.

The district court overruled Haney’s objection to his designation as an armed [475]*475career criminal, noting that we already had decided that a district court need not rely on the ACCA’s problematic residual clause to count residential burglary in Illinois as a violent felony, see Dawkins v. United States, 809 F.3d 953, 954-56 (7th Cir. 2016) (per curiam) (denying application to file successive petition under 28 U.S.C. § 2255). The dissent in Dawkins, however, expressed concern that Johnson and Des-camps may have undermined our decisions interpreting Taylor. 809 F.3d at 956-58 (Ripple, J., dissenting). Although the district court agreed with the dissent—opining that “under Descamps, a conviction for burglary in Illinois should not qualify as a violent felony for purposes of the ACCA”—the court concluded that it was bound by the majority’s decision in Daw-kins. The court therefore sentenced Haney as an armed career criminal and imposed the mandatory minimum sentence of fifteen years’ imprisonment.

On appeal, the parties now agree that, given recent developments in the law, Haney’s burglary convictions cannot count as predicate convictions under the ACCA. They come to this conclusion, however, for reasons different than those argued below. Now, the parties focus on the 1973 burglary statute’s “locational element[s].” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2250, 195 L.Ed.2d 604 (2016). In Mathis the Supreme Court declared that burglary in Iowa does not qualify as a predicate violent felony offense under the ACCA because it is broader than the “generic” offense of burglary listed in § 924(e)(2)(B)(ii)—generic burglary requires unlawful entry into a building or other structure, whereas the Iowa burglary statute also includes entries into vehicles. 136 S.Ct. at 2250-51, 2257 (2016). And in United States v. Edwards this court, applying Mathis, . concluded that Wisconsin’s burglary statute also does not constitute a crime of violence under the Sentencing Guidelines for similar reasons; Nos. 15-2552, 836 F.3d 831, 837, 2016 WL 4698952, at *4-6 (7th Cir. Sept. 8, 2016) (finding Wisconsin’s burglary statute— proscribing burglary of locations such as “building[s] or dwelling[s] ... enclosed railroad ear[s] ... [and] enclosed portions] of any ship or vessel”—“cover[s] a greater swath of conduct” than the éle-ments of the Guidelines offense (citing Mathis, 136 S.Ct. at 2251)). The Illinois burglary statute at the time of Haney’s 1975 conviction, the parties agree, similarly included locations other than a “building or other structure,” falling outside the “generic” offense as defined by Taylor.

We agree with the parties that Haney’s Illinois burglary convictions are not violent felonies under the ACCA. When Haney was twice convicted of burglary in the early 1970s, the relevant statute applied not only to. buildings but also , to vehicles, such as “housetrailer[s], watercraft, aircraft, motor vehicle[s] ... [and] railroad cartel.” 38 ILCS § 19-1 (1971); id

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Bluebook (online)
840 F.3d 472, 2016 U.S. App. LEXIS 19404, 2016 WL 6298695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-haney-ca7-2016.