Jerry Van Cannon v. United States
890 F.3d 656
7th Cir.2018Background
- In 2009 Jerry Van Cannon pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and was sentenced under the ACCA to a 15-year mandatory minimum based on five predicate convictions listed in his PSR, including Minnesota second-degree burglary.
- The ACCA enhancement requires three prior convictions for a "violent felony" or "serious drug offense;" burglary is an enumerated "violent felony."
- After the Supreme Court invalidated the ACCA residual clause in Johnson (2015) and clarified the categorical approach in Mathis (2016), Van Cannon filed a § 2255 motion arguing his ACCA sentence was invalid.
- The government conceded several predicates fell away (Iowa attempted burglary as residual-clause, Iowa burglary under Mathis), but contended three predicates remained (Iowa drug felony, Wisconsin armed robbery, Minnesota second-degree burglary) so the error was harmless.
- The district court initially denied relief as harmless error, then withdrew that order, appointed counsel, ordered briefing, and ultimately dismissed the § 2255 motion as untimely.
- The Seventh Circuit reversed: (1) Van Cannon’s § 2255 filing was timely under § 2255(f)(3) in light of Johnson/Welch; and (2) Minnesota second-degree burglary is not a categorical ACCA burglary because the statute permits conviction without contemporaneous burglarious intent, so only two valid predicates remain and resentencing is required.
Issues
| Issue | Plaintiff's Argument (Van Cannon) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Timeliness of § 2255 motion | Motion timely under § 2255(f)(3) filed within one year of Johnson; Mathis was used to show prejudice from Johnson error | Mathis-based claim not a Johnson claim; Mathis not retroactive so limitations not reset | Van Cannon’s § 2255 was timely: he properly invoked Johnson and used Mathis/Taylor to show prejudice from Johnson error |
| Whether Minnesota 2nd-degree burglary qualifies as ACCA "burglary" | Statute is indivisible and its second alternative (trespass + later commission of crime) sweeps beyond generic burglary because it does not require intent at the time of entry/remaining | The statute’s trespass-plus-crime alternative fits within Taylor’s “remaining in” language; intent can be inferred from commission of the crime inside | Minnesota 2nd-degree burglary is indivisible and broader than generic burglary because it allows convictions without contemporaneous burglarious intent; it is not an ACCA predicate |
| Harmless error of Johnson exclusion | Because Minnesota burglary is not a predicate, only two qualifying convictions remain, so Johnson error was prejudicial | The remaining convictions (including Minnesota burglary) still supply three predicates so the Johnson error is harmless | Johnson error was not harmless; with Minnesota burglary excluded, only two ACCA predicates remain and the ACCA enhancement cannot stand |
| Sua sponte vacatur under Rule 60(b) | (Raised only in procedural discussion) Court may vacate sua sponte to correct prior disposition and consider merits | Government did not object to vacatur; question reserved | Circuit precedent allows district courts to vacate under Rule 60(b) sua sponte; court addressed issue but did not disturb prior practice here |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA residual clause as unconstitutionally vague)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (clarifying categorical approach and limiting which state burglaries qualify as ACCA predicates)
- Taylor v. United States, 495 U.S. 575 (1990) (defining "generic burglary" and endorsing the categorical approach)
- Descamps v. United States, 570 U.S. 254 (2013) (distinguishing divisible and indivisible statutes for the modified categorical approach)
- Welch v. United States, 136 S. Ct. 1257 (2016) (holding Johnson announced a new substantive rule that is retroactive on collateral review)
- United States v. McArthur, 850 F.3d 925 (8th Cir. 2017) (holding Minnesota burglary statute indivisible and broader than generic burglary)
- United States v. Crumble, 878 F.3d 656 (8th Cir. 2018) (applying McArthur reasoning to Minnesota second-degree burglary and holding it is not an ACCA predicate)