895 F.3d 954
7th Cir.2018Background
- Two defendants (Franklin and Sahm) convicted in federal court under 18 U.S.C. § 922(g) were sentenced as armed career criminals under 18 U.S.C. § 924(e) based on prior Wisconsin burglary convictions under Wis. Stat. § 943.10(1m).
- Wisconsin's burglary statute lists multiple location-based subsections (a)–(f) (building/dwelling, enclosed railroad car, ship portion, locked cargo portion of truck/trailer, motor/trailer home, room within any of the above).
- Under Taylor v. United States, federal courts apply a "categorical" (and sometimes "modified categorical") approach to determine whether a prior state burglary conviction qualifies as "generic burglary" for ACCA purposes.
- Mathis distinguishes statutes that are "divisible" (alternative elements → modified categorical approach allowed) from those that list alternative means (indivisible → categorical approach only).
- The dispositive question: do the location subsections of Wis. Stat. § 943.10(1m)(a)–(f) constitute alternative elements (making the statute divisible) or only alternative means of committing a single burglary offense (indivisible)?
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 943.10(1m)(a)–(f) list alternative elements (divisible) or alternative means (indivisible) | Government: subsections identify alternative elements (jury must unanimously find the specific location; statute says "any of the following places") | Defendants: subsections are alternative means; Wisconsin precedent (e.g., Derango) and charging practice support indivisibility | Seventh Circuit granted rehearing, vacated prior opinion, and certified the question to the Wisconsin Supreme Court for authoritative state-law answer |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (established "generic burglary" definition and categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (distinguished divisible statutes (elements) from indivisible statutes (means); authorized modified categorical approach only for divisible statutes)
- Descamps v. United States, 570 U.S. 254 (applied categorical approach to reject nonmatching state burglary statute)
- State v. Derango, 236 Wis.2d 721 (Wis. 2000) (interpreted analogous statutory alternatives as means in child-enticement context; relied on by defendants)
- United States v. Edwards, 836 F.3d 831 (7th Cir. 2016) (addressed divisibility issues under Wisconsin burglary provision for sentencing-guidelines context; relied on by defendants)