884 F.3d 331
7th Cir.2018Background
- Defendants Dennis Franklin and Shane Sahm pleaded guilty to possessing firearms as felons under 18 U.S.C. § 922(g)(1); district court sentenced each to the ACCA mandatory minimum (15 years) after finding three prior Wisconsin burglary convictions counted as ACCA violent felonies.
- The prior convictions were under Wis. Stat. § 943.10(1m)(a) (burglary of “any building or dwelling”) and other subsections of § 943.10(1m) enumerating locations (rail cars, ships, locked cargo portions, motor homes, rooms).
- The legal question: whether Wisconsin’s burglary statute is divisible into separate crimes by subsection (so courts may apply the modified categorical approach) or instead lists alternative means for a single offense (requiring the categorical approach and barring use of broader statutory variants).
- If divisible, convictions under § 943.10(1m)(a) (buildings/dwellings) qualify as generic burglary under Taylor and count as ACCA violent felonies; if indivisible, some convictions could be broader than generic burglary and not count.
- The Seventh Circuit analyzed statutory text, structure, Wisconsin practice (charging and jury instructions), prior Seventh Circuit precedent (Edwards), and the Eighth Circuit’s Lamb decision to determine divisibility and whether the district court properly used the modified categorical approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wis. Stat. § 943.10(1m) is divisible by enumerated locations | Franklin/Sahm: statute lists alternative means, not separate elements; indivisible | Government: subsections enumerate distinct location elements; divisible | Divisible — subsections are elements distinguishing different crimes |
| Whether convictions under § 943.10(1m)(a) qualify as "generic burglary" under ACCA | Franklin/Sahm: (a) may be broader than generic burglary when statute viewed as indivisible | Government: (a) covers buildings/dwellings which match generic burglary | Yes — (a) matches generic burglary and counts as ACCA violent felony |
| Whether district court could use modified categorical approach | Franklin/Sahm: modified approach inappropriate if statute indivisible | Government: modified approach proper because subsections are elements and records show subsection charged | Yes — modified categorical approach properly used to identify subsection (a) convictions |
| Whether prior Seventh Circuit decision (Edwards) controls outcome | Defendants: Edwards suggests indivisibility of subsections | Government: Edwards addressed different question (guideline definition) and not dispositive here | Edwards not controlling; court distinguishes Edwards and affirms ACCA enhancement |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishes "generic burglary" and the categorical approach)
- Shepard v. United States, 544 U.S. 13 (describes permissible records for the modified categorical approach)
- Descamps v. United States, 570 U.S. 254 (clarifies categorical vs. modified categorical approaches)
- Mathis v. United States, 136 S. Ct. 2243 (distinguishes elements from means; guides divisibility analysis)
- United States v. Edwards, 836 F.3d 831 (7th Cir. 2016) (prior Seventh Circuit decision on Wisconsin burglary subsections in a different sentencing-context)
- United States v. Lamb, 847 F.3d 928 (8th Cir. 2017) (held Wisconsin burglary statute subsections indicate distinct elements; supportive authority)