UNITED STATES of America, Plaintiff-Appellee, v. Justin EDWARDS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Ryan Pouliot, Defendant-Appellant.
Nos: 15-2373 & 15-2374 No. 15-2552
United States Court of Appeals, Seventh Circuit.
Argued December 10, 2015 Decided September 8, 2016
831 F.3d 831
A sentencing judge must “provide ‘some description of the reliable evidence used to support the finding and the method used to calculate it,‘” United States v. Garrett, 757 F.3d 560, 572-73 (7th Cir. 2014), quoting United States v. Claybrooks, 729 F.3d 699, 707 (7th Cir. 2013). These cases involve original sentencing, but the principle they enunciate is, as held in such cases as United States v. Goings, 407 Fed.Appx. 967, 969 (7th Cir. 2011), and United States v. Marion, 590 F.3d 475, 477-78 (7th Cir. 2009), equally applicable to a resentencing, as in this case.
I am mindful that the judge offered an alternative, unrelated basis for denying the defendant‘s motion: that the defendant had been properly sentenced under a different guideline, the guideline for career offenders. But as the government concedes, the defendant was not sentenced under that guideline. So the judge had no alternative to the 450 kilogram finding as a basis for the defendant‘s motion. But he didn‘t know that, and for all we know his mistaken belief in an alternative ground for adhering to his original sentence made him all the more casual in estimating drug levels.
Shelley M. Fite, Kelly A. Welsh, Attorneys, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Defendants-Appellants.
Before POSNER, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge.
In separate cases Justin Edwards and Ryan Pouliot pleaded guilty to firearms offenses that carry an enhanced base offense level under the Sentencing Guidelines if the defendant has a prior conviction for a “crime of violence.” See
To determine whether a prior conviction counts as a crime of violence requires a categorical approach that focuses on the statutory definition of the crime of conviction. If state law defines the offense more broadly than the Guidelines, the prior conviction doesn‘t qualify as a crime of violence, even if the defendant‘s conduct satisfies all of the elements of the Guidelines offense. In a narrow set of circumstances, the sentencing court may go one step beyond the statute itself. When a single statute creates multiple offenses, the court may consult a limited universe of documents to determine which offense the defendant was convicted of committing. This inquiry is called the “modified categorical approach,” but it only applies to “divisible” statutes. The Supreme Court recently clarified that a statute is considered divisible only if it creates multiple offenses by setting forth alternative elements. See United States v. Mathis, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).
Wisconsin defines burglary more broadly than the Guidelines: The relevant statute prohibits burglary of a “building or dwelling.”
After Mathis, however, it‘s clear that this recourse to state-court charging documents was improper. The relevant subsection of Wisconsin‘s burglary statute sets forth alternative means of satisfying the location element of the state‘s burglary offense. Accordingly, we vacate the sentences and remand for resentencing.
I. Background
A. Edwards
In 2013 Justin Edwards was charged with possessing a firearm as a felon, see
Two disputes arose at sentencing. First, the judge determined that Edwards‘s prior Wisconsin conviction for burglary of a “building or dwelling,”
Second, and again over Edwards‘s objection, the judge declined to apply an acceptance-of-responsibility reduction under
B. Pouliot
In an unrelated case in the same district, Ryan Pouliot was charged with possessing a firearm and ammunition as a felon, and he too pleaded guilty. At sentencing the judge determined that Pouliot‘s prior Wisconsin burglary conviction qualified as a crime of violence under
II. Discussion
Edwards and Pouliot challenge the application of the crime-of-violence enhancement based on their Wisconsin burglary convictions. Edwards also challenges the judge‘s refusal to apply an acceptance-of-responsibility reduction under
A. Crime-of-Violence Enhancement
Whether a prior conviction counts as a crime of violence is a question of law that we review de novo. United States v. Woods, 576 F.3d 400, 408 (7th Cir. 2009). The version of the Guidelines in effect when the defendants were sentenced listed “burglary of a dwelling” as a qualifying “crime of violence.”
1. Divisibility
The concept of divisibility is an outgrowth of the categorical approach that governs the crime-of-violence determination under the Sentencing Guidelines.2 See Mathis, 136 S.Ct. at 2248-49. The categorical approach disregards the facts underly-
We say “most cases” because the categorical approach “may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements” of the Guidelines offense. Id. This occurs when a statute is “divisible,” meaning it “sets out one or more elements of the offense in the alternative.” Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under these circumstances a court may “consult a limited class of documents ... to determine which alternative formed the basis of the defendant‘s prior conviction.” Id. The documents that may be consulted include charging papers, jury instructions, and any available plea agreements or plea colloquies. Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). This variant of the categorical approach has been dubbed the “modified categorical approach.” Descamps, 133 S.Ct. at 2281.
Until recently, the circuits were split regarding what qualifies as a divisible statute. Some had held that any statute containing a list of alternatives is divisible, while others distinguished between statutes that list alternative elements (thus creating multiple offenses) and statutes that create a single offense with alternative means of satisfying an element of that offense. See Mathis, 136 S.Ct. at 2250-51, 2251 n.1. The Supreme Court resolved the split in Mathis, holding that a statute is divisible only if it creates multiple offenses by listing one or more alternative elements. Id. at 2253-54. A statute that defines a single offense with alternative means of satisfying a particular element is indivisible and therefore not subject to the modified categorical approach. Id. at 2251.3
With this framework in place, we proceed to the central question presented here: Is subsection (a) of Wisconsin‘s burglary statute divisible? As we‘ve just explained, the answer depends on whether subsection (a) defines multiple offenses by listing alternative elements or instead lists alternative means of committing a single offense. “Elements are the constituent parts of a crime‘s legal definition—the things the prosecution must prove to sustain a conviction.” Mathis, 136 S.Ct. at 2248 (internal quotation marks omitted). Means, in contrast, are legally extraneous facts that “need neither be found by a jury nor admitted by a defendant.” Id.
The distinction is both familiar and important because “[c]alling a particular kind of fact an ‘element’ carries certain legal consequences.” Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). “[A] jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element” of an offense, but all members of the jury need not agree on “which of several possible means the defendant used to commit an element of the crime.” Id.; see also Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013). Multiplicity challenges likewise turn on the elements of the charged offenses: The Double Jeopardy Clause permits successive punishment or prosecution of multiple offenses arising out of the same conduct only if each offense contains a unique element. See United States v. Dixon, 509 U.S. 688, 696, 703-04, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)); accord United States v. Larsen, 615 F.3d 780, 788 (7th Cir. 2010) (“In multiplicity challenges the elements of each offense—not the specific offense conduct—determine whether two offenses are the same for purposes of double jeopardy.“). After Mathis the divisibility of a statute rests on the same distinction between elements and means. 136 S.Ct. at 2254-55.
Mathis offers some practical guidance for drawing the distinction in this particular context. First, a decision by the state supreme court authoritatively construing the relevant statute will both begin and end the inquiry. Id. at 2256; see also Schad v. Arizona, 501 U.S. 624, 636, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (“If a State‘s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination....“). Absent a controlling state-court decision, the text and structure of the statute itself may provide the answer. Mathis, 136 S.Ct. at 2256; see also Schad, 501 U.S. at 636, 111 S.Ct. 2491 (“The question whether statutory alternatives constitute independent elements of the offense ... is a substantial question of statutory construction.“). Failing those “authoritative sources of state law,” sentencing courts may look to “the record of a prior conviction itself” for the limited purpose of distinguishing between elements and means. Mathis, 136 S.Ct. at 2256-57.
The parties haven‘t directed us to a decision of the Wisconsin Supreme Court that construes subsection (a) of the state‘s burglary statute, and our own search has yielded none. Accordingly, we‘re on our own and turn first to the text and structure of the statute itself.
Whoever intentionally enters any of the following places without the consent of the 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.
The statute thus criminalizes the act of intentionally entering certain types of locations without consent and with the intent to steal or commit a felony. Subsections (a)-(f) describe the various locations that the statute covers, any one of which will satisfy the location requirement for burglary. The phrase “building or dwelling” is one of several disjunctively phrased lists that appear within these subsections.
The statute‘s text and structure suggest that the components of each subsection are merely “illustrative examples” of particular location types. Mathis, 136 S.Ct. at 2256. That‘s clearly true for subsections (c)-(e) given the virtually synonymous terms contained within these subsections. See, e.g., Manson v. State, 101 Wis.2d 413, 304 N.W.2d 729, 736 (1981) (“If the [statutory] alternatives are similar, one crime was probably intended.“). There‘s no plausible argument that the Wisconsin legislature intended to create a distinct offense for entering a “ship” as opposed to a “vessel,” a “truck” as opposed to a “trailer,” or a “motor home or other motorized home” as opposed to a “trailer home.” These subsections simply identify several different ways of describing a particular location.
To put the question in double-jeopardy terms: The statutory structure does not suggest that each subsection creates multiple crimes; a ship is a particular type of vessel, but a prosecutor couldn‘t charge two counts of burglary for a single act of breaking into a ship.
Read in this context, the phrase “building or dwelling” in subsection (a) is best understood as likewise providing two examples of enclosed structures rather than creating two separate offenses. Reinforcing that conclusion is the fact that those alternatives carry the same punishment. Cf. Mathis, 136 S.Ct. at 2256 (“If statutory alternatives carry different punishments, then under Apprendi they must be elements.“). On its face subsection (a) of Wisconsin‘s burglary statute thus identifies two means of committing a single crime rather than alternative elements.
To the extent that we have lingering uncertainties about whether “building” and “dwelling” are elements or means, Mathis suggests that we resolve them by looking to the record of the defendant‘s prior conviction. Because both defendants pleaded guilty in the underlying state-court proceedings, the record is limited to the charging documents and in Edwards‘s case, the plea colloquy. See Descamps, 133 S.Ct. at 2285 n.2 (noting that courts may look to any of the Shepard documents, including the “indictment, jury instructions, plea colloquy, and plea agreement“). The Court explained in Descamps (and reiterated in Mathis) that these documents will likely “reflect the crime‘s elements.” Id.; Mathis, 136 S.Ct. at 2256-57.
The Shepard documents are of little use here. Cf. Mathis, 136 S.Ct. at 2257 (“Of course, such record materials will not in every case speak plainly....“). Under Wisconsin law the complaint and information, which are the documents that initiate proceedings against a criminal defendant, must allege every element of the crime charged, but they may also (and usually do) include additional facts that need not be proved to the jury beyond a reasonable doubt. See State v. Baldwin, 101 Wis.2d 441, 304 N.W.2d 742, 746 (1981) (“[W]hile a charging document must always allege facts necessary to support a conviction, it does not follow that a conviction requires proof of every fact alleged in a complaint.“). Similarly, the recitation of a crime‘s elements during a plea colloquy may include as much or as little factual detail as necessary for the defendant to understand the nature of the charges against him. See State v. Brown, 293 Wis.2d 594, 716 N.W.2d 906, 2006 WI 100, ¶ 52. Indeed, the Wisconsin Supreme Court has “encourage[d] circuit court judges to translate legal generalities into factual specifics when necessary to ensure the defendant‘s understanding of the charges.” Id. ¶¶ 56, 58. The upshot of these rules is that in Wisconsin neither the charging documents nor a plea colloquy will necessarily reflect only the elements of a crime.
These two appeals illustrate a practical difficulty that can arise in applying the Mathis/Descamps rule. In the state-court proceedings against Edwards and Pouliot, the complaint and information specify that each defendant was charged with burgling a dwelling. If Wisconsin law required that all facts alleged in the charging documents be proved to a jury beyond a reasonable doubt, we could conclude that “dwelling” is an element. But because the charging documents may allege additional facts, the inclusion of “dwelling” tells us nothing about whether it‘s an element of burglary or simply a factual description of the type of enclosed structure the defendant entered. Edwards‘s plea colloquy is similarly unhelpful: It includes a recitation of the “elements of burglary as they apply to [Edwards‘s] case.” (Emphasis added.) In short, the record materials simply do not speak to whether “building” and “dwelling” are elements or means.
Left with only the text and structure of Wisconsin‘s burglary statute, we conclude that subsection (a) lists alternative means rather than elements and is therefore indivisible. That conclusion resolves this appeal: The elements of the crime of conviction “cover a greater swath of conduct” than the elements of the Guidelines offense, so the defendants’ burglary convictions cannot serve as predicate offenses under
B. Acceptance-of-Responsibility Reduction
Edwards raises an additional challenge to his sentence. He argues that the district judge erred by refusing to apply an acceptance-of-responsibility reduction under
Edwards has wisely omitted a challenge to the judge‘s finding that he continued to
I understand that [Edwards] thinks he should receive the credit because he did cooperate with investigators, he never contested his criminal conduct, and he was arrested without incident. However, the other part of that—what‘s required for that reduction is that he voluntarily terminate his criminal conduct and associations and he did not do that.
Edwards argues that the judge‘s reference to “what‘s required” for acceptance-of-responsibility credit means that she treated his continued criminal activity as categorically disqualifying.
We disagree. The judge expressly acknowledged that Edwards‘s guilty plea and admission of other relevant conduct weighed in favor of the downward adjustment. That‘s enough to satisfy us that she understood the law and considered factors both for and against an acceptance-of-responsibility reduction. See id. And given how extensive Edwards‘s continued criminal activity was, the judge‘s determination that it outweighed Edwards‘s cooperation was not clear error.
* * *
For the foregoing reasons, we VACATE the defendants’ sentences and REMAND for resentencing.