Unitеd States of America v. Wayne Michael Fisher, also known as Burrito
No. 21-2151
United States Court of Appeals For the Eighth Circuit
February 18, 2022
Before SMITH, Chief Judge, GRUENDER and KOBES, Circuit Judges.
Appeal from United States District Court for the District of Minnesota. Submitted: December 17,
GRUENDER, Circuit Judge.
Wayne Fisher appeals the district court‘s1 determination that his prior Minnesota first-degree burglary conviction qualifies as a violent felony under
I.
Wayne Fisher was charged with one count of conspiracy to distribute fifty grams or more of methamphetamine and two counts of possession with intent to distribute fifty grams or more of methamphetamine, in violation of
Fisher pleaded guilty to one count of possession with intent to distribute methamphetamine but objected to the enhanced
The district court overruled Fisher‘s objection to the sentence enhancement, concluding that his prior burglary conviction qualifies as a “serious violent felony” under
II.
We bеgin with Fisher‘s challenge to the district court‘s conclusion that his Minnesota conviction for first-degree burglary qualifies as a “serious violent felony” under
Although a person convicted of an offense involving fifty grams or more of methamphetamine normally faces a minimum sentence of 10 years’ imprisonment,
To determine whether a conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another,”
“[I]f the statute is divisible, setting forth ‘multiple, alternative versions of the crime,’ and not all of the alternatives satisfy the generic definition, then we apply the ‘modified categorical approach’ to decide which of the alternatives was the basis for the conviction.” McArthur, 850 F.3d at 937-38 (quoting Descamps, 570 U.S. at 262-65). “[T]o determine what crime, with what elements, a defendant was convicted of,” we may consider “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy).” Mathis, 136 S. Ct. at 2249; see also Shepard v. United States, 544 U.S. 13, 26 (2005). Then, we determine whether that crime is broader than the generic offense. Descamps, 570 U.S. at 263. The crime of conviction qualifies as a “serious violent felony” only if it is not broader than the generic offense. See id. at 260-65.
Minnesota‘s first-degree burglary statute makes it a crime to
enter[] a building without consent and with intent to commit a crime, or enter[] a building without consent and сommit[] a crime while in the building . . . if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building;
(b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in а manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or
(c) the burglar assaults a person within the building or on the building‘s appurtenant property.
Fisher and the Government agree that the statute is broader than the generic definition of burglary. Thus, we must determine whether the statute is divisible. See Mathis, 136 S. Ct. at 2249. Because (a) has a different punishment frоm (b) and (c), (a) “must be [an] element[],” indicating a separate crime. See id. at 2256. Fisher argues that (b) and (c)—(c) being the paragraph he was convicted under—cannot denote elements of separate crimes because they do not have different punishments. See id. But if (a) is an element, thеn first-degree burglary is not a distinct crime in and of itself, and the statutory structure suggests that (b) and (c) are separate crimes like (a).
Minnesota state court cases treat each paragraph as a distinct crime rather than as an alternative factual means of committing the same crimе. Defendants are specifically charged and convicted of (a), (b), or (c), see, e.g., State v. Spence, 768 N.W.2d 104, 107 (Minn. 2009); State v. Hodges, 384 N.W.2d 175, 178 n.1, 182-83 (Minn. Ct. App. 1986), the elements of which need to be proven beyond a reasonable doubt, see, e.g., State v. Kelley, No. A19-0997, 2020 WL 3635298, at *1 (Minn. Ct. App. July 6, 2020) (unpublished); State v. Nyansikera, No. A14-0993, 2015 WL 1401573, at *1-2 (Minn. Ct. App. March 30, 2015) (unpublished). The Minnesota Court of Appeals has also referred to each paragraph as a separate crime. State v. Mitchell, 881 N.W.2d 558, 562 (Minn. Ct. App. 2016) (referring to “the elements of first-degree burglary (dangerous weapon)” and “the elements of first-degree burglary (assault)“). Discussing (b) and (c), it explained that “[s]ince each crime requires proof of an element that the other does not, nеither crime necessarily is proved when the other is proved.” Id. (emphasis added).
Fisher‘s arguments do not persuade us that Minnesota courts treat the paragraphs as means. Fisher argues that Minnesota courts have treated similarly structured statutes as having alternative means. But those statutes are distinguishable because none of them has separate punishments for different paragraphs like first-degree burglary does. See
Fisher also argues that Mitchell stands for the prоposition that the paragraphs of first-degree burglary do not have different elements and therefore are not separate crimes. See Mitchell, 881 N.W.2d at 562-64. We disagree. Mitchell dealt with the interpretation of a sentencing statute, which generally bars courts from imposing separate sentences for two conviсtions that arose from the same conduct, and a specific exception to that statute for burglary. Id. at 563;
Finally, Fisher observes that the Minnesota Supreme Court has stated that “[a] person may commit first-degree burglary in several ways.” See State v. Holmes, 778 N.W.2d 336, 340 (Minn. 2010). But the court also noted that the defendant “was convicted of and sеntenced for violating Minn. Stat. § 609.582, subd. 1(c), first-degree burglary with assault.” Id. Thus, the court suggested that the statute‘s paragraphs defined separate crimes. Accord Spence, 768 N.W.2d at 106-07 (noting that the defendant was convicted of two counts of first-degree burglary under (a) and (c)); Hodges, 384 N.W.2d at 178 n.1, 182-83.
In addition to Minnesota state caselaw and the language and structure of the statute, Minnesota‘s model jury instructions and “the record of [the] prior conviction” also support our conclusion that the burglary statute is divisible. See Mathis, 136 S. Ct. at 2256. “We may use a state‘s model jury instructions to reinforce our interpretation of the means or elements inquiry.” United States v. McMillan, 863 F.3d 1053, 1057 (8th Cir. 2017) (internal quotаtion marks omitted). Minnesota‘s model jury instructions state that “[a]s a general rule, parentheses indicate options for factual variations, whereas brackets indicate optional element choices, depending on the portion of the statute that has been charged.” 10 Minn. Pract. Sеries, Crim. Jury Instr. Guide—Criminal Preliminary Materials. The model jury instructions for section 609.582, subdivision 1, have brackets around each paragraph. 10A Minn.
Based on the statute‘s language and structure, Minnesota state court decisions, Minnesota‘s model jury instructions, and the record of Fisher‘s prior conviction, we conclude that Minnesota‘s first-degree burglary statute is divisible.
Now, we apply the modified categorical approach to determine “which of the alternatives was the basis for the conviction.” McArthur, 850 F.3d at 937-38. The criminal complaint and judgment show that Fisher was charged and convicted under Minnesota Statutes section 609.582, subdivision 1(c), burglary with assault.
Fisher does not argue that if the burglary statute is divisible, his prior conviction nonetheless does not qualify as a “serious violent felony.” Thus, we conclude that Minnesota‘s first-degree burglary statute is divisible and that paragraph (c), burglary with assault, qualifies as a “serious violent felony,” and we affirm the distriсt court‘s application of the enhanced sentence. See United States v. Rice, 699 F.3d 1043, 1050 (8th Cir. 2012) (“Issues not raised in a party‘s opening brief are waived.“).
III.
Next, we address Fisher‘s challenge to the district court‘s denial of his request to adjust his sentence based on time served in tribal jail. The district court concluded that it did not havе the authority to credit Fisher for time served in tribal jail. We agree.
At sentencing, Fisher argued that
The district court did not clearly or obviously err in refusing to give Fisher credit for time served in tribal jail. Under
Finally, Fisher argues for the first time on appeal that the different treatment of discharged and undischarged sentences in
[w]ith undischarged sentences, there remains uncertainty as to the amount of time a defendant will actually serve. For example, a defendant could be paroled, placed on probation after serving some period of shock detention, given credit off a sentence for good behavior, or have the sentence vacated. There are no such contingencies in regard to a discharged sentence and it is rational to treat the two differently.
Id. Even though Otto involved a pre-§ 5K2.23 challenge to § 5G1.3(b)‘s exclusive application to undischarged sentences, not a challenge to
IV.
For the foregoing reasons, we affirm Fisher‘s sentence.