Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Franklin

United States Court of Appeals, Seventh Circuit

February 26, 2018

United States of America, Plaintiff-Appellee,
v.
Dennis Franklin & Shane Sahm, Defendants-Appellants.

          Argued April 25, 2017

         Appeals from the United States District Court for the Western District of Wisconsin. Nos. 3:14-CR-00128 & 3:15-CR-00110 - James D. Peterson, Chief Judge.

          Before Posner, [*] Kanne, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         These consolidated appeals represent another application of the "categorical approach" for applying recidivist statutes. The specific question in these appeals is whether convictions under a portion of the Wisconsin burglary statute, Wis.Stat. § 943.10(1m)(a), qualify as convictions for violent felonies under the federal Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). The outcome of these appeals depends on whether the Wisconsin statute is "divisible" or not, which depends in turn on the sometimes slippery distinction between a crime's "elements" and "means." In short, if the burglary statute is divisible, then we must affirm; if it is not divisible, we must reverse. We find that the statute is divisible, so we affirm.

         I. Factual and Procedural Background

         Both defendants in these consolidated appeals, Dennis Franklin and Shane Sahm, pleaded guilty to possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). The district court found that both men had three prior burglary convictions that were violent felonies under the ACCA. The court therefore sentenced them both to the mandatory minimum of fifteen years in prison. See § 924(e)(1). On appeal, Franklin and Sahm contend that their prior convictions for burglary in Wisconsin are not violent felonies under the ACCA so their sentences could be no more than ten years in prison.

         Franklin was convicted of being a felon in possession of a firearm. On Thanksgiving Day in 2014, Madison police responded to a report of a residential burglary in progress and arrested Franklin at the scene. When searching the area, police found a gun that Franklin had hidden nearby. Franklin pleaded guilty to possessing a gun unlawfully. See 18 U.S.C. § 922(g)(1).

         A probation officer recommended in the presentence report that Franklin be sentenced as an armed career criminal. See 18 U.S.C. § 924(e). The report explained that he had at least three convictions for violent felonies under the statute: armed burglary in 1994, two burglaries and an attempted burglary in 2001, and burglary in 2003, all in Wisconsin. Franklin argued that he should not be sentenced as an armed career criminal because Wisconsin's burglary statute is broader than the generic crime of burglary under the ACCA. The district court ruled that Franklin was an armed career criminal and imposed the mandatory minimum 180-month sentence.

         Sahm's story is similar. He stole three guns and sold them. Sahm too was a convicted felon, and he was also charged with and pleaded guilty to possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). Sahm had three relevant prior convictions: burglary in 1997, and two burglaries in 2008, all in Wisconsin for burglarizing "a building or dwelling." See Wis.Stat. § 943.10(1m)(a). Sahm argued that his burglary convictions were not for "generic burglary" and thus should not count as violent felonies under the ACCA. The district court disagreed and imposed the mandatory minimum 180-month sentence.

         II. Analysis

         The framework for our analysis is familiar because of the volume of similar cases. Under the ACCA, a conviction for "burglary" counts as a violent felony. 18 U.S.C. § 924(e)(2)(B)(ii). In Taylor v. United States, 495 U.S. 575, 598 (1990), the Supreme Court held that the federal statute requires a conviction for "generic burglary, " which is defined, regardless of labels under state law, as "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." In evaluating a conviction under the ACCA definition, Ta y l o r further explained, a sentencing court must use the "categorical approach, " which focuses on the elements of the statutory offense, not the particular facts of the defendant's crime. Id. at 601-02. Thus, if a state burglary statute is broader than "generic burglary" by applying, for example, to unlawful entries into vehicles as well as buildings or structures, then a conviction does not count under the ACCA definition even if the defendant in fact committed the prior offense by unlawfully entering a building. E.g., Mathis v. United States, 136 S.Ct. 2243, 2250 (2016); see also Descamps v. United States, 570 U.S. 254, 261 (2013) (conviction under California burglary statute that did not require unlawful entry did not count as violent felony under ACCA).

         So we look to the Wisconsin burglary statute. It provides as follows:

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.