Submitted on Briefs: oral argument: February 11, 2 019
CERTIFICATION of a question of law from the United States
Court of Appeals for the Seventh Circuit.
the defendants-appellants, there were briefs filed by Shelley
M. Fite and Federal Defender Services of Wisconsin, Madison.
There was an oral argument by Shelly M. Fite.
the plaintiff-appellee, there was a brief filed by Laura A.
Przyblinski Finn, Scott C. Blader, and United States
Attorney's Office, Madison. There was an oral argument by
Laura A. Przyblinski.
amicus curiae brief was filed on behalf of State of Wisconsin
by Amy C. Miller, assistant solicitor general, with whom on
the brief were Ryan J. Walsh, chief deputy solicitor general,
and Brad D. Schimel, attorney general. There was an oral
argument by Amy C. Miller.
REBECCA FRANK DALLET, J.
This case is before the court on a certified question from
the United States Court of Appeals for the Seventh Circuit.
United States v. Franklin, 895 F.3d 954 (7th Cir.
2018); see Wis.Stat. § 821.01
(2017-18).The question certified for
Whether the different location subsections of the Wisconsin
burglary statute, Wis.Stat. § 943.10(lm)(a) -(f),
identify alternative elements of burglary, one of which a
jury must unanimously find beyond a reasonable doubt to
convict, or whether they identify alternative means of
committing burglary, for which a unanimous finding beyond a
reasonable doubt is not necessary to convict?
Our answer to this certified question will aid the Seventh
Circuit in determining the appropriate sentences for Dennis
Franklin and Shane Sahm (together, the defendants), who had
their sentences enhanced pursuant to the federal Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e) (1).
The defendants pleaded guilty to violations of 18 U.S.C.
§ 922(g) (1) for possessing firearms after having been
previously convicted of a felony. Based upon their previous
Wisconsin burglary convictions, the defendants were
classified as armed career criminals and sentenced to a
mandatory minimum of 15 years in prison pursuant to the ACCA.
The defendants objected to their status as armed career
criminals on appeal to the Seventh Circuit, where their cases
were consolidated. A three-judge panel of the Seventh Circuit
held that the defendants' prior burglary convictions were
predicate violent felonies under the ACCA because each of the
locations set forth in Wis.Stat. § 943.10(lm)(a)-(e)
identify alternative elements for the crime of burglary
making them each distinct crimes. The defendants filed a
petition for rehearing en banc. They asserted that because
the locational alternatives in § 943.10(lm)(a)-(f)
provide alternative means of committing one element of the
crime of burglary, the Wisconsin burglary statute is too
broad to fall within the definition of burglary as a
predicate violent felony under the ACCA. The Seventh Circuit
granted the petition for rehearing, vacated its prior
opinion, and certified the question of Wisconsin state law to
To answer the certified question, we examine the four factors
set forth in Derango: (1) the statutory text; (2)
the legislative history and context of the statute; (3) the
nature of the conduct; and (4) the appropriateness of
multiple punishments. State v. Derango, 2000 WI 89,
¶¶14-15, 236 Wis.2d 721, 613 N.W.2d 833');">613 N.W.2d 833. We
conclude that Wis.Stat. § 943.10(lm) (a)-(f) identifies
alternative means of committing one element of the crime of
burglary under § 943.10(lm). Accordingly, a unanimous
finding of guilt beyond a reasonable doubt as to a locational
alternative in subsections (a)-(f) is not necessary to
Under 18 U.S.C. § 922(g)(1), it is unlawful for a person
who has been convicted of a felony to possess a firearm. The
sentence for unlawful possession of a firearm under §
922(g) is a maximum of ten years in prison. See 18
U.S.C. § 924 (a) (2) . The penalty increases, however,
to a 15-year mandatory minimum under the ACCA for certain
federal defendants who have three prior convictions for a
"violent felony," including "burglary, arson,
or extortion." 18 U.S.C. § 924(e). Section 924(e)
does not define burglary. Consequently, for purposes of the
ACCA, the United States Supreme Court in Taylor v. United
States, 495 U.S. 575 (1990), adopted the following
"generic" definition of burglary: "an unlawful
or unprivileged entry into, or remaining in, a building or
other structure, with intent to commit a crime."
Id. at 598. To determine whether a defendant's
past offense counts as an ACCA predicate, courts compare the
elements of the crime of conviction with the elements of the
"generic" definition of the crime, employing the
"categorical approach." Mathis v. United
States, 136 S.Ct. 2243, 2247-48 (2016) . The prior
offense qualifies as an ACCA predicate if its elements are
the same as, or narrower than, those of the generic offense.
Id. at 2247. However, if the crime of conviction
covers more conduct than the generic offense, then it does
not qualify as an ACCA predicate, even if the defendant's
actual conduct indisputably fits within the generic
offense's boundaries. Id. at 2248.
The categorical approach can be difficult to apply if a
statute is phrased alternatively, like Wisconsin's
burglary statute, Wis.Stat. § 943.10(lm). As the United
States Supreme Court has explained, alternatively phrased
statutes come in two types: (1) those that list alternative
elements (defining more than one crime within a single
statute); and (2) those that list alternative factual means
of committing a single element of a crime. See
Mathis, 136 S.Ct. at 2249. "'Elements' are
the 'constituent parts' of a crime's legal
definition-the things the 'prosecution must prove to
sustain a conviction.'" Id. at 2248 (quoted
source omitted). In contrast, means "spell out various
factual ways of committing some component of the
offense," that a jury need not unanimously find.
Id. at 2249. The appropriate sentences for the
defendants turn on whether the locational alternatives set
forth in subsections (a)-(f) of § 943.10(lm) are
alternative means of committing one element of burglary or
are alternative elements of burglary.
When faced with the question of whether the legislature
"create[d] multiple offenses or a single offense with
multiple modes of commission," this court has analyzed
the following four factors: (1) the language of the statute;
(2) the legislative history and context of the statute; (3)
the nature of the proscribed conduct; and (4) the
appropriateness of multiple punishments for the conduct.
Derango, 236 Wis.2d 721, ¶¶14-15; see
also State v. Hammer, 216 Wis.2d 214, 220, 576 N.W.2d
285 (Ct. App. 1997); Manson v. State, 101 Wis.2d
413, 422, 304 N.W.2d 729');">304 N.W.2d 729 (1981). The objective of this
inquiry is to determine whether the legislature
"intend[ed] to create multiple, separate offenses, or a
single offense capable of being committed in several
different ways." Derango, 236 Wis.2d 721,
¶15; see also Manson, 101 Wis.2d at 422.
In Derango, this court was faced with the question
of whether Wis.Stat. § 948.07 "creates multiple
offenses or a single offense with multiple modes of
commission." Derango, 236 Wis.2d 721, ¶14.
Section 948.07 read:
Whoever, with intent to commit any of the following acts,
causes or attempts to cause any child who has not attained
the age of 18 years to go into any vehicle, building, room or
secluded place is guilty of a Class BC felony:
(1) Having sexual contact or sexual intercourse with the
child in violation of s. 948.02 or 948.095.
(2) Causing the child to engage in prostitution.
(3) Exposing a sex organ to the child or causing the child to
expose a sex organ in violation of s. 948.10.
(4) Taking a picture or making an audio recording of the
child engaging in sexually explicit conduct.
(5) Causing bodily or mental harm to the child.
(6) Giving or selling to the child a controlled substance or
controlled substance analog in violation of ch. 961.
Id., ¶16. The Derango court examined
the four factors and determined that the statute created one
offense of causing a child to go into a secluded place
"with any of six possible prohibited
intents." Jury unanimity as to intent was therefore not
required. Id., ¶17.
The defendants argue that application of the four
Derango factors leads to the conclusion that the
legislature intended to create a single offense of burglary
with multiple means of commission. The federal government
asserts that the Derango factors support its
position that subsections (a)-(f) identify alternative
locational elements requiring jury unanimity yet also
maintains that the holding in Derango should be
limited to the child enticement statute at issue in that
case. We analyze the Derango factors and conclude
that Wis.Stat. § 943.10(1m) (a)-(f) sets forth
alternative means of committing one element of burglary.
We begin with an examination of the plain language of the
statute. Wis.Stat. § 943.10(1m)(a)-(f) provides:
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 ...