### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1504
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.
J ASON J. N EBINGER , Defendant-Appellant.

____________________ Appeal from the United States District Court for the Central District of Illinois. No. 16 CR 40024 — James E. Shadid , Judge

.

____________________
A RGUED M ARCH 31, 2020

— D ECIDED F EBRUARY 11, 2021

____________________

Before K ANNE , W OOD , and H AMILTON , Circuit Judges

. W OOD , Circuit Judge . After Jason Nebinger pleaded guilty to the charge of being a felon in possession of a fi rearm, in violation of 18 U.S.C. § 922(g)(1), the Probation O ffi ce determined that he quali fi ed as an armed career criminal, based on his prior convictions for Illinois residential burglary, drug possession with intent to deliver, and aggravated ba tt ery. See the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). This had dire consequences for Nebinger: it2 No. 19-1504

changed his sentencing exposure from a maximum sentence of 10 years to a minimum sentence of 15 years. Nebinger objected to the use of the residential-burglary conviction to support the enhancement, but he said nothing about the other two prior convictions. The district court agreed with Nebinger that his residential-burglary conviction was an improper ACCA predicate. The court imposed a sentence of 10 years’ imprisonment, along with three years of supervised release. The government appealed, and we vacated and remanded in light of our decision in Smith v. United States , 877 F.3d 720(7th Cir. 2017), in which we held that the Illinois residentialburglary statute corresponds to generic burglary for ACCA purposes. United States v. Nebinger, No. 17-3411 (7th Cir. Feb. 27, 2018). That decision meant that Nebinger did qualify as an armed career criminal. At resent encing, the district court increased his prison sentence to 15 years (180 months), the minimum under the ACCA, see § 924(e)(1). This time Nebinger has appealed. First, entirely apart from his ACCA point, he contends that his guilty plea should be vacated based on the Supreme Court’s decision in Rehaif v. United States , 139 S. Ct. 2191 (2019), which held that the government must prove that the defendant knew that he fell within one of the categories of people who are not entitled to possess guns. Second, he argues his residential-burglary and drug-o ff ense convictions under Illinois law cannot be used as ACCA predicates.

We are satis fi ed that Rehaifdoes not undermine the validity of Nebinger’s guilty plea, and so we a ffi rm his conviction. His sentence is another ma tt er. While this litigation has been pending, the Illinois Supreme Co urt has authoritatively ruled on the scope of the state o ff ense, and in so doing, has clari fi edNo. 19-1504 3

that it cannot be used for ACCA purposes. We therefore remand for resentencing.

I
In Rehaif , the Supreme Court held that in a prosecution for possession of a firearm by a rest ricted person, the government must prove that the defendant knew both that he possessed the firearm and that he was in one of the categories of restricted persons under 18 U.S.C. § 922(g). 139 S. Ct. at 2194.One of these categories covers a person who has “been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). In United States v. Maez , 960 F.3d 949 (7th Cir. 2020), we clarified that the knowledge element requires only that the defendant knew, at the time he possessed the firearm, that he was a felon(as pertinent here); he did not also need to know that his status prohibited him from possessing a firearm. Id. at 955. Nebinger pleaded guilty in 2016 to violating section 922(g)(1). This pre-dated Rehaif , and so neither the indictmentnor the government’s proffered factual basis for the conviction said anything about Nebinger’s knowledge of his statusas a felon. Nebinger now seeks to vacate his guilty plea as unknowing because he was not made aware of, nor given theopportunity to contest, that element. He did not try to withdraw his guilty plea in the district court, and so our review is only for plain error. United States v. Williams , 946 F.3d 968, 971 (7th Cir. 2020). On plain error review, we consider whether: (1) an error occurred; (2) the error was plain, i.e. , clear and obvious; (3) the error affected the defendant’s substantial rights, i.e. , there is a “reasonable probability that, but for the error, the outcome of4 No. 19-1504

the proceeding would have been different”; and (4) the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Molina-Martinez v. United States , 136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted).

Our recent decisions in Williams and United States v. Dowthard, 948 F.3d 814 (7th Cir. 20 20), settle this matter. They show that, while Nebinger can clear the first two hurdles, he stumbles on the third. With the benefit of Rehaif, we know that “the district court’s failure to inquire into [a defendant’s] knowledge of his status or to confirm a factual basis for that element of the offense” was bothan error and an obvious one. Williams , 946 F.3d at 971; see also Dowthard, 948 F.3d at 818. But where is the prejudice? In Williams , we said that a defendant seeking to withdraw a guilty plea because of Rehaif bears the burden of persuading the co urt that there is “a reasonable probability that he would not have pleaded guilty if he knew of Rehaif .” 946 F.3d at 973. Nebinger cannot meet that burden. He had six prior felony convictions for an array of crimes: simple burglary, theft, reside ntial burglary, drug possession with intent to deliver, aggravat ed fleeing and eluding the police, and aggravated battery of a police officer. The residential burglary, drug trafficking, a ggravated fleeing and eluding, and aggravated battery convictions each came with prisonsentences of four or five years, and Nebinger served significant time on each one of th em. He admitted these prior convictions at his plea colloquy. He could not have stood before the judge and said, with a strai ght face, that he was unaware of his status as a person with a prior felony conviction.

As we did in Williams and Dowthard, we conclude here that Nebinger was not prejudiced by the Rehaif error. There is no reasonable probability that he would have gone to trial if heNo. 19-1504 5

had known that the government would need to prove his knowledge of his status. The district court thus did not plainly err by accepting his guilty ple a, and his conviction stands. 1
II Next, we turn to the validity of Nebinger’s sentence. Nebinger argues that the district court improperly relied on two of his prior convictions as ACCA predicates, when it abandoned the regular maximum of ten years and used the ACCA minimum of 15 years. The ACCA is triggered in a prosecution under section 922(g) if the defendant has thr ee previous convictions for either a violent felony or a seri ous drug offense, he committed those offenses on separate occasions, and each violent felonyoffense carries a potential sentence of imprisonment exceeding one year. If those criteria are satisfied, the defendant is subject to a mandatory minimum sentence of fifteen years in prison. 18 U.S.C. § 924(e). Burgl ary is one of the enumerated violent felonies. Id. § 924(e)(2)(B)(ii). The statute also defines

1 We recognize that the Fourth Circuit has taken the position that Rehaif problems qualify as structural error, and thus that they automatically amount to plain error and entitl e the defendant to relief. See United States v. Gary, 954 F.3d 194, 205–07 (4th Cir. 2020), cert. granted, No. 20-444, 2021 WL 77245 (mem.), (U.S. Jan. 8, 2021). The Court has also agreed to hear Greer v. United States , No. 19-8709, 2021 WL 77241 (mem.), (U.S. Jan. 8, 2021). Greer was a decision of the Eleventh Circuit, 798 F. App’x 483 (11th Cir. 2020), which rejected the defendant’s contention that a Rehaif error was plain error that affected his substantial rights. In light of the grant of certiorari in Gary and Greer, we have considered whether to hold the present case pending the Supreme Court’s decision in those cases. We believe, however, that the best approach for Nebinger is to send this case along its way and allow him to seek relief in the Supreme Court, should the Justices disagree with the approach we have taken.6 No. 19-1504

serious drug offenses, id. § 924(e)(2)(A), but that part plays only a minor role in Nebinger’s case, and so the details do not
matter.
A Nebinger contends that his 2000 conviction for Illinois residential burglary cannot be used as an ACCA predicate because the state crime is broader than the corresponding federal crime and thus as a categorical ma tt er does not qualify. See Taylor v. United States , 495 U.S. 575 (1990). He reasons as follows: fi rst, the state crime does not require that the place that is burglarized be a “building” or “structure” as those terms are used by the Supreme Court; and second, the state crime does not make breaking and entering, or its equivalent, an element of the o ff ense. For a time, we rejected this position,

see Smith, 877 F.3d at 724–25, and Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016), but upon further thought, we decided to ask the Illinois Supreme Court what falls within the scope of the state statute. See United States v. Glispie, 943 F.3d 358 (7th Cir. 2019). The government contends that it is too late for Nebinger to take advantage of anything the state court said. It argues that he is precluded by the la w-of-the-case doctrine and the mandate rule from challenging the applicability of Dawkins to his case, because he did not raise this precise challenge in the fi rst appeal. The government says that we may consider only the district court’s application of Smith and United States v. Sti tt, 139 S. Ct. 399 (2018), in wh ich the Court addressed the type of structure that the bu rglary must target. But the government is forge tt ing a key point: it was the appellant in the fi rst appeal, which occurred be cause the district court initially had agreed with Nebinger. Moreover, Nebinger didNo. 19-1504 7

not neglect any argument in the district court. In his initial sentencing memorandum, he cha llenged the use of his Illinois residential-burglary conviction as an ACCA predicate on both grounds raised here. The validity of the fi rst argument was an open question at the time, an d the second argument directly confronted Dawkins . The district court decided in Nebinger’s favor that Illinois burglary is broader than generic burglary with respect to the nature of the site burglarized, and thus it had no occasion to reach the Dawkins breaking-and-entering question. The government then appeal ed and requested a summary remand in light of Smith , which had recently been issued. Given the government’s focus on Smith , there was no reason for Nebinger to raise the Dawkins issue on his own in his opposition to the government’s mo tion in this court. He did, however, reiterate the Dawkins argument in his resentencing memorandum and at the resenten cing hearing, to preserve the issue for appeal. The distri ct court, considering itself bound by Smith and Dawkins , resentenced Nebinger to the ACCA-enhanced statutory minimum of 15 years. Nothing in this history supports a fi nding that Nebinger waived his arguments under Dawkins and related cases. We therefore proceed to the merits. 1. Categorical Approach Under the categorical approach of Taylor, supra , clari fi ed in Descamps v. United States , 570 U.S. 254 (2013) and Mathis v. United States , 136 S. Ct. 2243 (2016), in order to qualify as a prior violent felony for purposes of the ACCA enhancement, the state crime must be de fi ned in the same way or more narrowly than the corresponding fe deral crime. We focus on the8 No. 19-1504

elements of the crime, which the prosecution must prove at trial, rather than the means. Mathis , 136 S. Ct. at 2248–49. Nebinger’s 2000 Illinois conviction for residential burglary rested on 720 ILCS 5/19-3. At the time, the statute provided: “A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.” 720 ILCS 5/19-3(a). A “dwelling” was de fi ned as follows: (a) Except as otherwise provided in subsection (b) of this Section, “dwelling” means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence. (b) For the purposes of Section 19-3 of this Code, “dwelling” means a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged o ff ense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside. 720 ILCS 5/2-6.“Burglary” is an enumerated qualifying violent felony under the ACCA for sentencing-enhancement purposes, 18U.S.C. § 924(e)(2)(B)(ii). In order to decide whether a state offense falls within the terms of the federal statute, the court must determine whether that state o ff ense corresponds to the generic de fi nition of burglary that is “used in the criminal codes of most States.” Taylor, 495 U.S. at 598. The Court acknowledged that “the exact formulations vary,” but that “the generic, contemporary meaning of burglary contains atNo. 19-1504 9

least the following elements: anunlawful or unprivileged entry into, or remaining in, a build ing or other structure, with intent to commit a crime.” Id. 2. Dwelling Requirement

In Smith , we held that Illinois’s de fi nition of a “dwelling”for purposes of residential burglary corresponds with the Supreme Court’s formulation of “a building or occupied structure.” 877 F.3d at 724. Later, the Supreme Court decided Sti tt, in which it reiterated the standard for generic burglary from Taylorand said that “burglary of a structure or vehicle that hasbeen adapted or is customarily used for overnight accommodation” quali fi es as generic burglary for ACCA purposes. 139 S. Ct. at 403–04. Nebinger argues that Smith runs afoul of Sti ttand should be overruled. He says that “the Illinois residential burglary statute extends to places where one actually resides or intendsto reside, and not just places adapted for overnight accommodation,” and thus “is overbroad and inclusive of places and enclosures beyond those covere d in generic burglary” under the Sti ttstandard. We do not read Illinois’s law that way. The applicable de fi nition of a “dwelling,” 720 ILCS 5/2- 6(b), does not, as Nebinger urges, include anywhere “owners or occupants actually reside or in their absence intend within a reasonable period of time to reside,” regardless of the nature of the place. Instead, it incl udes only a “house, apartment, mobile home, trailer, or other li ving quarters[.]” In context, the term “other living quarters” is not as open-ended as Nebinger portrays it. Rather, consistently with Sti tt, it includes a “structure or vehicle that has been adapted or is customarily used for overnight accommodation.” This stands in10 No. 19-1504

contrast with the de fi nition of “dwelling” for all purposes besides residential burglary, which is broader: “a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation,home or residence.” 720 ILCS 5/2-6(a). Given the distinct statutory de fi nitions of “dwelling,” it is unreasonable to interpret the term for residential burglary purposes as expansively as Nebinger suggests. Ultimately, Nebinger provides no compelling reason to overrule Smith . His challenge to the use of his residential burglary conviction as an ACCA predicate based on the de fi nition of the term “building” therefore fails. 3. Breaking-and-Entering Requirement Nebinger’s challenge to Dawkins is a separate ma tt er. Dawkins held that the Illinois statute’s requirement of an unlawful entry is the “practical equivalent” of the “breaking and entering” requirement of the generic burglary o ff ense for ACCA purposes. 720 ILCS 5/19-3(a) ; 809 F.3d at 956 (7th Cir. 2016). But in Dawkins , we failed to consider the question “whether the limited-authority doctrine applies to the Illinois residential burglary statute.” Glispie, 943 F.3d at 359. Under that doctrine, authority to ente r a building open to the public extends only to the purpose for which the building is open; if someone enters with the intent of commi tt ing burglary, the entry will be considered unlawful. Id. at 365. Recognizing the importance of the limited-authority issue, we certi fi ed to the Illinois Supreme Court the question whether the limited-authority do ctrine applies to residential burglary as well as business burglary. United States v. Glispie ,No. 19-1504 11

943 F.3d 358, 372 (7th Cir. 2019). The state supreme court answered it in the a ffi rmative. United States v. Glispie , No. 125483, 2020 WL 5668984 *1 (Ill. Se pt. 24, 2020). With that guidance, we held “that a conviction for residential burglary by entry under the Illinois stat ute does not qualify as genericburglary as the Supreme Court of the United States has defi ned that term[] [and] ... cannot be used to enhance [a] sentence under the ACCA.” United States v. Glispie , No. 19-1224, 2020 WL 6055356 at *1 (7th Cir. Oc t. 14, 2020). This is so because Illinois does not always require an unlawful or unauthorized entry. Nebinger’s appeal raises the same question as Glispie’s did—whether his Illinois residential-burglary conviction can serve as an ACCA predicate. Our answer, consistently with the state supreme court’s decision , is that it cannot. Because of the limited-authority doctrine, the state statute reaches more conduct than the federal de fi nition of generic burglary encompasses, and under Taylor ’s categorical approach, that is the end of the ma tt er.
B Nebinger also challenges the use of his prior Illinois drug conviction as an ACCA predicate on the basis that it is broader than the corresponding federal law. He argues that the Illinois statute criminalizes both a broader category ofcontrolled substance analogues and a broader category of cocaine isomers. Nebinger did not object to the use of his prior state drug conviction as an ACCA predicate in the district court, even while he challenged the use of his prior residential burglary conviction. Nor did he raise this claim in the fi rst appeal as an12 No. 19-1504

alternative basis for a ffi rming the district court’s determination that the ACCA enhancemen t does not apply. The government therefore argues that he waived this point. His earlierremand was exclusively for reconsideration of the residentialburglary issue. See United States v. Whitlow , 740 F.3d 433, 438 (7th Cir. 2014) (“[A]n issue thatcould have been raised on appeal but was not is waived and, therefore, not remanded.”); United States v. Parker , 101 F.3d 527, 528 (7th Cir. 1996) (“A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the fi rst appeal because the remand did not a ff ect it.”). Nebinger tries to avoid waiver by pointing to intervening authorities, including United States v. Elder , 900 F.3d 491 (7th Cir. 2018); United States v. De La Torre, 940 F.3d 938 (7th Cir. 2019); and Lorenzo v. Whitaker, 752 F. App’x 482 (9th Cir. 2019). But those cases did not make any new argument available to Nebinger. To the contrary, these points are well-trodden. In Elder, we held that the categorical approach from Taylor, Descamps , and Mathis applies to our analysis of ACCApredicate drug o ff enses under 21 U.S. C. §§ 841 and 802(44). Nebinger could have made the same argument Elder did— that his state drug convictiondid not qualify as an ACCA predicate under the categorical approach—in the district court or in the fi rst appeal in 2017. Nothing in either Supreme Court or Seventh Circuit precedent foreclosed it or even made it a long shot. Nebinger also relies on United States v. Ruth , 966 F.3d 642 (7th Cir. 2020) to support his challenge. In Ruth , we found that “the Illinois [cocaine] statute is categorically broader than the federal de fi nition.” 966 F.3d at 647. Ruth made the same argument that Elder made and thatNebinger could have made.No. 19-1504 13

See id. at 644 (“Ruth now appeals and claims that the district court erred in sentencing him because, using the categorical approach, the overbreadth of the Illinois statute disquali fi es his prior conviction as a predicate felony drug o ff ense.”). At a minimum, Nebinger has forfeited this argument; it may even be that he waived it. He has not o ff ered any compelling reason for us to overlook that forfeiture. We thus choose not to reach this point.

III
We A FFIRM the judgment of conviction, and we V ACATE Nebinger’s sentence and R EMAND to the district court for resentencing.