### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 1513

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

C HARLES H ANEY

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Central District of Illinois

No. 15

‐ 30041

— Sue E. Myerscough

, Judge

.

____________________

A RGUED O CTOBER 5, 2016

— D ECIDED O CTOBER 27, 2016

____________________

Before B AUER

, F LAUM

, and K ANNE

, Circuit Judges

.

P ER C URIAM

. Charles Haney pled guilty to possessing a

gun as a felon. See 18 U.S.C. § 922(g)(1). The district court

found that Haney had at least three prior convictions that

qualified as “violent felonies” under the Armed Career

Criminal Act and sentenced him to the mandatory minimum

of fifteen years’ imprisonment. See id. § 924(e)(1). On appeal

Haney argues that, in light of recent decisions by this court2 No. 16

‐ 1513

and the Supreme Court, his prior convictions for burglary in

Illinois are not appropriate predicates under the ACCA.

We agree, vacate the district court’s judgment, and remand

for resentencing.

Police in Illinois discovered a gun in Haney’s van during

a routine traffic stop. Haney was a convicted felon at the

time, so he was charged with and pled guilty to a violation

of 18 U.S.C. § 922(g)(1).

A probation officer prepared a presentence investigation

report and recommended that Haney be sentenced as an

armed career criminal. To qualify for that status, a defendant

must have prior convictions for violent felonies committed

on three different occasions. See 18 U.S.C. § 924(e)(1). The

statute defines a violent felony as any crime punishable by

more than a year in prison that “(i) has as an element the

use, attempted use, or threatened use of physical force

against the person of another; or (ii) is burglary, arson, or

extortion, [or] involves use of explosives.” Id. § 924(e)(2)(B).

The presentence report identified three predicate convic

‐

tions: (1) burglary of an Illinois store in 1975 in violation of

38 ILCS § 19–1 (1973) 1 ; (2) armed bank robbery in the North

‐

ern District of Illinois in 1977; and (3) aggravated assault in

Pennsylvania in 1990. The report also listed that Haney had

an additional conviction for burglary in Illinois in 1972 and

two additional convictions for aggravated assault in Penn

‐ sylvania in 1990. But the report did not cite those additional

convictions as potential predicates.

Haney argued that his convictions for burglary could not

serve as predicates under the ACCA, citing three Supreme

1 Now 720 ILCS 5/19–1 (2013).No. 16

‐ 1513 3

Court cases: Taylor v. United States

, 495 U.S. 575 (1990),

Descamps v. United States

, 133 S. Ct. 2276 (2013), and Johnson

v. United States

, 135 S. Ct. 2551 (2015). In Taylor

, the Court

explained that “burglary” in § 924(e)(2)(B)(ii) refers to bur

‐ glary in the “generic sense,” which “contains at least the fol

‐ lowing elements: an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to

commit a crime.” 495 U.S. at 598. In Descamps

, the Court con

‐

cluded that a California burglary statute could not serve as a

predicate offense under the ACCA because the statute was

broader than generic burglary in that it did not require an

unlawful breaking and entering, as most burglary laws do.

133 S. Ct. at 2285–86. And in Johnson

, the Court declared un

‐ constitutionally vague the ACCA’s “residual clause,” i.e., a

part of § 924(e)(2)(B)(ii) that defined violent felonies as of

‐

fenses involving “conduct that presents a serious potential

risk of physical injury to another.” 135 S. Ct. at 2563. In light

of these precedents, Haney argued that his convictions for

burglary are not violent felonies because (1) the relevant

statute does not have as an element a use or threat of physi

‐

cal force, as required under § 924(e)(2)(B)(i); (2) the statute

does not have as an element an unlawful breaking and enter

‐ ing as required to constitute “burglary” under

§ 924(e)(2)(B)(ii); and (3) after Johnson

, a conviction is not a

violent crime merely because it presents a “serious potential

risk of physical injury to another,” § 924(e)(2)(B)(ii). Haney

did not challenge the report’s conclusion that his convictions

for armed bank robbery and aggravated assault were violent

felonies.

The district court overruled Haney’s objection to his des

‐ ignation as an armed career criminal, noting that we already

had decided that a district court need not rely on the4 No. 16

‐ 1513

ACCA’s problematic residual clause to count residential

burglary in Illinois as a violent felony, see Dawkins v. United

States

, 809 F.3d 953, 954–56 (7th Cir. 2016) (per curiam)

(denying application to file successive petition under

28 U.S.C. § 2255). The dissent in Dawkins

, however, ex

‐ pressed concern that Johnson and Descamps may have un

‐

dermined our decisions interpreting Taylor. 809 F.3d at 956–

58 (Ripple, J., dissenting). Although the district court agreed

with the dissent—opining that “under Descamps

, a convic

‐

tion for burglary in Illinois should not qualify as a violent

felony for purposes of the ACCA”—the court concluded that

it was bound by the majority’s decision in Dawkins. The

court therefore sentenced Haney as an armed career criminal

and imposed the mandatory minimum sentence of fifteen

years’ imprisonment.

On appeal, the parties now agree that, given recent de

‐ velopments in the law, Haney’s burglary convictions cannot

count as predicate convictions under the ACCA. They come

to this conclusion, however, for reasons different than those

argued below. Now, the parties focus on the 1973 burglary

statute’s “locational element[s].” Mathis v. United States

, 136

S. Ct. 2243, 2250 (2016). In Mathis the Supreme Court de

‐

clared that burglary in Iowa does not qualify as a predicate

violent felony offense under the ACCA because it is broader

than the “generic” offense of burglary listed in

§ 924(e)(2)(B)(ii)—generic burglary requires unlawful entry

into a building or other structure, whereas the Iowa burglary

statute also includes entries into vehicles. 136 S. Ct. at 2250–

51, 2257 (2016). And in United States v. Edwards this court,

applying Mathis

, concluded that Wisconsin’s burglary stat

‐

ute also does not constitute a crime of violence under the

Sentencing Guidelines for similar reasons. Nos. 15

‐ 2552, 15

‐No. 16

‐ 1513 5

2373 & 15

‐ 2374, 2016 WL 4698952, at *4–6 (7th Cir. Sept. 8,

2016) (finding Wisconsin’s burglary statute—proscribing

burglary of locations such as “building[s] or dwelling[s]

... enclosed railroad car[s]

... [and] enclosed portion[s] of any

ship or vessel”—“cover[s] a greater swath of conduct” than

the elements of the Guidelines offense (citing Mathis

, 136

S. Ct. at 2251)). The Illinois burglary statute at the time of

Haney’s 1975 conviction, the parties agree, similarly includ

‐

ed locations other than a “building or other structure,” fall

‐ ing outside the “generic” offense as defined by Taylor

.

We agree with the parties that Haney’s Illinois burglary

convictions are not violent felonies under the ACCA. When

Haney was twice convicted of burglary in the early 1970s,

the relevant statute applied not only to buildings but also to

vehicles, such as “housetrailer[s], watercraft, aircraft, motor

vehicle[s]

... [and] railroad car[s].” 38 ILCS § 19–1 (1971); id

§ 19–1 (1973); id. § 19–1 (1975); see also United States v. Hope

,

906 F.2d 254, 262 n.5 (7th Cir. 1990) (citing 38 ILCS § 19–1

(1975)). So, like the Iowa statute at issue in Mathis

, Haney’s

statute of conviction is broader than generic burglary.

See Mathis

, 136 S. Ct. at 2250–51. And the locations described

in the older versions of the statute appear to represent “mul

‐ tiple means of fulfilling its locational element”—unlike the

contemporary burglary statute, 720 ILCS 5/19–1, which im

‐

poses different penalties depending on the location in which

the burglary occurs, constituting separate elements that

could render the statute divisible and subject to the modi

‐

fied

‐ categorical approach. See Mathis

, 136 S. Ct. at 2250.

Thus, neither of Haney’s burglary convictions are appropri

‐6 No. 16

‐ 1513

ate predicates under the ACCA. 2 See Edwards

, 2016 WL

4698952, at *6; see also United States v. Thorne

, No. 15

‐ 1249,

2016 WL 4896375, at *1 (8th Cir. Sept. 15, 2016) (vacating sen

‐

tence in light of Mathis where defendant was convicted un

‐

der Florida burglary statute); United States v. White

, No. 15

‐

4096, 2016 WL 4717943, at *6–8 (4th Cir. Sept. 9, 2016) (same

with West Virginia statute).

The government maintains, however, that Haney is an

armed career criminal because of his prior aggravated

‐

assault convictions. Haney was thrice convicted under a

Pennsylvania statute that provides that a defendant commits

aggravated assault if he “attempts to cause serious bodily

injury to another, or causes such injury intentionally, know

‐ ingly or recklessly under circumstances manifesting extreme

indifference to the value of human life.” 18 P A

. C ONS

. S TAT

. § 2702(a)(1) (1990). Haney argues that the convictions do not

satisfy § 924(e)(2)(B)(i) because the statute does not require

an intentional use or threat of force.

We need not decide whether aggravated assault from

Pennsylvania is a violent felony because a remand for resen

‐ tencing is required either way. Even assuming that Haney’s

convictions for aggravated assault are violent felonies,

Haney would still be one predicate short of being an armed

2 We do not address recent case law’s effect on Dawkins

. Dawkins con

‐

cluded Illinois’s Residential Burglary statute, under 720 ILCS 5/19–3,

comported with Taylor ’s “generic offense” definition requirement. 809

F.3d at 954–56. Here, our ruling is limited to Illinois’s Burglary statutes as

they existed in the 1970s, 38 ILCS § 19–1 (1971) and 38 ILCS § 19–1 (1973).

The current Residential Burglary statute does not include in its definition

locations that fall outside of Taylor ’s scope. The former Burglary statutes

did, disqualifying them as ACCA predicate offenses post

‐ Mathis

.No. 16

‐ 1513 7

career criminal if, as Haney argues, all three of his assaults

occurred on the same “occasion.” See 18 U.S.C. § 924(e)(1).

And that issue was never addressed at sentencing.

The government bears the burden of proving by a pre

‐ ponderance of the evidence that the three convictions were

“committed on occasions different from one another.”

See Kirkland v. United States

, 687 F.3d 878, 895 (7th Cir. 2012)

(quoting 18 U.S.C § 924(e)(1)). “[C]rimes that occur simulta

‐ neously will be deemed to have occurred on a single occa

‐

sion,” see United States v. Elliott

, 703 F.3d 378, 383 (7th Cir.

2012), and “the evidentiary restrictions set forth in Shepard v.

United States apply to the ‘different occasion’ inquiry.” Kirk

‐

land, 687 F.3d at 883 (citing Shepard v. United States

, 544 U.S.

13 (2005)). During sentencing the parties focused their atten

‐

tion on the burglary convictions, so the government did not

argue—much less submit Shepard

‐ approved documents to

establish—that Haney committed his three aggravated as

‐

saults on different occasions. We granted Haney permission

to supplement the record on appeal with the informations

and verdict forms for the three aggravated

‐ assault cases. But

all these documents reveal about the offenses is that Haney

committed the crimes of aggravated assault and recklessly

endangering another person against three different individ

‐

uals in Armstrong County, Pennsylvania on or about April

29, 1988. The documents say nothing at all about how the

crimes were committed.

Haney did not object to the presentence report’s descrip

‐

tion of his aggravated assaults, so we may consider the

presentence report in determining whether Haney’s three

assaults occurred on different occasions. See United States v.

Aviles

‐ Solarzano

, 623 F.3d 470, 474–75 (7th Cir. 2010). But that8 No. 16

‐ 1513

document does not illuminate much either—for each convic

‐

tion the report merely repeats that on April 29, 1988, Haney

shot a different victim “in the abdomen [and in one case also

the left wrist] with a .357 caliber revolver while in Don and

Jacks Lounge, Ford City, Pennsylvania.”

Given this scant record, the government has fallen far

short of its burden of proving, by a preponderance of the ev

‐

idence, that the aggravated assaults did, in fact, occur on

separate occasions, as the ACCA requires. See Kirkland

,

687 F.3d at 895. As such, we VACATE Haney’s sentence and

REMAND for the district court to determine in the first in

‐

stance whether (1) aggravated assault in Pennsylvania is a

violent felony, and (2) whether Haney committed the three

assaults simultaneously or on different occasions.