### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 16

‐ 1580 & 16

‐ 1872

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D ENNIS F RANKLIN & S HANE S AHM

, Defendants

‐ Appellants

.

____________________

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

.

____________________

S UBMITTED F OR R EHEARING A PRIL 11, 2018

—

D ECIDED J ULY 17, 2018

____________________

Before K ANNE and H AMILTON

, Circuit Judges

. *

P ER C URIAM

. The defendant

‐ appellants’ petition for panel

rehearing is GRANTED, and the opinion and judgment is

‐

sued February 26, 2018, are VACATED. Pursuant to Circuit

* Circuit Judge Posner heard argument but retired on September 2, 2017,

and did not participate in the decision of this case. A quorum of the panel

continues to hear and decide the case under 28 U.S.C. § 46(d).2 Nos. 16

‐ 1580 & 16

‐ 1872

Rule 52 and Wis. Stat. § 821.01, we request that the Wisconsin

Supreme Court answer a question of Wisconsin law that

should control our decision in these appeals of federal sen

‐

tences under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e). See generally 884 F.3d 331 (7th Cir. 2018) (panel opin

‐

ion).

The question concerns the location provisions of the Wis

‐

consin burglary statute, which provides as follows:

Whoever intentionally enters any of the follow

‐ ing places without the consent of the person in

lawful possession and with intent to steal or

commit a felony in such place is guilty of a Class

F felony:

(a) Any building or dwelling; or

(b) An enclosed railroad car; or

(c) An enclosed portion of any ship or vessel; or

(d) A locked enclosed cargo portion of a truck or

trailer; or

(e) A motor home or other motorized type of home

or a trailer home, whether or not any person is

living in any such home; or

(f) A room within any of the above.

Wis. Stat. § 943.10(1m).

Our question, see below at 14, is whether the different lo

‐

cation subsections (a)–(f) identify alternative elements of bur

‐ glary or instead only identify alternative means of committing

burglary. See, e.g., State v. Hendricks

, 379 Wis.2d 549, 565–72,Nos. 16

‐ 1580 & 16

‐ 1872 3

906 N.W.2d 666, 673–77 (Wis. 2018) (deciding similar question

under child enticement statute, Wis. Stat. § 948.07).

The question may seem obscure or even arcanely meta

‐ physical, at least without a fair amount of background infor

‐

mation about the federal Armed Career Criminal Act, its ref

‐

erence to burglary convictions, and several related cases. (See

below.) But, despite the layers of federal sentencing precedent

that frame this issue, this is at bottom a controlling question

of State criminal law. The answer to this question controls not

only the validity of these appellants’ federal sentences; it also

affects how Wisconsin juries must be instructed, what jurors

must agree upon unanimously, and how double jeopardy

protections may apply.

I. The Armed Career Criminal Act

The key substantive provision of the Armed Career Crim

‐

inal Act states:

In the case of a person who violates section

922(g) of this title [unlawful possession, receipt,

shipment, or transportation of firearms] and has

three previous convictions by any court referred to

in section 922(g)(1) of this title for a violent felony

or a serious drug offense, or both, committed on

occasions different from one another, such per

‐

son shall be fined under this title and impris

‐

oned not less than fifteen years[.]

18 U.S.C. § 924(e)(1) (emphasis added).

The normal 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). A defendant with three qualifying convic

‐4 Nos. 16

‐ 1580 & 16

‐ 1872

tions for violent felonies, however, falls under the § 924(e) en

‐

hancement quoted above and faces a mandatory minimum of

fifteen years in prison. See United States v. Bennett

, 863 F.3d

679, 680 (7th Cir. 2017). The maximum becomes life in prison.

What qualifies as a conviction for a “violent felony” under

§ 924(e)? The statutory definition reads:

the term “violent felony” means any crime pun

‐

ishable by imprisonment for a term exceeding

one year

... that—

(i) has as an element the use, attempted use, or

threatened use of physical force against the per

‐

son of another; or

(ii) is burglary

, arson, or extortion, involves use

of explosives, or otherwise involves conduct

that presents a serious potential risk of physical

injury to another[.]

18 U.S.C. § 924(e)(2)(B) (emphasis added).

A. “ Generic” Burglary and the “Categorical Method ”

So a felony conviction for “burglary” counts toward the

three violent felonies that can trigger the severe sentences un

‐

der the Armed Career Criminal Act.

What counts as a “burglary”? The federal statute contains

no specific definition. The Supreme Court of the United States

addressed that problem in Taylor v. United States

, 495 U.S. 575

(1990). State burglary laws vary a great deal: some do not re

‐ quire unlawful entry; others extend the crime to vehicles and

even vending machines. Id

. at 590–91, 599, and 580, citing

United States v. Hill

, 863 F.2d 1575, 1582 n.5 (11th Cir. 1989).

Taylor held that a State’s label of “burglary” does not control.Nos. 16

‐ 1580 & 16

‐ 1872 5

Id

. at 590. Instead, Taylor adopted a “generic” definition of

burglary for purposes of § 924(e): “an unlawful or unprivi

‐ leged entry into, or remaining in, a building or other struc

‐

ture, with intent to commit a crime.” Id

. at 598.

Taylor also decided how federal courts should analyze a

State’s burglary statute, and that method can be counter

‐ intu

‐

itive. Taylor held that courts must use a formal “categorical

approach” that “look[s] only to the fact of conviction and the

statutory definition of the prior offense.” Id. at 602. The cate

‐ gorical approach focuses on “the elements of the statute of

conviction, not

... the facts of each defendant’s conduct.” Id.

at 601. Limiting the inquiry to statutory elements flows from

the text of the Armed Career Criminal Act, which “refers to ‘a

person who

... has three previous convictions ’ for—not a per

‐

son who has committed —three previous violent felonies or

drug offenses.” Id. at 600 (emphasis added), quoting 18 U.S.C.

924(e)(1).

Taylor added, however, that the sentencing court could “go

beyond the mere fact of conviction in a narrow range of cases

where a jury was actually required to find all the elements of

generic burglary”—such as entry of a building. In this narrow

range of cases, the court may look to charging documents or

jury instructions to determine the crime of conviction. Id. at

602. This is known as the “modified categorical approach,”

which is at the heart of these appeals. We’ll come back to it

after explaining the facts of these appeals.

In these appeals, both appellants, Dennis Franklin and

Shane Sahm, were sentenced for the federal crime of being a

felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). Both were sentenced as armed career criminals

under 18 U.S.C. § 924(e). That raised the statutory sentencing6 Nos. 16

‐ 1580 & 16

‐ 1872

range from a maximum of ten years in prison to a minimum

of fifteen years in prison and a maximum of life in prison. The

decisive prior convictions for both Franklin and Sahm were

Wisconsin burglary convictions under Wis. Stat. § 943.10(1m).

There is no doubt that what Franklin and Sahm actually

did to earn their prior convictions was burglarize buildings or

structures, as prohibited by § 943.10(1m)(a). Their actions fit

within the “generic burglary” definition adopted in Taylor

—

“an unlawful or unprivileged entry into, or remaining in, a

building or other structure

, with intent to commit a crime.”

But under the categorical method adopted in Taylor

, what

counts is not what they actually did but the statutory defini

‐

tion of the crime. Taken as a whole, Wis. Stat. § 943.10(1m) is

considerably broader than the “generic burglary” definition

adopted in Taylor

. The Wisconsin statute reaches burglaries of

boats, trucks, and trailers, see id. at (c)–(e), but the Taylor def

‐

inition does not. Thus, if we apply the “categorical” approach

to the whole burglary statute, then Franklin and Sahm cannot

be sentenced as armed career criminals under 18 U.S.C.

§ 924(e). See, e.g., 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 un

‐

der Armed Career Criminal Act, even where defendant ad

‐

mitted he had actually broken into and entered a building to

commit a crime).

B. “Divisibility” and the “Modified Categorical Approach”

That reasoning takes us, in this field of federal statutory

sentencing enhancements based on prior convictions, to the

concepts of “divisibility” and the “modified categorical ap

‐ proach.” The categorical approach is straightforward enoughNos. 16

‐ 1580 & 16

‐ 1872 7

if the state statute of conviction contains only one set of ele

‐

ments defining a single crime. The sentencing court just com

‐

pares that set to Taylor ’s generic burglary to see if the elements

match. The categorical approach is more difficult to apply if

the statute in question is phrased alternatively, as many bur

‐ glary statutes are—including Wisconsin’s.

The Supreme Court has explained that alternatively

phrased statutes come in two types: (1) those that list alterna

‐

tive elements (thus defining more than one crime within a sin

‐ gle statute) and (2) those that list alternative means of commit

‐ ting an element of a single crime. See Mathis v. United States

,

136 S. Ct. 2243, 2249 (2016). If the statutory alternatives are

different elements

, then the statute is considered “divisible” in

the sense that it divides into multiple crimes. Mathis

, 136 S. Ct.

at 2249. For that kind of statute, the federal court must “deter

‐

mine what crime, with what elements, a defendant was con

‐

victed of” before counting the conviction as a predicate under

the Armed Career Criminal Act. Id.

This brings into play the “modified categorical approach”

mentioned above. It permits the sentencing court to review “a

limited class of documents (for example, the indictment, jury

instructions, or plea agreement and colloquy),” but only for

the limited purpose of determining whether the elements of

the state crime of conviction match (or are narrower than) the

elements of Taylor ’s generic burglary. Id. at 2249, 2256. But the

modified categorical approach has no role to play if an alter

‐ natively phrased statute describes different factual means of

committing an element of a single crime. Recall that under

Taylor the actual facts of the underlying case are off

‐ limits. Id.

at 2248. A statute of this latter type—one that lists alternative

means —is indivisible. If its alternatives cover a broader swath8 Nos. 16

‐ 1580 & 16

‐ 1872

of conduct than Taylor ’s generic burglary, then the conviction

does not qualify under the Act. Id. at 2251; see also Van Cannon

v. United States

, 890 F.3d 656, 662–63 (7th Cir. 2018).

Mathis addressed the Iowa burglary statute. Like the Wis

‐

consin statute, the Iowa statute extended to boats and vehi

‐

cles, so it was broader than the federal “generic” burglary. The

Supreme Court held that the Iowa statute was not divisible

and thus could not support Armed Career Criminal Act sen

‐

tences. That decision was easy in Mathis because the Iowa Su

‐

preme Court had held that the different locations in the Iowa

statute were alternative means that did not require jury una

‐ nimity. Mathis

, 136 S. Ct. at 2256, citing State v. Duncan

, 312

N.W.2d 519, 523 (Iowa 1981).

Subsection (1m)(a) of the Wisconsin burglary statute, cov

‐ ering burglaries of buildings or dwellings, fits within the fed

‐

eral generic burglary definition. In these appeals, the United

States has argued that the Wisconsin burglary statute is divisi

‐

ble among the different subsections listing different locations

that are protected against burglarious entry. Charging docu

‐

ments for both Franklin and Sahm show they were charged

with and convicted under § 943.10(1m)(a) for burglarizing

buildings or structures.

The government thus argues that their convictions fall

within Taylor ’s generic burglary definition and they were

properly sentenced as armed career criminals. That argument

is valid if—and only if—the Wisconsin burglary statute is di

‐

visible in the sense meant by Mathis and Taylor

. And the di

‐ visibility question in turn depends on the elements/means

distinction we’ve just described: Are the different locations

listed in subsections (1m)(a)–(f) distinct legal elements (so the

burglary statute actually defines multiple crimes), or are theyNos. 16

‐ 1580 & 16

‐ 1872 9

different factual means of committing a single crime that has

a locational element broad enough to cover all of the listed

locations?

A couple of examples may illustrate the problem and its

implications regarding jury unanimity, multiplicity, and dou

‐

ble

‐jeopardy. First, suppose there is a factual question about

just where a burglary took place. A homeowner

‐ victim testi

‐

fies that someone stole a computer, but he is not sure whether

the stolen item was taken from the garage or the recreational

vehicle parked outside in the driveway. See Wis. Stat.

§ 943.10(1m)(a) & (e). To convict for burglary, must the State

prove, and must the jury decide, beyond a reasonable doubt

whether it was the garage or the RV that was burglarized?

Or, to show the issues posed by overlaps among the dif

‐

ferent subsections, suppose a burglar enters the living quar

‐

ters of a houseboat without consent and with the requisite in

‐

tent to steal or commit a felony. Could a Wisconsin prosecutor

charge him with four crimes: burglary in violation of subsec

‐

tion (1m)(a) (because the place he entered was a dwelling);

burglary in violation of subsection (1m)(c) (because the place

he entered was also a vessel); and two counts of burglary in

violation of subsection (1m)(f) (because the place he entered

was both a room within a dwelling and a room within a ves

‐ sel)? Could a court sentence the burglar for more than one

burglary? And how should the court instruct the jury in such

a case? See, e.g., State v. Anderson

, 219 Wis.2d 739, 580 N.W.2d

329 (Wis. 1998) (discussing problem of multiplicity).

II. Elements or Means in Wisconsin? The Parties’ Arguments

In trying to follow the method laid out in Mathis

, our panel

opinion noted that we found no definitive holding from the10 Nos. 16

‐ 1580 & 16

‐ 1872

Wisconsin Supreme Court or other state courts, nor did we

find unmistakable signals in the statute itself, such as differ

‐

ent punishments. 884 F.3d at 334–35. Without such clear sig

‐

nals, the choice between elements and means is more difficult.

For the convenience of the Wisconsin Supreme Court, we

summarize the arguments in the parties’ briefs.

The defendants argue that the burglary statute is similar

in relevant ways to the child enticement statute in State v. De

‐

rango

, 236 Wis.2d 721, 613 N.W.2d 833 (Wis. 2000), which held

that the different intentions in different subsections of Wis.

Stat. § 948.07 were only different means of committing one

crime, not different elements of different crimes. The defend

‐

ants also rely on both the holding and reasoning of United

States v. Edwards

, 836 F.3d 831 (7th Cir. 2016), where we held

that the first subsection of the Wisconsin burglary statute

(“building or dwelling”) was not internally divisible for simi

‐

lar purposes under the then

‐ applicable U.S. Sentencing

Guideline provision for armed career criminals, which ap

‐ plied to burglaries only of dwellings, not of other structures.

Based on Derango

, the defendants also argue that the Wis

‐

consin legislative drafting preference for using different sub

‐

sections does not imply that the different subsections signal

different elements and different crimes. The defendants also

rely on our observation in Edwards that Wisconsin charging

documents are not useful in distinguishing between means

and elements. 836 F.3d at 837–38. Defendants point out that

Wisconsin charging documents often include non

‐ essential

factual details and can even be amended after trial to conform

to the evidence, see Derango

, 236 Wis.2d at 750–52, 613 N.W.2d

at 847, which undermines the charging document’s reliabilityNos. 16

‐ 1580 & 16

‐ 1872 11

in identifying the elements the prosecution must prove be

‐ yond a reasonable doubt. Defendants also point out that State

v. Hammer

, 216 Wis.2d 214, 220–21, 576 N.W.2d 285, 287 (Wis.

App. 1997), held that a burglary defendant’s intended felony

is not an element, and the court observed that the language of

the statute indicated more generally “that the crime here is

one single offense with multiple modes of commission.”

The United States argues that the panel opinion was cor

‐

rect and that the burglary statute clearly breaks out alterna

‐

tive location elements for burglary, at least one of which a jury

must find unanimously and beyond a reasonable doubt. The

statute refers to the entry into “any of the following places,”

which is not specific until a charging instrument or jury in

‐

struction identifies one of the following places from among

the different subsections. The government argues that the

Wisconsin Supreme Court’s decision in Derango does not pro

‐

vide relevant guidance. The government reads Derango as

specific to the child enticement statute because it relied on the

nature of that crime, the role that intentions play (as distinct

from locations in the burglary statute), and statute

‐ specific

legislative history. See 236 Wis.2d at 732–35, 613 N.W.2d at

838–39. The government also argues there is much less over

‐ lap among the burglary location subsections than among the

different intentions in the child

‐ enticement statute.

With respect to Edwards

, the government argues that case

did not decide the elements v. means question for the different

subsections of the burglary statute, and that charging docu

‐

ments from Wisconsin burglary cases in fact identify specific

subsections and provide reliable guidance for the location

charged, which tends to weigh in favor of treating the differ

‐

ent subsections as alternative elements. The government also12 Nos. 16

‐ 1580 & 16

‐ 1872

argues that Wisconsin’s pattern jury instructions signal the

different location subsections are different elements, requir

‐ ing unanimous jury agreement on one location subsection.

See Wis. J.I.—Crim. § 1424 n.2.

Regarding Hammer

, the government notes the state court

was addressing only the intended felony element, not the dif

‐

ferent location subsections. The government also argues that

the legislative history of the burglary statute, in which the leg

‐

islature broadened an earlier statute that covered only “any

structure,” supports treatment of the new, expanded alterna

‐

tives as alternative elements. Along these lines, the govern

‐

ment notes that the Wisconsin Supreme Court has held that

the phrase “with intent to steal or commit a felony” creates

two distinct crimes. Champlain v. State

, 53 Wis.2d 751, 756 &

n.4, 193 N.W.2d 868, 872 & n.4 (Wis. 1972), abrogated on other

grounds, State v. Petrone

, 161 Wis.2d 530, 550–58 & n.14, 468

N.W.2d 676, 683

‐ 86 & n.14 (Wis. 1991). (Defendants contend

that Champlain is no longer good law even on the separate of

‐

fense point, citing both Derango

, 236 Wis.2d at 750–52, 613

N.W.2d at 847 and Hammer

, 216 Wis.2d at 220, 576 N.W.2d at

287.)

III. Our Request

Like other federal courts, we often encounter questions of

State law. In most cases we simply do our best to decide the

cases before us without asking for help from the State courts.

Here, however, two factors persuade us to ask the Wisconsin

Supreme Court to step in.

First, the question of State law is a close one. Specific guid

‐

ance from State law is limited, and both sides offer good rea

‐

sons for interpreting the available signs in their favor. In ourNos. 16

‐ 1580 & 16

‐ 1872 13

panel opinion, we agreed with the government, but the peti

‐

tion for rehearing argues that our analysis did not give suffi

‐

cient weight to the Wisconsin Supreme Court’s decision in De

‐

rango

, among other points. Upon further consideration, we

view the question of State law as closer than our panel opin

‐

ion did. The Wisconsin courts have considered similar ques

‐

tions in the context of other statutes and the felonious intent

requirement of burglary, see, e.g., State v. Hendricks

, 379

Wis.2d 549, 565–72, 906 N.W.2d 666, 675–76 (Wis. 2018), but it

is not clear which of the “competing cases” from these other

contexts “should control the elements v. means question for

the burglary statute” and its location subsections. 884 F.3d at

336 n.3. In the end, only the Wisconsin Supreme Court can

decide this issue definitively.

Second, this issue of state law is important for both the

federal and state court systems, and a wrong decision on our

part could cause substantial uncertainty and confusion if the

Wisconsin Supreme Court were to disagree with us in a later

decision. The choice between elements and means is decisive

for Franklin and Sahm’s federal sentences, and a number of

other federal defendants may be affected directly. See also

United States v. Lamb

, 847 F.3d 928, 932 (8th Cir. 2017) (holding

that Wisconsin burglary statute was divisible for purpose of

Armed Career Criminal Act conviction for defendant in Min

‐

nesota), cert. denied

, 138 S. Ct. 1438 (2018).

The answer to this question may also have significant

practical effects for at least some of the nearly 2,000 burglary

prosecutions in Wisconsin state courts every year. Those im

‐ plications include the following. How should a jury be in

‐

structed in a burglary trial? What facts must the prosecution14 Nos. 16

‐ 1580 & 16

‐ 1872

prove beyond a reasonable doubt about the place the defend

‐

ant entered unlawfully and with felonious purpose? What

must the jury agree on unanimously about the place? The gen

‐

eral rule is that a jury must agree unanimously on each ele

‐

ment of the charged crime, but not on particular means. The

answer also has implications for questions of multiplicity and

double

‐jeopardy protections, which depend on the elements

of the crimes in question. See Blockburger v. United States

, 284

U.S. 299 (1932). And the answer to the elements v. means

question will have practical consequences for prosecutors de

‐ ciding how to charge a suspect and for defense counsel advis

‐ ing clients about potential defenses and plea negotiations.

Pursuant to Wis. Stat. § 821.01 and our Circuit Rule 52, we

therefore request the Wisconsin Supreme Court to answer the

following question as a matter of Wisconsin law:

Whether the different location subsections of

the Wisconsin burglary statute, Wis. Stat.

§ 943.10(1m)(a)–(f), identify alternative ele

‐

ments 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?

We invite the Wisconsin Supreme Court to revise the question

if it judges that to be appropriate. The facts of these two fed

‐

eral cases are set forth in our panel opinion, 884 F.3d 331 (7th

Cir. 2018), and in the district court’s sentencing transcripts. We

also submit to the Wisconsin Supreme Court the briefs and

records in both of these appeals.Nos. 16

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‐ 1872 15

While we await a response from the Wisconsin Supreme

Court, we will keep these appeals pending in our court, sub

‐ ject to the pending petition for rehearing en banc.