In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-2631

JERRY L. VAN CANNON,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 16-cv-433-bbc — Barbara B. Crabb, Judge.

____________________

ARGUED JANUARY 18, 2018 — DECIDED MAY 16, 2018

____________________

Before SYKES and HAMILTON, Circuit Judges, and LEE,

District Judge.∗

SYKES, Circuit Judge. In 2009 Jerry Van Cannon pleaded 

guilty to possessing a firearm as a felon in violation of

18 U.S.C. § 922(g)(1). He was sentenced under the Armed 

Career Criminal Act (“ACCA”), which imposes higher 

 ∗ Of the Northern District of Illinois, sitting by designation.
2 No. 17-2631

penalties on § 922(g) violators who have three prior convictions for a “violent felony” or “serious drug offense.” Id.

§ 924(e). Van Cannon’s presentence report identified five 

qualifying ACCA predicates, including Iowa convictions for 

burglary and attempted burglary and a Minnesota conviction for second-degree burglary. The district judge accepted 

this tally and imposed the mandatory minimum 15-year

prison term.

In 2015 the Supreme Court invalidated, on vagueness 

grounds, the provision in the “violent felony” definition

known as the “residual clause.” Johnson v. United States, 

135 S. Ct. 2551, 2563 (2015). Within a year Van Cannon filed 

for relief under 28 U.S.C. § 2255 in light of Johnson. A few 

days later, the Supreme Court held that Iowa burglary does 

not qualify under another part of the definition. Mathis v. 

United States, 136 S. Ct. 2243, 2257 (2016).

The government conceded the Johnson error. The Iowa 

attempted burglary was a residual-clause offense and no 

longer counted toward Van Cannon’s ACCA total. And 

Mathis knocked out the Iowa burglary. Still, three predicates 

remained, so the government argued that the Johnson error 

was harmless. The judge agreed and denied § 2255 relief.

A few weeks later, the judge withdrew her order. A recent Eighth Circuit opinion had cast doubt on whether one 

of the remaining predicates—the Minnesota second-degree 

burglary—still counted after Mathis. See United States v. 

McArthur, 836 F.3d 933 (8th Cir. 2016), amended & superseded 

by United States v. McArthur, 850 F.3d 925 (8th Cir. 2017). The 

judge appointed counsel and ordered briefing. Van Cannon 

argued that Minnesota second-degree burglary is not an 

ACCA predicate; the government maintained that it is. The 
No. 17-2631 3

judge ultimately sidestepped the issue, concluding instead

that Van Cannon’s claim was untimely.

We reverse. First, Van Cannon’s § 2255 claim was timely; 

he properly challenged his sentence within one year of 

Johnson. Second, we agree with the Eighth Circuit that the 

Minnesota crime of second-degree burglary does not qualify 

as an ACCA predicate. See United States v. Crumble, 878 F.3d 

656, 661 (8th Cir. 2018); see also McArthur, 850 F.3d at 937–40. 

A burglary counts for ACCA purposes only if its elements 

match the elements of “generic” burglary, defined as “an 

unlawful or unprivileged entry into, or remaining in, a 

building or other structure, with intent to commit a crime.” 

Taylor v. United States, 495 U.S. 575, 598 (1990). The 

Minnesota statute covers a broader swath of conduct than

generic burglary. It permits conviction without proof of 

burglarious intent—that is, without proof that the offender 

had the intent to commit a crime at the moment he unlawfully entered or unlawfully “remained in” the building or 

structure. Accordingly, the Minnesota burglary drops out of 

the ACCA total, leaving only two predicates. Van Cannon is 

entitled to resentencing.

I. Background

Van Cannon is no stranger to trouble with the law. From 

1984 to 2008, he was convicted of multiple crimes in three

states. As relevant here, his record includes an Iowa seconddegree burglary (1984), an Iowa attempted burglary (1992), 

an Iowa drug felony (1993), a Wisconsin armed robbery 

(1996), a Minnesota second-degree burglary (2003), and a 

Wisconsin fleeing (2008).
4 No. 17-2631

In the fall of 2008, police received a tip that Van Cannon 

was selling methamphetamine out of a motel in Eau Claire 

County, Wisconsin. Several days later the tipster reported 

that Van Cannon had expressed interest in purchasing an 

assault rifle and hinted at possible robberies in the near 

future. 

The informant agreed to cooperate with police and introduced Van Cannon to an undercover officer posing as a 

source for firearms. Van Cannon told the officer he wanted 

“nothing less than a .357 magnum.” Recorded phone conversations followed, and the officer eventually called 

Van Cannon and offered to sell him a Rock Island Armory 

.45-caliber pistol for $400. Van Cannon was short on cash, so 

the officer agreed to front the gun on the condition that 

Van Cannon would pay $800 to $900 after he completed a 

“job.” The two met in a Walmart parking lot for the exchange. Van Cannon took possession of the gun and was 

promptly arrested.

A grand jury indicted Van Cannon for possessing a firearm as a felon in violation of § 922(g)(1). He pleaded guilty 

as charged. The crime ordinarily carries a 10-year maximum, 

see 18 U.S.C. § 924(a)(2), but the ACCA sets a 15-year minimum term and lifts the maximum to life in prison if the 

defendant has three or more prior convictions for a “violent 

felony” or “serious drug offense,” § 924(e).

The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that

• “has as an element the use, attempted use, 

or threatened use of physical force against 

the person of another”;
No. 17-2631 5

• “is burglary, arson, or extortion, [or] involves the use of explosives”; or 

• “otherwise involves conduct that presents a 

serious potential risk of physical injury to 

another.”

§ 924(e)(2)(B). The first part of the definition is known as the 

“force clause”; the second clause lists specific qualifying 

offenses, most notably burglary; and the third clause is the 

“residual clause.”

The presentence report (“PSR”) identified five qualifying 

ACCA predicates: Iowa convictions for burglary and attempted burglary, the Iowa drug offense, the Wisconsin 

armed robbery, and the Minnesota second-degree burglary. 

Van Cannon’s Wisconsin fleeing conviction also qualified at 

the time, see Sykes v. United States, 564 U.S. 1 (2011), overruled 

by Johnson, 135 S. Ct. 2551, but the PSR didn’t include it in the 

ACCA count, perhaps because it was surplus. The judge 

accepted the PSR’s list of qualifying predicates and sentenced Van Cannon to the statutory minimum 15-year prison 

term.

In June 2015 the Supreme Court invalidated the residual 

clause as unconstitutionally vague. Johnson, 135 S. Ct. at 

2563. In June 2016, just before the expiration of the one-year 

limitations period, see § 2255(f), Van Cannon moved pro se to 

vacate his sentence in light of Johnson. A few days later, the 

Supreme Court held that Iowa burglary is not an ACCA 

predicate. Mathis, 136 S. Ct. at 2257.

In response to the § 2255 motion, the government agreed 

that Van Cannon’s Iowa attempted-burglary and Wisconsin

fleeing convictions were residual-clause offenses and thus no 
6 No. 17-2631

longer qualified after Johnson. The government also conceded that the Iowa burglary dropped out as an ACCA predicate in light of Mathis. But three convictions remained—the 

Iowa drug offense, the Wisconsin armed robbery, and the 

Minnesota second-degree burglary—so the government 

argued that the Johnson error was harmless. The judge 

agreed and denied the motion.

About a month later, the judge withdrew her order based 

on the Eighth Circuit’s decision in McArthur, 836 F.3d 933, 

which caused her to question whether the Minnesota burglary conviction still qualified as an ACCA predicate after 

Mathis. The judge appointed counsel for Van Cannon and 

ordered the parties to brief the issue. In the meantime, the 

Eighth Circuit issued a new opinion in McArthur unequivocally holding that the Minnesota crime of third-degree 

burglary is not an ACCA predicate. 850 F.3d at 937–40.

Minnesota second-degree burglary—Van Cannon’s crime of 

conviction—is defined in much the same way as thirddegree burglary, only the second-degree crime is committed 

in particular places (e.g., a dwelling) or with burglarious 

tools.1 Compare MINN. STAT. § 609.582(2)(a) with § 609.582(3).

Now represented by counsel, Van Cannon urged the 

judge to follow the Eighth Circuit’s decision in McArthur, 

 1 The definition is almost the same as the third-degree offense, but the 

crime is elevated to second-degree burglary if the building in question is 

a dwelling, bank, or pharmacy, or if the offender possesses burglarious 

tools. See MINN. STAT. § 609.582(2)(a). In 2007 Minnesota renumbered the 

second-degree burglary statute, changing it from § 609.582(2) to 

§ 609.582(2)(a). The operative language remains the same. We use the 

current numbering to refer to both versions.
No. 17-2631 7

vacate the 15-year sentence, and resentence him without the 

ACCA enhancement. The government argued that McArthur 

was wrongly decided. In the end the judge did not reach the 

merits question. She held instead that Van Cannon’s § 2255 

claim was untimely and dismissed it.

Van Cannon appealed. While the appeal has been pending, the Eighth Circuit applied its reasoning in McArthur to 

the Minnesota crime of second-degree burglary, holding that 

it is not an ACCA predicate. Crumble, 878 F.3d at 661. 

II. Discussion

Van Cannon argues, as he did in the district court, that 

his 15-year sentence is unlawful because Minnesota seconddegree burglary—one of three available ACCA predicates

after Johnson—does not qualify as a violent felony. Before we 

take up that merits question, we pause to clear some procedural underbrush.

A. Sua Sponte Vacatur

As we’ve explained, the judge initially agreed with the 

government that the Johnson error was harmless and denied 

the § 2255 motion on the merits. A few weeks later, she

withdrew that order sua sponte. The government did not 

object to this procedural move, either in the district court or 

here. That would ordinarily be a waiver, but it’s not clear 

whether the judge’s action affects appellate jurisdiction. 

Probably not, but in an abundance of caution, we briefly 

address the matter. 

Rule 60(b) of the Federal Rules of Civil Procedure permits the court “[o]n motion and just terms” to grant relief 

from a final judgment for the reasons listed. Appellate courts 

disagree on whether district judges may grant Rule 60(b)
8 No. 17-2631

relief sua sponte. Some circuits hold that the rule requires a 

party’s motion. See, e.g., United States v. Pauley, 321 F.3d 578, 

581 (6th Cir. 2003); Eaton v. Jamrog, 984 F.2d 760, 762 (6th Cir. 

1993); Dow v. Baird, 389 F.2d 882, 884–85 (10th Cir. 1968). 

Others hold that the district court may vacate a judgment on 

its own motion. See, e.g., Pierson v. Dormire, 484 F.3d 486, 491–

92 (8th Cir. 2007); McDowell v. Celebrezze, 310 F.2d 43, 44 (5th

Cir. 1962).

Circuit precedent puts us in the latter camp, though 

without much explanation. In Simer v. Rios, we summarily 

held that the district court may vacate a final judgment 

under Rule 60(b) on its own motion. 661 F.2d 655, 663 n.18 

(7th Cir. 1981). An even older decision reached the same 

conclusion. Ray v. United States, 121 F.2d 416, 418 (7th Cir. 

1941). Other cases—in this court and elsewhere—discuss the 

current circuit split without mentioning Simer or Ray. See, 

e.g., Judson Atkinson Candies, Inc. v. Latini–Hohberger Dhimantec, 529 F.3d 371, 385 (7th Cir. 2008) (discussing the circuit 

split but overlooking Simer and Ray); Ocean City Costa Rica 

Inv. Grp., LLC v. Camaronal Dev. Grp., LLC, 571 F. App’x 122, 

127 (3d Cir. 2014) (same).

There may be good reason to reconsider Simer and Ray,

especially in light of Rule 60’s revised text. Compare FED. R.

CIV. P. 60(a) (providing that a court may correct a clerical 

mistake “on motion or on its own” (emphasis added)), with 

id. 60(b) (providing that a court may vacate a judgment only 

“[o]n motion and just terms”). The government hasn’t asked 

us to do so here, so we leave the question for another day.
No. 17-2631 9

B. Timeliness

After ordering briefs on the effect of the Eighth Circuit’s

decision in McArthur, the judge surprised everyone by

dismissing Van Cannon’s § 2255 motion as untimely. That 

was error.

Ordinarily a prisoner must file a § 2255 motion within 

one year of sentencing. 28 U.S.C. § 2255(f)(1). But the oneyear clock restarts when the Supreme Court newly recognizes a right and its decision applies retroactively to cases on 

collateral review. Id. § 2255(f)(3). Johnson fits the bill. The 

Court recognized a new due-process right and later held that 

the right applies retroactively. See Welch v. United States, 

136 S. Ct. 1257 (2016). Van Cannon moved to vacate his 

sentence within one year of Johnson, so his request for § 2255 

relief was timely.

The district judge saw things differently. After taking a 

second look at the motion, she decided that Van Cannon

wasn’t really making a Johnson claim after all. As she understood the motion, Van Cannon relied not on Johnson (or at 

least not on Johnson alone) but on Mathis. She went on to 

hold that Mathis is not retroactive, so the one-year limitations clock never restarted and the § 2255 motion was therefore untimely.

This chain of reasoning rests on a misunderstanding of

the claim. To win § 2255 relief, Van Cannon had to establish 

a Johnson error and that the error was harmful. The government confessed the Johnson error: Van Cannon’s Iowa conviction for attempted burglary was a residual-clause offense 

and thus was wrongly included in his ACCA total. The only 

remaining dispute concerned the question of prejudice. The 
10 No. 17-2631

government argued that the error was harmless because 

Van Cannon still had three qualifying ACCA predicates—

the Wisconsin armed robbery, the Iowa drug offense, and 

the Minnesota second-degree burglary.

To rebut this argument, Van Cannon was entitled to 

show that under current caselaw, one or more of those 

remaining predicates could not be counted. See United States 

v. Geozos, 870 F.3d 890, 897 (9th Cir. 2017). That’s exactly 

what he did. He maintained that the Johnson error was 

prejudicial in light of Mathis, which refined the categorical 

approach—first established in Taylor—for determining 

ACCA predicates. Under Mathis and Taylor, he argued, his 

Minnesota conviction for second-degree burglary could no 

longer be included in the ACCA count, leaving only two 

qualifying predicates—not enough for an enhanced sentence. Properly understood, then, Van Cannon invoked

Mathis and Taylor not as independent claims but to show 

that the Johnson error was prejudicial.

The parties agree on this characterization of 

Van Cannon’s motion. The government concedes, as it must, 

that Van Cannon’s Iowa burglary conviction drops out of the 

ACCA count in light of Mathis. The government also agrees

that the Wisconsin fleeing conviction cannot be added to the 

mix to make up the gap. Though considered a residualclause offense at the time of sentencing, see Sykes, 564 U.S. 1, 

overruled by Johnson, 135 S. Ct. at 2563, it no longer qualifies.

For his part, Van Cannon admits that his Iowa drug conviction and his Wisconsin armed robbery still count as 

ACCA predicates. So the harmless-error question boils down 

to the proper classification of the Minnesota second-degree 

burglary conviction. If it qualifies as a violent felony, then 
No. 17-2631 11

Van Cannon has three valid predicates and the Johnson error 

was harmless. If it does not, then the error was prejudicial

and Van Cannon must be resentenced.

C. Minnesota Second-Degree Burglary

With these procedural matters out of the way, we turn 

now to the question of how to classify the Minnesota crime

of second-degree burglary. The ACCA includes burglary in 

its list of enumerated violent felonies, see § 924(e)(2)(B)(ii), 

but the statute does not define “burglary.” Taylor holds that 

the ACCA incorporates the “modern, generic 1984 definition”—that is, “the generic sense in which the term [was 

then] used in the criminal codes of most [s]tates.” 495 U.S. at 

544, 598. Generic burglary “contains at least the following 

elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a 

crime.” Id. at 598 (citing 2 WAYNE R. LAFAVE & AUSTIN W.

SCOTT, SUBSTANTIVE CRIMINAL LAW § 8.13(a), (c), (e) (1986)). 

This definition “approximates that adopted by the drafters 

of the Model Penal Code.” Id. at 598 n.8.

Taylor also holds that classifying convictions under the

ACCA requires a categorical approach that looks only to 

“the elements of the statute of conviction, not to the facts of 

each defendant’s conduct.” Id. at 601. Limiting the inquiry to

statutory elements rather than actual facts implements the 

text of the ACCA, which “refers to ‘a person who ... has 

three previous convictions’ for—not a person who has committed—three previous violent felonies or drug offenses.” Id. 

at 600 (emphases added) (quoting § 924(e)(2)(B)(i)). Taylor’s

elements-based approach also rests on concerns about 

fairness and reinforces the Sixth Amendment rule against 
12 No. 17-2631

increasing penalties based on judge-found facts. Mathis, 

136 S. Ct. at 2252–53.

So Minnesota’s crime of second-degree burglary will 

qualify as an ACCA predicate “only if its elements match 

those of [the] generic offense.” Id. at 2251. Under the categorical approach, “[a] crime counts as ‘burglary’ under the Act 

if its elements are the same as, or narrower than, those of the 

generic offense.” Id. at 2248. If, on the other hand, the statute

in question “sweeps more broadly” than the generic offense,

then the conviction doesn’t qualify as an ACCA predicate. 

Descamps v. United States, 570 U.S. 254, 260 (2013). 

One final doctrinal point before we proceed. The categorical comparison is easy if the statute in question contains 

only one set of elements defining a single crime: the sentencing court simply compares that set to the elements of the 

generic offense. Things get tricky, however, if the statute is 

phrased alternatively—if, for example, it lists elements in the 

alternative and thus defines more than one crime, or if it lists 

different factual means of committing an element of a single 

crime. Mathis, 136 S. Ct. at 2249.

An alternatively phrased statute of the first type—one 

that lists alternative elements—is considered “divisible” in 

the sense that it divides into multiple crimes. For that kind of 

statute, the sentencing court must “determine what crime, 

with what elements, a defendant was convicted of” before 

counting the conviction as an ACCA predicate. Id. This 

inquiry brings into play the so-called “modified categorical 

approach,” which permits the 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 
No. 17-2631 13

crime of conviction match (or are narrower than) the elements of the generic offense. Id. Again, the underlying facts 

of the defendant’s conduct do not matter. Id. at 2256 (“Given 

[the] ACCA’s indifference to how a defendant actually 

committed a prior offense, the court may ask only whether 

the elements of the state crime and generic offense make the 

requisite match.”).

It follows, then, that if an alternatively phrased statute 

describes different factual means of committing an element 

of a single crime, then the modified categorical approach has 

no role to play. Id. at 2253. A statute of this type is “indivisible”: it defines a single offense, albeit one with multiple 

modes of commission. Id. at 2248. If the alternative means 

listed in an indivisible statute cover a broader swath of 

conduct than the generic offense, then a conviction under the 

statute doesn’t count as an ACCA predicate. Id. at 2251. Put 

slightly differently, “if the crime of conviction covers any 

more conduct than the generic offense, then it is not an 

ACCA ‘burglary’—even if the defendant’s actual conduct 

(i.e., the facts of the crime) fits within the generic offense’s 

boundaries.” Id. at 2248.

Our job is made easier because the Eighth Circuit preceded us in applying these principles to Minnesota’s burglary 

statute. Extrapolating from its earlier decision in McArthur,

the Eighth Circuit recently concluded that Minnesota’s

second-degree burglary statute is indivisible, covers more 

conduct than the generic offense, and thus is not an ACCA 

predicate. Crumble, 878 F.3d at 661; see also McArthur, 

850 F.3d at 937 (holding the same for Minnesota third-degree 

burglary). We agree.
14 No. 17-2631

The Minnesota crime of second-degree burglary is defined as follows: “Whoever enters a building without consent and with intent to commit a crime, or enters a building 

without consent and commits a crime while in the building, either 

directly or as an accomplice, commits burglary in the second 

degree” if certain aggravating factors are present. MINN.

STAT. § 609.582(2)(a) (emphasis added). The disjunctive 

phrasing describes two different factual ways of committing

a single crime; it does not establish two crimes. That’s how 

the Eighth Circuit read the statute. Crumble, 878 F.3d at 661 

(construing the Minnesota second-degree burglary statute);

McArthur, 850 F.3d at 938 (construing almost identical 

language in the same statute defining third-degree burglary). Because the two statutory alternatives are different 

means of committing a single crime rather than distinct 

elements of separate crimes, the Eighth Circuit held that the 

statute is indivisible. Crumble, 878 F.3d at 661; McArthur, 

850 F.3d at 938. The government does not challenge this 

conclusion, and we see no reason to disagree with our sister 

circuit, which has greater familiarity with Minnesota law.

Because the statute is indivisible, a conviction under it 

does not count as an ACCA predicate if one of the listed 

alternatives is broader than generic burglary. That describes 

this statute. The first alternative is generic burglary: A 

person commits burglary in the second degree if he “enters a 

building without consent and with intent to commit a 

crime.” MINN. STAT. § 609.582(2)(a). But the second alternative is not: A person can be convicted of this same crime if he 

“enters a building without consent and commits a crime

while in the building.” Id.
No. 17-2631 15

The second alternative is just a trespass (a nonconsensual

entry) followed by the commission of a crime within the 

trespassed building at some point thereafter. Thus a person 

could be convicted under this statute if, for example, he 

broke into a building without permission to escape the cold 

and only later decided to steal something (or caused injury 

to person or property, whether intentionally or recklessly). 

On those facts the entry would be unprivileged but not 

accompanied by burglarious intent—that is, the perpetrator 

did not commit an unprivileged entry with the present intent

to commit a crime in the building. The second alternative in 

the Minnesota statute thus covers a broader swath of conduct than Taylor’s definition of generic burglary. 

The government insists that the second alternative fits

comfortably within Taylor’s definition of generic burglary, 

which includes the act of unlawfully “remaining in ... a 

building ... with intent to commit a crime.” 495 U.S. at 598 

(emphasis added). In the government’s view, Minnesota’s 

trespass-plus-crime alternative matches the “remaining in” 

version of generic burglary because this variant of the

generic offense requires only that intent to commit a crime 

arise at some point while the perpetrator is in the trespassed 

building.

We see several problems with this argument. For starters, 

the trespass-plus-crime alternative in the Minnesota statute 

doesn’t require proof of intent to commit a crime at all—not 

at any point during the offense conduct. The government 

maintains that intent to commit a crime is implicit because 

the statute requires proof of a completed crime within the

trespassed building. But not all crimes are intentional; some 

require only recklessness or criminal negligence. That aside,
16 No. 17-2631

Taylor’s elements-based approach does not countenance 

imposing an enhanced sentenced based on implicit features 

in the crime of conviction.

More importantly, the government’s argument overlooks 

that generic burglary requires intent to commit a crime at the 

moment of the unlawful entry or unlawful “remaining in” a 

building or structure. That’s what distinguishes burglary 

from simple trespass. As the Eighth Circuit has explained, 

the proper reading of Taylor “and the sources on which it 

relied [is] that a generic burglary requires intent to commit a 

crime at the time of the unlawful or unprivileged entry or the 

initial ‘remaining in’ without consent.” McArthur, 850 F.3d at 

939 (emphasis added) (citing 2 WAYNE R. LAFAVE & AUSTIN 

W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 8.13(b), (e), at 

468, 473–74 & n.101 (1st ed. 1986)). 

“Contemporaneous intent was the essence of burglary at 

common law,” and Taylor’s phrasing of the intent element 

“mirrors the typical phrasing at common law.” United States 

v. Bonilla, 687 F.3d 188, 196–97 (4th Cir. 2012) (Traxler, C.J., 

dissenting) (citing 3 WAYNE R. LAFAVE, SUBSTANTIVE 

CRIMINAL LAW § 21.1(e) (2d ed. 2003) and 4 WILLIAM 

BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 

(1769)). Taylor relies on the 1986 LaFave treatise and the 

Model Penal Code, both of which explain that a key requirement of burglary is the element of contemporaneous intent

to commit a crime at the moment of the unlawful entry or 

unlawful “remaining in” the structure. See LAFAVE & SCOTT, 

supra, § 8.13(b), at 468 (explaining that intent “need only 

exist at the time the defendant unlawfully remained within”); MODEL PENAL CODE § 221.1 cmt. (1), (3) (AM. LAW INST. 

1980) (referring to the “purpose that accompanies the entry” 
No. 17-2631 17

and “the purpose that must accompany the intrusion”). The 

current version of the LaFave treatise retains this requirement. See 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW 

§ 21.1(e) (3d ed. 2016). So a person commits the remainingin variant of generic burglary when he enters with consent

but exceeds the scope of that consent—say, for example, by 

staying in a store after closing time or by entering a part of a 

building not covered by the consent. But it’s not a burglary 

unless the person had the intent to commit a crime at the 

moment he unlawfully “remained in” the building. Id. 

§ 21.1(b) & n.47.

Moreover, and contrary to the government’s view, the

remaining-in variant of generic burglary is not a continuous 

act. “Rather, it is a discrete event that occurs at the moment 

when a perpetrator, who at one point was lawfully present, 

exceeds his license and overstays his welcome.” McArthur, 

850 F.3d at 939. We know this because Taylor referred to

“entry into, or remaining in” as discrete, alternative acts. On 

the government reading of the generic offense, “entry” is 

almost superfluous: If “remaining in” is a continuous act, 

then every unlawful “entry” would immediately become an 

unlawful “remaining” as well. See United States v. Herrold, 

883 F.3d 517, 532 (5th Cir. 2018) (en banc); McArthur, 

850 F.3d at 939.

So we agree with the Eighth Circuit that Minnesota’s 

trespass-plus-crime alternative for second-degree burglary 

covers more conduct than Taylor’s definition of generic 

burglary. See Crumble, 878 F.3d at 660–62; see also McArthur, 

850 F.3d at 939 (“If the defendant does not have the requisite 

intent at the moment he ‘remains,’ then he has not committed the crime of generic burglary.”). Accordingly, Minnesota 
18 No. 17-2631

second-degree burglary does not qualify as a violent felony 

under the ACCA.2

Only two ACCA predicates remain—the Wisconsin 

armed robbery and the Iowa drug offense. That’s not 

enough to support the enhanced sentence. Because the

Johnson error was prejudicial, Van Cannon must be resentenced.

REVERSED and REMANDED.

 2 There is an emerging circuit split on the correct way to understand 

Taylor’s requirement of burglarious intent. Compare United States v. Priddy, 

808 F.3d 676, 684–85 (6th Cir. 2015), abrogated on other grounds, United 

States v. Stitt, 860 F.3d 854, 856 (6th Cir. 2017) (en banc), and United States 

v. Bonilla, 687 F.3d 188, 192–94 (4th Cir. 2018), with United States v. Herrold, 

883 F.3d 517, 531–36 (5th Cir. 2018) (en banc), and United States v. 

McArthur, 850 F.3d 925, 939 (8th Cir. 2017).