United States Court of Appeals

For the Eighth Circuit

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No. 15-2399

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United States of America

lllllllllllllllllllll Plaintiff - Appellee 

v.

Jonathon Adam Lamb

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Davenport

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Submitted: January 18, 2017

Filed: February 3, 2017

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WOLLMAN, BRIGHT, and LOKEN, Circuit Judges.

*

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LOKEN, Circuit Judge.

This opinion is being filed by Judge Wollman and Judge Loken pursuant to *

8th Cir. Rule 47E.
Jonathon AdamLamb pleaded guilty to being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Lamb to 180

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months in prison, the mandatoryminimumsentence under theArmed Career Criminal

Act (“ACCA”) for a defendant who has three prior “violent felony” convictions. 18

U.S.C. § 924(e)(1). Lamb appealed his sentence. We affirmed, applying the familiar

but often perplexing “categorical approach” to assess whether his prior convictions

were violent felonies as defined in 18 U.S.C. § 924(e)(2)(B). See Descamps v.

United States, 133 S. Ct. 2276, 2283-85 (2013); Johnson v. United States, 559 U.S.

133, 144-45 (2010). We concluded that Lamb’s two prior Michigan unarmed robbery

convictions were violent felonies under the ACCA’s force clause, § 924(e)(2)(B)(i),

and that a state court charging document established that his prior Wisconsin burglary

conviction was for the crime of generic burglary, an enumerated violent felony in

§ 924(e)(2)(B)(ii). United States v. Lamb, 638 F. App’x 575 (8th Cir. 2016). We

noted the Supreme Court had granted a writ of certiorari to review our decision in

United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015), where we upheld applying

the ACCA to an Iowa burglary conviction. 

The Supreme Court reversed our decision in Mathis, 136 S. Ct. 2243 (2016),

granted Lamb’s petition for a writ of certiorari, vacated our judgment, and remanded

“for further consideration in light of Mathis.” Lamb v. United States, 137 S. Ct. 494

(2016). We recalled our mandate and reopened the case but did not vacate our prior

opinion. We now conclude that the Supreme Court’s decision in Mathis, which did

not address the ACCA’s force clause, does not alter our prior decision that Lamb’s

Michigan robbery convictions were ACCA violent felonies. That portion of our prior

opinion is reinstated. Lamb, 638 F. App’x at 576-77. Mathis does require additional

analysis of whether Lamb’s Wisconsin burglary conviction was an enumerated

ACCA violent felony. As we will explain, Mathis does not alter our conclusion that

The Honorable John A. Jarvey, Chief Judge ofthe United States DistrictCourt

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for the Southern District of Iowa.

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he was convicted of generic burglary. Therefore, we again affirmthe judgment of the

district court.

I.

The ACCA defines the term violent felony to include any state or federal

felony that “is burglary.” 18 U.S.C. § 924(e)(2)(B)(ii). In Taylor v. United States, 

the Supreme Court concluded that Congress in the ACCA intended to adopt “the

generic, contemporary meaning of burglary [which] 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.” 495 U.S. 575, 598 (1990). Thus, to

determine whether a prior burglary conviction was for the violent felony of generic

burglary, the Court “focus[es] solely on whether the elements of the crime of

conviction sufficiently match the elements of generic burglary, while ignoring the

particular facts of the case.” Mathis, 136 S. Ct. at 2248. 

Many state burglary statutes are overinclusive, that is, they define burglary

more broadly than generic burglary. For example, a statute may include unlawful

entry into places other than buildings, such as automobiles and vending machines. 

If an overinclusive statute has a “divisible” structure -- defining multiple crimes by

listing one or more elements in the alternative -- the Court applies a “modified

categorical approach” that “permits [federal] sentencing courts to consult a limited

class of documents, such as indictments and jury instructions, to determine which

alternative formed the basis of the defendant’s prior conviction.” Descamps, 133 S.

Ct. at 2281. However, if the statute is overinclusive and not divisible, as in

Descamps, no prior conviction under that statute qualifies for the ACCA mandatory

minimum sentence enhancement. 

In Mathis, the Court resolved a circuit conflict regarding the meaning of the

term “divisible.” Under Mathis, when “faced with an alternatively phrased statute

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[we must first] determine whether its listed items are elements or means.” 136 S. Ct.

at 2256. “Elements” are “the things the prosecution must prove to sustain a

conviction.” Id. at 2248 (quotation omitted). “Means” are “[h]ow a given defendant

actually perpetrated the crime.” Id. at 2251. To distinguish between elements and

means, federal sentencing courts should look at “authoritative sources of state law”

such as “a state court decision [that] definitively answers the question,” or the

statute’s text. If necessary, the court may “peek” at the record of the prior conviction,

but only to determine if the statutory alternatives are elements or means. Id. at 2256-

57 (quotation omitted). If the statute lists alternative elements, it is divisible, and

therefore the prior conviction is subject to modified categorical analysis. Id. 

II.

In 2006, Lamb pleaded no contest to a felony charge that he violated Wis. Stat.

§ 943.10(1m)(a), a subsection of the Wisconsin burglary statute:

943.10(1m) 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 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 such home; or 

(f) A room within any of the above. 

A. Without question, § 943.10(1m), viewed as a whole, encompasses a broader

range of conduct than generic burglary as defined in Taylor, such as burglary of

railroad cars, ships, trucks, and motor homes. But viewing subsections (a) - (f) as a

whole, we agree with the District of Minnesota that Section (1m) is a divisible statute,

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indeed, “a textbook example of one with alternative elements.” United States v.

Jones, 2016 WL 4186929, at *3 (D. Minn. Aug. 8, 2016). 

We find support for this conclusion in Wisconsin precedent and practice. 

Consistent with the face of the statute, prior reported decisions all reflect that

defendants were convicted of violating a specific subsection of § 943.10(1m). See,

e.g., Anderson v. State, 223 N.W.2d 879, 882 (Wis. 1974) (subsection (d), locked

cargo trailer of truck); State v. Champlain, 744 N.W.2d 889, 899 (Wis. App. 2007)

(subsection (a), building); State v. Curtis, 424 N.W.2d 719, 719-20 (Wis. App. 1988)

(subsection (f), roominside a dwelling). Likewise, taking the permitted “peek” at the

record of Lamb’s prior conviction, we find that he was charged with and pleaded no

contest to “Burglary-Building or Dwelling,” a violation of “943.10(1m)(a).” 

Wisconsin’s model burglary jury instructionsreinforce thisinterpretation, explaining

that “[t]he model instruction is drafted for a case involving entry into a ‘building.’ 

It must be modified if entry involved any of the other places listed in § 943.10(1)(a)

through (f).” Wis. J.I.-Crim. No. 1421 n.2 (2001). The Supreme Court noted in

Mathis that “an indictment and jury instructions could indicate, by referencing one

alternative term to the exclusion of all others, that the statute contains a list of

elements, each one of which goes toward a separate crime.” 136 S. Ct. at 2257. 

In Mathis, the Court found that a Supreme Court of Iowa decision definitively

resolved the elements/means issue under state law; thus, the Court declared, the

question “is easy in this case.” 136 S. Ct. at 2256. Here, we have found no definitive

Supreme Court of Wisconsin decision. However, that Court decided in State v.

Baldwin, 304 N.W.2d 742, 747 (Wis. 1981), subsection (a) of Wis. Stat. § 940.225(2)

“differs significantly from the offenses described in paragraphs (b), (c), (d) and (e),

violation of each of which also constitutes second degree sexual assault.” This is

strong evidence the Wisconsin Supreme Court would conclude that unlawful entry

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into the various “places” described in subsections (a)-(f) of § 943.10(1m) are

elements of distinct burglary offenses.2

For these reasons, we conclude thatsubsections(a)-(f) of § 943.10(1m) list the

locational elements of divisible burglary offenses. Therefore, the district court

properly used the modified categorical approach to determine that Lamb’s prior

conviction was for a violation of subsection (a), burglary of a building or dwelling. 

See Jones, 2016 WL 4186929, at *3; cf. United States v. Gundy, 842 F.3d 1156,

1166-68 (11th Cir. 2016) (Georgia burglarystatute’s “alternative locational elements”

are overinclusive and divisible). 

B. On appeal, Lamb does not argue that the various subsections of

§ 943.10(1m) are indivisible. Rather, he argues (i) that subsection (a) itself is

indivisible; (ii) that subsection (a) is overinclusive because “dwelling” can include

places other than those encompassed by generic burglary; and (iii) that Descamps and

Mathis preclude use of the modified categorical approach to determine that he was

convicted of generic burglary of a building, rather than non-generic burglary of a

dwelling. In our prior opinion, we assumed that subsection (a) is overinclusive and

applied the modified categorical approach to determine that Lamb was convicted of

generic burglary. 638 F. App’x at 577. After Mathis, that analysis is unsound if

subsection (a) is both overinclusive and indivisible. 

Compare State v. Derango, 613 N.W.2d 833, 839 (Wis. 2000), where the

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Court ruled, without citing Baldwin, that Wis. Stat. § 948.07 “creates one offense

with multiple modes of commission” stated in six discrete subparagraphs. In

construing these other criminalstatutes, the Court in Baldwin and Derango dealt with

the important but distinct issue of jury unanimity. We know of no rational way to

decide which of these state court decisions should govern the elements/means

question that controls ACCA divisibility in this case. As Justice Breyer predicted:

“What was once a simple matter [has] produce[d] a time-consuming legal tangle.” 

Mathis, 136 S. Ct. at 2264 (Breyer, J., dissenting).

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The Seventh Circuit recently concluded, after the careful review of Wisconsin

law required by Mathis, “that subsection (a) lists alternative means rather than

elements and is therefore indivisible.” United States v. Edwards, 836 F.3d 831, 838

(7th Cir. 2016). Although the issue is not free from doubt, we will defer to the

Seventh Circuit’s greater familiarity with Wisconsin law and assume without

deciding that § 943.10(1m)(a) is indivisible under Mathis.

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If subsection (a) is indivisible under Mathis, as the Seventh Circuit concluded

in Edwards, we must apply the categorical approach to determine whether burglary

of a “building or dwelling” is generic burglary as defined in Taylor -- “unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent to

commit a crime.” 495 U.S. at 599 (emphasis added). Lamb argues that a conviction

under subsection (a) does not fall, categorically, within the definition of generic

burglary because “‘dwelling’ might encompass non-generic places such as vehicles

or curtilage.” The notion that “dwelling” in § 943.10(1m)(a) might be construed to

include vehicles is contrary to the statute because burglary of various vehicles is

encompassed by the separate crimes enumerated in subsections (b), (d) and (e). 

Lamb’s speculation that burglary of a “dwelling” might encompass burglary of

a non-structural curtilage is at odds with the Supreme Court’s categorical approach:

[T]o find that a state statute creates a crime outside the generic

definition of a listed crime in a federal statute requires more than the

application of legal imagination to a state statute’s language. It requires

a realistic probability, not a theoretical possibility, that the State would

apply its statute to conduct that falls outside the generic definition of a

crime.

Edwards went on to decide a distinct issue under the Sentencing Guidelines

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career offender provisions that is not before us and we do not consider.

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Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), quoted in James v. United

States, 550 U.S. 192, 208 (2007). Lamb has cited no case, and we have found none,

that extended § 943.10(1m)(a) to include burglary of a dwelling’s curtilage. Rather,

prior ACCA decisions have held that a defendant who violates this subsection of the

Wisconsin burglary statute is convicted of “generic burglary.” See Jones, 2016 WL

4186929, at *3 (subsection (a) “corresponds with the ‘building or structure’ element

of generic burglary”); United States v. Anderson, 249 F. App’x 337, 338 (5th Cir.

2007); United States v. Franklin, 1996 WL 536498, at *1 (7th Cir. 1996).

Section 943.10(1m) is part of the Trespass subchapter of the Wisconsin

Statutes Crimes Against Property chapter. Although “dwelling” is not defined in

§ 943.10, the term is defined in another section of this subchapter, entitled criminal

trespass to dwellings, as meaning “a structure or part of a structure that is used or

intended to be used as a home or residence.” Wis. Stat. § 943.14(1) (emphasis

added). In § 943.10(1m), burglary of a dwelling is linked in subsection (a) to

burglary of a building, a linkage that strongly suggests the word “dwelling” means

a particular type or subset of a “building or other structure,” consistent with the

express definition in § 943.14. As the Seventh Circuit reasoned in Edwards, “the

phrase ‘building or dwelling’ in subsection (a) is best understood as . . . providing

two examples of enclosed structures.” 836 F.3d at 837. We agree. Therefore, Lamb

was convicted of generic burglary and properly sentenced under the ACCA.

The judgment of the district court is affirmed. 

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