United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-3335

___________________________

United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Wakinyan Wakan McArthur,

lllllllllllllllllllll Defendant - Appellant.

___________________________

No. 14-3336

___________________________

United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

William Earl Morris,

lllllllllllllllllllll Defendant - Appellant.

___________________________

No. 14-3367

___________________________

United States of America,

lllllllllllllllllllll Plaintiff - Appellee,
v.

Anthony Francis Cree,

lllllllllllllllllllll Defendant - Appellant.

____________

Appeals from United States District Court 

for the District of Minnesota - St. Paul

____________

 Submitted: February 23, 2017

 Filed: February 23, 2017

____________

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

____________

COLLOTON, Circuit Judge.

A jury convicted Anthony Cree, William Morris, and Wakinyan McArthur of

criminal offenses stemming from their involvement with the Native Mob, a

Minnesota prison and street gang. All three appeal and argue that the district court

erred asto the sufficiency of the evidence, jury instructions, orsentencing. We affirm

in part, reverse in part, and remand for further proceedings. 

I.

A.

As each defendant challenges the sufficiency of the evidence in support of his

convictions, we recite the facts in the light most favorable to the verdicts. United

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States v. Paris, 816 F.3d 1037, 1038-39 (8th Cir. 2016). The Native Mob is a prison

and street gang that started in south Minneapolis in the mid-1990s. The Mob

developed a large presence in Minnesota and now has over two hundred members in

the state. Its members participate in a variety of criminal acts, including sales of

controlled substances and assaults on members of rival gangs. Through these

activities, Mob members seek to promote the gang’s reputation and to protect its

members and territory. 

In December 2009, McArthur called for a Mob meeting. At the meeting, Mob

members elected a new group of leadersin the gang’s hierarchicalstructure. Kenneth

Roberts was elected War Chief, and Christopher Wuori was named Cass Lake

Representative. Members also agreed to hold monthly statewide meetings. 

McArthur served as Chief of the Mob, the top leadership position, from 2010

until 2012. Under McArthur, members had easy access to firearms. Members could

request a firearm from another member, or they could retrieve a firearm from one of

several Mob associates who stored the weapons. The Mob also placed a premium on

retaining firearms. At one meeting, McArthur instructed Mob members to “cherish”

firearm ownership and to stop losing Mob weapons. 

McArthur and Wuori also increased the Mob’s drug trafficking operations. 

The two men “pooled their money together” to purchase cocaine and divided equally

the income derived fromtheir drug sales. Wuori obtained cocaine fromsuppliers, and

then converted the cocaine into crack cocaine. Wuori often completed the conversion

process in a residence that he and McArthur shared in Cass Lake, Minnesota. 

Members frequented the house and assisted McArthur and Wuori in obtaining,

packaging, and storing the drugs. McArthur and Wuori sold crack cocaine to several

members, who then resold the drugs to individuals throughout Minnesota. 

-3-
During McArthur’s term as Chief, he often encouraged members to harm rival

gang leaders and others who posed a threat to the gang, urging membersto be willing

to “go out and shoot-‘em up.” At one of the Mob’s meetings, McArthur told

members to attack an enemy of the Mob, instructing one member to shoot at the

enemy’s residence. McArthur also said that the Mob “need[ed] to whack” the leader

of an opposition gang, and that the leader’s death “would benefit us all.” 

Amos LaDuke, a former associate of the Mob, was the victim of a Mob attack. 

In early 2010, Mob members, including Wuori and Cree, concluded that LaDuke

“needed to be whacked.” Morris also participated in discussions about LaDuke, and

Wuori planned to give Morris a “gun . . . in case he seen Amos somewhere.” On

March 4, 2010, LaDuke was walking in Cass Lake when a car, owned by Cree,

approached. Cree, Morris, and two other people were in the vehicle. Morris got out

of the car, carrying a firearm as LaDuke started to run away. Morris fired several

rounds toward LaDuke, striking LaDuke three times before a former police officer

drove his truck between Morris and LaDuke and ended the encounter. Morris fled

the scene; authorities arrested him nearby shortly thereafter. Cree and the others in

the car drove away during the shooting, and Cree was apprehended in an unrelated

incident later that month. 

The Mob also went to great lengths to protect its drug distribution territory. 

Of particular concern to the Mob was Lawrence Daniels, a drug dealer who competed

against the gang for control of the Cass Lake drug trade. Starting in May 2010, Mob

memberstalked about harming Danielsin hopes of removing himfromtheir territory. 

During one conversation, McArthur and Wuori told Mob members Roberts, Emilio

Bunker, Jeremee Kraskey, Cory Oquist, and Pedro Sayers that they wanted to find

Daniels and “eliminate him by any means.” McArthur and Wuori decided to send

membersto “get . . . information out” of a known associate of Daniels about Daniels’s

whereabouts; from that excursion Mob members determined that Daniels was living

in Bemidji, Minnesota. 

-4-
Shortly after learning Daniels’s location, McArthur and other members,

including Wuori, Bunker, Kraskey, and Roberts, discussed “going to Bemidji . . . and

shooting” Daniels. On August 21, 2010, Wuori drove Bunker, Oquist, and Sayers to

Bemidji, where the three men shot into a home where they believed Daniels lived. 

They realized soon after, however, that Daniels had no connection to the residence. 

In the presence of McArthur and Roberts, the four members recounted their error. 

Days later, on August 24, some of the same members made a second attempt on

Daniels, shooting at the Raisch residence where Daniels was staying. 

The Mob continued to pursue Daniels. At the request of McArthur and Wuori,

Mob member Dale Pindegayosh agreed to participate in a home invasion to intimidate

Daniels. On March 28, 2011, Pindegayosh and three other members, armed with

firearms, broke into the home of Daniels’s father-in-law, John Wilke. Approximately

two months later, McArthur and Wuori requested that Pindegayosh rob the Wilke

home. Pindegayosh opted not to complete the crime, and that was the last evidence

concerning Mob activity toward Daniels. 

B.

Federal and state authorities began investigating the Native Mob as early as

2004. The investigation expanded after the LaDuke shooting. During the

investigation, members-turned-informants wore recording devices to four Mob

meetings in 2010 and 2011. Law enforcement officers conducted surveillance of

several Mob members and installed GPS devices on vehicles used by members. 

In January 2012, a grand jury charged Cree, Morris, McArthur, and others in

a multicount indictment. Cree, Morris, and McArthur proceeded to trial. After a sixweek trial, which included testimony from victims of Mob attacks, former Mob

members, and investigators, a jury convicted the men of several charges. After the

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trial, the district court denied the defendants’ motions for judgments of acquittal or,

in the alternative, new trials. 

Cree was convicted of conspiracy to participate in racketeering activity, see 18

U.S.C. § 1962(d), and conspiracy to distribute and possess with intent to distribute

controlled substances. See 21 U.S.C. §§ 841(a), (b), 846. He also was convicted of

four countsrelated to his involvement in the LaDuke shooting: conspiracy to use and

carry firearms during and in relation to a crime of violence, see 18 U.S.C. § 924(o),

attempted murder in aid of racketeering, see id. §§ 1959(a)(5), 2, assault with a

dangerous weapon in aid of racketeering, see id. §§ 1959(a)(3), 2, and use and

carrying of a firearm during and in relation to a crime of violence. See id.

§§ 924(c), 2. The district court sentenced Cree to 292 months’ imprisonment. 

Morris’s convictions stemmed from the LaDuke shooting. He was convicted

of attempted murder in aid of racketeering, assault with a dangerous weapon in aid

of racketeering, use and carrying of a firearm during and in relation to a crime of

violence, and possession of a firearm as a previously convicted felon. See id.

§ 922(g). Over Morris’s objection, the district court atsentencing ruled that Morris’s

three priorMinnesota third-degree burglary convictions constituted “violent felonies”

for purposes of the Armed Career Criminal Act. See id. § 924(e). Because the court

found that Morris had at least three previous convictions for violent felonies, he was

subject to a mandatory minimum 180-month sentence and a maximum of life on his

conviction for possession of a firearm as a previously convicted felon, Count 6. See

id. The court sentenced Morris to 360 months’ imprisonment on that count and to

420 months’ imprisonment total. 

McArthur was convicted of conspiracy to participate in racketeering activity,

conspiracy to use and carry firearms during and in relation to a crime of violence,

conspiracy to distribute and possess with intent to distribute controlled substances,

and distribution of a controlled substance. See 21 U.S.C. § 841(a), (b); 18 U.S.C. § 2. 

-6-
He also was convicted of two counts of use and carrying of a firearm during and in

relation to a crime of violence. See 18 U.S.C. §§ 924(c), 2. The first § 924(c)

conviction, Count 10, was based on McArthur’s involvement in the shooting at the

Raisch home, and the district court sentenced him to a mandatory 60-month term on

that charge. Id. § 924(c)(1). The second § 924(c) conviction, Count 11, related to

McArthur’s role in the Wilke home invasion. The court imposed a mandatory 300-

month consecutive sentence for that conviction. Id. In total, the district court

sentenced McArthur to 516 months’ imprisonment. 

II.

A.

Cree’s lone argument on appeal is that the district court erred in denying his

motion for judgment of acquittal because the government presented insufficient

evidence to sustain his convictions. We review the denial of a motion for judgment

of acquittal de novo, viewing the evidence in the light most favorable to the verdict. 

Paris, 816 F.3d at 1038-39. We will reverse only if no reasonable jury could have

found the defendant guilty beyond a reasonable doubt. Id.; see Fed. R. Crim. P. 29. 

Cree first disputes the evidence in support of his conviction for conspiracy to

participate in racketeering activity. See 18 U.S.C. § 1962(d). The government

charged Cree with conspiring to violate 18 U.S.C. § 1962(c), a substantive provision

of the Racketeer Influenced and Corrupt Organization (“RICO”) Act. Section

1962(c) prohibits “any person . . . associated with any enterprise engaged in . . .

interstate . . . commerce, to conduct or participate, directly or indirectly, in the

conduct of such enterprise’s affairs through a pattern of racketeering activity.” To

convict Cree under § 1962(d), the government was required to prove, inter alia, that

a RICO enterprise existed and that Cree agreed that he or a coconspirator would

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engage in a “pattern of racketeering activity.” Cree contests the evidence supporting

these two findings. 

A RICO enterprise includes “any union or group of individuals associated in

fact although not a legal entity.” 18 U.S.C. § 1961(4). An informal association of

individuals constitutes a RICO enterprise when it is “a continuing unit that functions

with a common purpose.” Boyle v. United States, 556 U.S. 938, 946, 948 (2009); see

also United States v. Turkette, 452 U.S. 576, 583 (1981). Thus, an enterprise has “at

least three structural features: a purpose, relationships among those associated with

the enterprise, and longevity sufficient to permit these associates to pursue the

enterprise’s purpose.” Boyle, 556 U.S. at 946. 

Cree argues that the Mob was not a RICO enterprise. Members, according to

Cree, had no shared purpose and were a “loose assembly of acquaintances,”

committing crimes randomly and in their own interests. 

Trial testimony, however, provided ample support for the jury’s finding that the

Mob constituted a RICO enterprise. The Mob had several purposes: Members

worked to promote the Mob, develop its reputation, and protect its territory and

members. At one meeting, McArthur reminded those in attendance that “[t]his ain’t

about me. It ain’t about no individual person, man. It’s about us all.” For nearly two

decades, the Mob operated as a coherent unit. Many members joined the Mob as

teenagers and were in the gang for several years. The Mob had meetings, colors,

signals, and symbols. Both written and unwritten rules governed members’ behavior. 

When a member violated one of the rules, Mob leaders meted out punishment, often

in the form of a physical assault at the hands of other members. The Mob also used

a hierarchical leadership structure, and when one leader stepped down, another

member was selected for the role. 

-8-
Sufficient evidence also supported the jury’s finding that Cree agreed that he

or a coconspirator would engage in a “pattern of racketeering activity.” Section

1961(1) labels dozens of federal and state offenses as racketeering activities,

including “any act or threat involving murder . . . or dealing in a controlled

substance . . . , which is chargeable under State law and punishable by imprisonment

for more than one year.” A “‘pattern of racketeering activity’ requires at least two

acts of racketeering activity, . . . the last of which occurred within ten years . . . after

the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5). 

To establish a “pattern of racketeering activity,” the government also must

prove two constituent elements: that the predicate acts of racketeering are related,

and “that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v.

Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989). “Criminal acts are sufficiently

related . . . if they had the same or similar purposes, results, participants, victims or

methods of commission, or if they were otherwise ‘interrelated by distinguishing

characteristics’ as opposed to being ‘isolated events.’” United States v. Hively, 437

F.3d 752, 761-62 (8th Cir. 2006) (quoting H.J. Inc., 492 U.S. at 240). 

Continuity of racketeering activity, “or its threat, simpliciter,” is a “temporal

concept.” H.J. Inc., 492 U.S. at 241-42. One manner of proving continuity is openended continuity, which asks whether “the related predicates themselves involve a

distinct threat of long-term racketeering activity, either implicit or explicit.” Id. at

242-43. Open-ended continuity may be established by showing that the racketeering

acts “include a specific threat of repetition extending indefinitely into the future.” Id.

Cree contends that the racketeering activity of which he was convicted, the

chargesrelating to the shooting of LaDuke and drug distribution, were neither related

to one another nor sufficient to show a threat of continued criminal activity. On this

view, he thus never agreed to participate in a “pattern of racketeering activity.” 

-9-
Cree’s arguments are unpersuasive. Evidence supported the jury’s finding that

the LaDuke shooting and Cree’s drug distribution amounted to a pattern of

racketeering activity. The acts were related, in that Cree, Wuori, and other Mob

members participated in both crimes, and the acts represented a consistent desire to

further the Mob’s activities. See United States v. Darden, 70 F.3d 1507, 1525 (8th

Cir. 1995). Because these two acts “by their very nature threaten repetition,” the jury

also could find open-ended continuity. Hively, 437 F.3d at 761. Mob members were

known for assaulting competing drug dealers or others believed to pose a threat to the

Mob’s interests. It is likely that members would, and testimony suggested they did

in fact, continue these tactics after the LaDuke shooting and Cree’s arrest. See United

States v. Delgado, 401 F.3d 290, 298 (5th Cir. 2005); United States v. Diaz, 176 F.3d

52, 93-94 (2d Cir. 1999). A reasonable jury, therefore, could convict Cree of

conspiracy to participate in racketeering activity. 

Cree next complains that there was insufficient evidence to convict him of

conspiring to distribute and possess with intent to distribute controlled substances.

But sufficient evidence supported this conviction as well. Testimony showed that

Mob members were engaged in a drug conspiracy and that Cree knowingly

participated in the conspiracy. See United States v. Ramirez, 350 F.3d 780, 783-85

(8th Cir. 2003). Mob members testified that Cree was present when Wuori cooked

crack cocaine, and that Cree received distribution quantities of crack cocaine from

Wuori on consignment that Cree then sold in the Cass Lake area. It was for the jury

to judge the truthfulness of these witnesses, and witness credibility is virtually

unreviewable on appeal. A reasonable jury could convict Cree of the charge based

on this evidence.

Cree’s last argument is that the evidence did not demonstrate his “complicity”

in the LaDuke shooting, a finding necessary for his four convictions relating to that

incident. Cree insists that he did not know Morris was going to shoot LaDuke. The

record, however, shows that Cree was aware of the impending attack on LaDuke and

-10-
assisted Morris in completing the crime. Cree discussed harming LaDuke with

Morris and other members, and he was present when Wuori agreed to provide a gun

to Morris in case Morris encountered LaDuke. And LaDuke testified that about

fifteen minutes before the shooting, he twice observedCree staring at himasCree and

another man drove past his location. It was the jury’s prerogative to determine

LaDuke’s credibility.

Cree’s recounting of the day of the attack to fellow members further

demonstrates his knowing participation in the incident. Cree told members that he

had found locationsthat LaDuke frequented and saw LaDuke “slippin’” (i.e., leaving

himself vulnerable to attack) in one such location. Cree then retrieved a firearm and

picked up Morris to “take care” of LaDuke. On this record, a reasonable jury could

convict Cree of the charges relating to the LaDuke attack, and the district court

properly denied Cree’s motion for judgment of acquittal. 

Cree also argues that the district court should have granted his motion for a

new trial because the verdict was against the weight of the evidence. In the district

court, however, Cree did not move for a new trial based on the weight of the

evidence; as a result, his claim is procedurally barred on appeal, and we need not

consider it. United States v. Flynn, 196 F.3d 927, 932 (8th Cir. 1999). We thus

affirm the judgment of the district court as to Cree.

B.

Morris raises three claims of error. Morris first avers that the district court

wrongly denied his motion for judgment of acquittal because there was insufficient

evidence to convict him of either attempted murder in aid of racketeering or assault

with a dangerous weapon in aid of racketeering. See 18 U.S.C. §§ 1959(a), 2. Morris

does not dispute the existence of a RICO enterprise engaged in racketeering activity

that affected interstate commerce or that he assaulted and attempted to murder

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LaDuke with a firearm. Morris instead alleges that the government did not

demonstrate that he attacked LaDuke for a purpose listed in the statute—in this case,

to maintain or increase his position in the Mob—because there was not proof beyond

a reasonable doubt that he was, in fact, a Mob member. See id. § 1959(a).

The evidence was sufficient for the jury to conclude that Morris was a Mob

member and that he shot LaDuke to maintain or increase his status in the gang. 

Morris discussed shooting LaDuke with other members, and some of those members

later assisted Morris in carrying out the attack. A former member testified that in

2010, Wuori introduced him to Morris “as if [Morris] was Fam,” a term members

used to denote membership in the gang. While some members may not have been

aware of Morris, witnesses attested that members often did not know everyone in the

Mob due to the Mob’s large membership. Morris’s communications on the day of the

shooting and during his subsequent incarceration further support a finding that he was

a Mob member. Near the time of the shooting, Morris used a cellular telephone to

call a telephone number at which both McArthur and Wuori were known to receive

calls. While in prison, Morris contacted several Mob members via telephone and

mail, including Cree, McArthur, and Wuori, and represented himself as a member of

the Mob. And it is undisputed that members increased their standing in the gang by

committing violent crimes. Thus, the jury reasonably decided that Morris attacked

LaDuke to maintain or increase his position in the Mob. 

Morris next asserts that the jury instructions on the § 1959(a) charges

constructively amended the indictment. An indictment is constructively amended

when the government or court alters the essential elements of an offense set forth in

the indictment. United States v. Mariano, 729 F.3d 874, 880 (8th Cir. 2013). The

indictment here charged that Morris attacked LaDuke “for the purpose of maintaining

and increasing” his position in the Native Mob. Morris complains that the district

court’s instruction on that element did not match the indictment, because it asked

whether Morris assaulted LaDuke “to gain entrance to, or to maintain, or to increase

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his position” in the Mob. But Morris requested the precise jury instruction used by

the district court, and he has therefore waived any claim of error based on an alleged

constructive amendment. Id. at 880-82; Petschl v. United States, 369 F.2d 769, 774

(8th Cir. 1966).

Morris’s last argument is that the district court erred in ruling that his prior

third-degree burglary convictions constituted violent felonies under theArmedCareer

Criminal Act. Morris was convicted for possession of a firearm as a previously

convicted felon. See 18 U.S.C. § 922(g). This offense carries a maximum sentence

of 120 months’ imprisonment. Id. § 924(a)(2). The Armed Career Criminal Act,

however, provides for an enhanced sentence of 180 months to life in prison on a

§ 922(g) conviction, if the defendant “has three previous convictions . . . for a violent

felony.” See id. § 924(e)(1). Over Morris’s objection, the district court found that

Morris had four prior “violent felony” convictions, three of which were for thirddegree burglary in Minnesota, and that he wassubject to the enhancement. The court

thus imposed a 360-month sentence for Morris’s violation of § 922(g). 

Morris’s initial position on appeal wasthat the Minnesota third-degree burglary

statute, Minn. Stat. Ann. § 609.582, subd. 3, sets forth multiple, alternative versions

of the crime, that at least one of the statute’s alternatives is not a violent felony, and

that the district court should have applied the “modified categorical approach” to

determine whether his convictions were violent felonies. Morris then revised his

position in light of Mathis v. United States, 136 S. Ct. 2243 (2016), which was

decided after this case was submitted. He now urges that the Minnesota statute is

indivisible and that the offense is not a violent felony. The government agrees that

the statute is indivisible but argues that third-degree burglary qualifies as generic

“burglary” under § 924(e). We conclude that Morris is correct.

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 The Minnesota third-degree burglary statute provides that: 

Whoever enters a building without consent and with intent to steal or

commit any felony or gross misdemeanor while in the building, or enters

a building without consent and steals or commits a felony or gross

misdemeanor while in the building, . . . commits burglary in the third

degree and may be sentenced to imprisonment for not more than five

years . . . .

Minn. Stat. Ann. § 609.582, subd. 3. “Enters a building without consent” includes

either entering or remaining in a building without the owner’s consent. Id. § 609.581,

subd. 4. 

The Armed Career Criminal Act defines “violent felony” to include burglary

that is “punishable by imprisonment for a term exceeding one year.” 18 U.S.C.

§ 924(e)(2)(B). To determine whether a prior burglary conviction is a violent felony,

we typically apply the “categorical approach.” Mathis v. United States, 136 S. Ct.

2243, 2247-48 (2016). In that analysis, we compare the elements of the statute under

which the defendant was convicted with the “generic” definition of burglary set forth

in Taylor v. United States, 495 U.S. 575, 598-99 (1990). See Descamps v. United

States, 133 S. Ct. 2276, 2283 (2013). Only when the statute has the same or narrower

elements as the generic crime does the prior conviction count as a violent felony. Id.

But if the statute is divisible, setting forth “multiple, alternative versions of the

crime,” and not all of the alternativessatisfy the generic definition, then we apply the

“modified categorical approach” to decide which of the alternatives was the basis for

the conviction. Id. at 2283-86. 

Mathis explained that when a statute of conviction is phrased alternatively, the

court must determine whether the listed alternatives are elements of different crimes

or factual means of satisfying a single element of a single crime. If the alternatives

are “means,” then the statute sets out a single set of elements to define a single crime,

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and the court must apply the categorical approach to determine whether an offense

of conviction qualifies as a violent felony. 

Here, Mathis requires us to treat the alternativesin the Minnesota third-degree

burglary statute as “means” rather than “elements.” The most helpful Minnesota

court decision, although not precedential, holds that jury unanimity is not required as

to one prong or the other of the burglary statute, thus suggesting that the alternatives

are means rather than elements. State v. Gonzales, No. A15-0975, 2016 WL

3222795, at *2-3 (Minn. Ct. App. June 13, 2016). Morris’s charging documents

underlying the prior convictions alleged both alternatives of third-degree burglary,

again suggesting they are means rather than elements. Mathis, 136 S. Ct. at 2257. 

The statute on its face does not provide helpful guidance; there is, for example, a

uniformpunishment for commission ofthird-degree burglary. Accordingly, we agree

with the parties that the Minnesota third-degree burglary statute should be treated as

indivisible. We therefore must address whether the elements of the offense are

broader than those of generic burglary under Taylor.

The government argues that we have ruled already that convictions under

§ 609.582, subd. 3, qualify as violent felonies. But the cases on which the

government relies are inapposite. The decision in United States v. Sonczalla, 561

F.3d 842, 846 (8th Cir. 2009), concerned an earlier version of the third-degree

burglary statute, enacted in 1986, that did not contain the second alternative in the

current statute. See Minn. Stat. Ann. § 609.582, subd. 3 (1986). United States v.

Constantine, 674 F.3d 985, 990 (8th Cir. 2012), did hold that § 609.582, subd. 3,

“qualifies as a ‘violent felony’ under 18 U.S.C. § 924(e)(2)(B)(ii).” But Constantine

cited Sonczalla, which involved the 1986 statute and thus addressed only one of the

two statutory alternatives. Constantine also relied on precedent suggesting that

burglary convictions qualified as violent felonies under the “residual clause” of

§ 924(e)(2)(B)(ii), id., but the Supreme Court later declared the residual clause

unconstitutional. Johnson v. United States, 135 S. Ct. 2551, 2557 (2015). Because

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Constantine did not specify that a conviction under both of the alternatives in the

current version of the Minnesota third-degree burglary statute qualified as a generic

burglary under Taylor, we do not consider it controlling on the question.

The first alternative of § 609.582, subd. 3, forbids “enter[ing] a building

without consent and with intent to steal or commit any felony or gross misdemeanor”

while inside. Taylor defines “generic” burglary as “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. Because the first alternative of the Minnesota statute contains all of

the elements in the Taylor definition, convictions based on that alternative count as

violent felonies.

The second alternative of the Minnesota statute provides that “whoever enters

a building without consent and steals or commits a felony or gross misdemeanor”

while inside commits third-degree burglary. That portion of the statute, however,

does not include the element of “intent to commit a crime” at the time of the unlawful

entry or remaining. See State v. Benedict, No. A13-1324, 2014 WL 2921869, at *2

(Minn. Ct. App. June 30, 2014). Whether the second alternative qualifies as a violent

felony thus depends on when, under the definition of generic burglary, an offender

must form the intent to commit a crime within the building.

The government contends that the generic definition of burglary is broad

enough to encompass the second alternative under § 609.582, subd. 3. Taylor said

that generic burglary includes “remaining in” a building with intent to commit a

crime. 495 U.S. at 598. The government argues that a person convicted under the

second alternative for entering a building without consent and then later stealing or

committing a felony or gross misdemeanor while in the building meets the “remaining

in” aspect of Taylor’s definition. The offender necessarily has “remained in” the

building with intent to commit a crime, the argument goes, because he must have

developed the requisite intent at some point while “remaining in” the building.

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We reject this reading of Taylor. Taylor provides that burglary occurs when

an offender enters or remains in a building or structure “with intent to commit a

crime.” Id. (emphasis added). The most natural reading of Taylor and the sources on

which it relied show 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. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law

§ 8.13(b), (e), at 468, 473-74 & n.101 (1986) (noting that the “intent to commit a

crime within need only exist at the time the defendant unlawfully remained within”);

Model Penal Code § 221.1, cmt. (1), (3) (Am. Law Inst. 1980) (referencing the

“purpose that accompanies the entry,” and “the purpose that must accompany the

intrusion”). 

The act of “remaining in” a building, for purposes of generic burglary, is not

a continuous undertaking. 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. See LaFave & Scott, supra, § 8.13(b), (e), at 467-68 & n.47,

473-75 (distinguishing between burglary statutes that require intent to be

contemporaneous with the unlawful entry or remaining and those providing “that

actual commission of the offense within is an alternative basis for conviction”). If the

defendant does not have the requisite intent at the moment he “remains,” then he has

not committed the crime of generic burglary. The government’s reading of Taylor

would render the “unlawful entry” element of generic burglary superfluous, because

every unlawful entry with intent would become “remaining in” with intent as soon as

the perpetrator enters. Accord United States v. Herrera-Montes, 490 F.3d 390, 392

& n.1 (5th Cir. 2007); United States v. Bernel-Aveja, 844 F.3d 206, 215-19 (5th Cir.

2016) (Higginbotham, J., concurring); United States v. Bonilla, 687 F.3d 188, 196-98

(4th Cir. 2012) (Traxler, C.J., dissenting); but see id. at 192-94 (majority opinion);

Bernel-Aveja, 844 F.3d at 219-45 (Owen, J., concurring); cf. United States v. Priddy,

808 F.3d 676, 685 (6th Cir. 2015); compare also United States v. Reina-Rodriguez,

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468 F.3d 1147, 1155-56 (9th Cir. 2006), with United States v. Bonat, 106 F.3d 1472,

1475-76 (9th Cir. 1997).*

Because a conviction under the second alternative of § 609.582, subd. 3, does

not require that the defendant have formed the “intent to commit a crime” at the time

of the nonconsensual entry or remaining in, it does not satisfy the generic definition

of burglary in Taylor. As a result, the indivisible statute is broader than generic

burglary, and Morris’s third-degree burglary convictions do not qualify as violent

felonies. Accordingly, we vacate Morris’s sentence and remand for further

proceedings.

C.

1.

McArthur raises three claims of error on appeal. All three involve his two

convictions for aiding and abetting the use or carrying of a firearm during and in

relation to, or the possession of a firearm in furtherance of, a crime of violence. See

18 U.S.C. §§ 924(c), 2. He first argues that the district court violated his rights under

theDouble JeopardyClause by imposing consecutive sentencesfor those convictions,

because the convictions arose from one predicate offense, conspiracy to participate

in a pattern of racketeering activity. Although our circuit precedent rejects this claim,

see, e.g., Hamberg v. United States, 675 F.3d 1170, 1172-73 (8th Cir. 2012); United

States v. Lucas, 932 F.2d 1210, 1222-23 (8th Cir. 1991), the government nonetheless

asks us to vacate one of McArthur’s convictions based on an internal Justice

Neither United States v. Pledge, 821 F.3d 1035, 1037 (8th Cir. 2016), nor

*

United States v. Eason, 643 F.3d 622, 623 (8th Cir. 2011), addressed the question of

contemporaneous intent. Those decisions thus do not establish circuit precedent on

the issue, and the government does not invoke them. See Passmore v. Astrue, 533

F.3d 658, 660-61 (8th Cir. 2008).

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Department policy to refrain from pursuing multiple § 924(c) charges in this

circumstance. The relevant policy provides that each § 924(c) charge in an

indictment should be based on a separate predicate offense. See Brief for the United

States in Opposition to Petition for Writ of Certiorari, Carter v. United States, 537

U.S. 1187 (2002), (No. 02-655), 2002 WL 32133544, at *8. The United States

Attorney evidently charged McArthur in violation of Department policy and now

requests that we vacate one of the § 924(c) convictions so that the government may

belatedly comply with the policy. 

The Supreme Court addressed a comparable situation in Rinaldi v. United

States, 434 U.S. 22, 29 (1977) (per curiam), where the government prosecuted a

defendant in violation of its Petite policy against multiple prosecutions by separate

sovereigns for the same act. See Petite v. United States, 361 U.S. 529, 530-31 (1960)

(per curiam). Although the conviction did not violate the Double Jeopardy Clause,

see Abbate v. United States, 359 U.S. 187 (1959), the Court held that the district court

should have granted the government’s belated motion to dismiss the indictment. The

Court concluded that the “overriding purpose of the Petite policy is to protect the

individual from any unfairness associated with needless multiple prosecutions,” and

that the defendant “should receive the benefit of the policy whenever its application

is urged by the Government.” Rinaldi, 434 U.S. at 31. The policy here, although not

premised on the “dualsovereignty principle inherent in our federalsystem,” doesseek

“to protect interests . . . embraced by the Double Jeopardy Clause.” Id. at 29. The

Justice Department has opted, as a matter of policy, to follow the view of other

circuits that “the imposition of consecutive sentences under subsection 924(c) for

using multiple weapons during a single crime of violence would impinge upon

fundamental ‘double jeopardy’ principles.” United States v. PenÞa-Lora, 225 F.3d 17,

32 (1st Cir. 2000); see U.S. Dep’t of Justice, Office of Legal Education, Federal

Firearms Manual § 4.25, at 192-93 (3d ed. 2001) (attached as Appendix B to the

Brief for the United States in Opposition to Petition for Writ of Certiorari in Carter). 

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We see no material distinction between this case and Rinaldi, and therefore grant the

government’s request to vacate McArthur’s conviction on Count 11. 

McArthur next contendsthat the jury instructions astoCount 10, the remaining

§ 924(c) charge, did not comply with Rosemond v. United States, 134 S. Ct. 1240

(2014). This charge concerned the shooting at the Raisch residence. A person who

“aids, abets, counsels, commands, induces or procures” the commission of a federal

offense “is punishable as a principal.” 18 U.S.C. § 2. To convict a defendant of

aiding and abetting a § 924(c) offense, the government must prove: (1) that a

predicate crime of violence or drug trafficking was committed; (2) that a gun was

used in a prohibited manner during the predicate offense; (3) that the defendant

facilitated the firearm use, the predicate crime, or both; and (4) that the defendant had

advance knowledge that one of his confederates would use or carry a gun during and

in relation to the commission of the predicate crime, or would possess a gun in

furtherance of the predicate offense. Rosemond, 134 S. Ct. at 1245, 1247, 1248-51.

Although the Supreme Court decided Rosemond after McArthur’s trial, we

apply the case retroactively to cases on direct review. Johnson v. United States, 520

U.S. 461, 467 (1997). But because McArthur did not object in the district court to the

instructions he now challenges, we review only for plain error. Id. at 466. To obtain

relief, McArthur must show that there was an error that was obvious, rather than

subject to reasonable dispute, and that the error affected his substantial rights and

seriously affected the fairness, integrity, or public reputation of judicial proceedings. 

Id. at 466-68; see Puckett v. United States, 556 U.S. 129, 135 (2009).

McArthur complains that the district court’s instructions for the charges of

aiding and abetting a violation of § 924(c) did not require the jury to find that he had

advance knowledge that a confederate would use or carry a firearm during the Raisch

shooting. The elementsinstruction for aiding and abetting Count 10 required the jury

to find beyond a reasonable doubt that McArthur “must . . . have known thatsomeone

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was going to knowingly use or carry a firearm during or in relation to, or possess a

firearm in furtherance of, the crime of conspiracy to participate in a racketeering

enterprise.” McArthur argues that the instruction permitted the jury to convict him

based on a finding that he had advance knowledge that a coconspirator would use,

carry, or possess a firearm atsome point during the conspiracy in general, as opposed

to advance knowledge that a coconspirator would use, carry, or possess a firearm

during the attack on the Raisch home.

The government does not address McArthur’s premise that what he refers to

as “general” knowledge is insufficient to support a § 924(c) conviction under an

aiding and abetting theory of liability. Rosemond says that the defendant must know

in advance that a confederate will carry a gun during commission of the predicate

crime. 134 S. Ct. at 1245, 1249-51. The predicate crime here was conspiracy to

participate in racketeering activity, not a substantive offense ofshooting at the Raisch

home. See United States v. Hinds, 435 F. App’x 832, 835-36 (11th Cir. 2011) (per

curiam) (upholding a conviction for aiding and abetting possession of firearms in

furtherance of a drug conspiracy where the defendant provided firearms to his

coconspirators for their use in furtherance of the conspiracy); cf. Pinkerton v. United

States, 328 U.S. 640, 645-48 (1946); United States v. Bailey, 235 F.3d 1069, 1074

(8th Cir. 2000). But the government defendsthe conviction solely on the ground that

the jury instructions adequately elicited a finding on whether McArthur had advance

knowledge that a confederate would use a firearm in the Raisch shooting. Because

we deem that avenue sufficient to sustain the judgment, we need not address whether

McArthur’s premise is correct.

Assuming, therefore, that Rosemond required McArthur to have advance

knowledge that a firearm would be used during the Raisch shooting, the jury

instructions about which McArthur complains were not plainly erroneous. The jury

wasinstructed that to convict McArthur for aiding and abetting in the commission of

Count 10, McArthur “must . . . have known thatsomeone was going to knowingly use

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and carry a firearm during and in relation to, or possess a firearm in furtherance of,

the crime of conspiracy to participate in a racketeering enterprise.” The jury knew,

however, that Count 10 charged that “on or about August 24, 2010, Defendant

McArthur . . . knowingly used and carried a firearm during and in relation to, and

possessed a firearmin furtherance of, a crime of violence.” The instruction listing the

elements required by § 924(c) likewise directed the jury that a necessary element of

the charge was that “on or about August 24, 2010, the defendant, or another person

aided and abetted by the defendant, did knowingly use or carry a firearm during and

in relation to, or possess a firearm in furtherance of, that crime.” And the jury was

told that it was considering whether McArthur “aided and abetted in the commission

of Count 10.” Given that the references to the date of the Raisch shooting focused

the jury on the specific firearm use on which Count 10 was premised, there is at least

a reasonable dispute about whether the instructions, taken as a whole, fairly and

adequately submitted to the jury the “advance knowledge” question. Any error isthus

not plain.

We also conclude that the district court did not err in denying McArthur’s

motion for judgment of acquittal on Count 10. There was evidence that McArthur

wanted to “eliminate [Daniels] by any means,” and that he was part of the group that

decided to find Daniels and “shoot him.” Members involved in those conversations

then mistakenly shot into a home in which they believed Daniels was staying; they

informed McArthur of the mishap. Days later, members attacked the Raisch

residence with Daniels as the target. Based on this evidence, along with testimony

concerning the Mob’s propensity for firearms and McArthur’s decision-making

authority as Chief, a reasonable jury could have found him guilty on Count 10.

2.

Having concluded that one of McArthur’s convictions should be vacated on the

government’s request, we must determine the appropriate remedy. The district court

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sentenced McArthur to a total of 516 months’ imprisonment, but 300 months were

attributable to the second § 924(c) conviction that will be vacated. The government

contendsthat under the “sentencing package” doctrine, we should vacate McArthur’s

sentences on all of his convictions and remand for resentencing. McArthur responds

that the court should vacate only the sentence for Count 11, and remand with

instructions to leave the sentences on his remaining convictions unchanged. Under

that approach, McArthur’s total sentence would be reduced from 516 months to 216

months’ imprisonment. 

Under the sentencing package doctrine, we “may vacate the entire sentence on

all counts so that, on remand, the trial court can reconfigure the sentencing plan to

ensure that it remains adequate to satisfy the sentencing factors in 18 U.S.C.

§ 3553(a).” Greenlaw v. United States, 554 U.S. 237, 253 (2008); see United States

v. Bruguier, 735 F.3d 754, 764 (8th Cir. 2013) (en banc). The doctrine often arises

in casesinvolving “multicount indictments and a successful attack by a defendant on

some but not all of the counts of conviction.” Greenlaw, 554 U.S. at 253.

This is an appropriate case for application of the sentencing package doctrine. 

McArthur was charged in a multicount indictment and convicted of several crimes. 

He has successfully challenged one of those convictions on appeal. When the district

court determined McArthur’s sentence on the remaining counts, the court acted on

the assumption that he would receive a 300-month consecutive sentence for Count 11.

With that sentence vacated, the district court should have an opportunity to decide

whether a term of 216 months’ imprisonment is sufficient to comply with the

purposes set forth in 18 U.S.C. § 3553(a)(2). See United States v. Cureton, 739 F.3d

1032, 1045 (7th Cir. 2014). 

McArthur claims that the sentencing package doctrine applies only when the

vacatur of one conviction permits the district court at resentencing to apply a new

enhancement under the advisory sentencing guidelines. See Gardiner v. United

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States, 114 F.3d 734, 736 (8th Cir. 1997). But Gardiner simply mentioned that

possibility as one factor favoring resentencing, and our precedent should not be read

as narrowly as McArthur suggests. In Bruguier, for example, this court vacated all

of the defendant’s sentences and remanded for resentencing without purporting to

satisfy the limitation that McArthur proposes. 735 F.3d at 764. McArthur also

argues that the district court may not alter his sentences on his remaining convictions

without violating the Double Jeopardy Clause. A defendant, however, has no

expectation of finality in his sentence until an appeal is concluded, and the Double

Jeopardy Clause “does not bar resentencing on all counts to carry out the sentencing

judge’s original intent.” United States v. Evans, 314 F.3d 329, 333 (8th Cir. 2002).

* * *

For the foregoing reasons, we affirm the judgment as to Cree. We affirm

Morris’s convictions but vacate his sentence and remand for further proceedings. We

vacate McArthur’s conviction on Count 11, affirm his remaining convictions, vacate

McArthur’s entire sentence, and remand for resentencing.

______________________________

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