Dean Guenther v. Matthew Marske ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3409
DEAN GUENTHER,
Petitioner-Appellant,
v.
MATTHEW MARSKE, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 17-cv-231 — Barbara B. Crabb, Judge.
____________________
ARGUED SEPTEMBER 30, 2020 — DECIDED MAY 12, 2021
____________________
Before SYKES, Chief Judge, and WOOD and BRENNAN,
Circuit Judges.
SYKES, Chief Judge. In 2005 Dean Guenther was convicted
of a federal firearms crime in Minnesota and was sentenced
as an armed career criminal based in part on his prior
Minnesota burglary convictions. His direct appeal failed in
the Eighth Circuit, as did his petition for collateral review
under 28 U.S.C. § 2255. He is currently serving his lengthy
sentence in a federal prison in Wisconsin. In 2017 Guenther
2 No. 17-3409
sought habeas relief under 28 U.S.C. § 2241 in the Western
District of Wisconsin. Relying on Mathis v. United States,
136 S. Ct. 2243 (2016), and United States v. McArthur, 850 F.3d
925 (8th Cir. 2017), he argued that his sentence is unlawful
because his Minnesota burglary convictions are not “violent
felonies” under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). The district judge denied the petition.
We reverse. A § 2255 motion in the sentencing court is
normally the exclusive method to collaterally attack a federal
sentence, but the “saving clause” in § 2255(e) provides a
limited exception. 1 The clause permits a prisoner to seek
§ 2241 habeas relief in the district where he is confined if
“the remedy by motion is inadequate or ineffective to test
the legality of his detention.” § 2255(e). We have construed
the saving clause to preserve a path for § 2241 relief in a
narrow set of circumstances—namely, when the prisoner
relies on an intervening statutory decision announcing a
new, retroactive rule that could not have been invoked in his
first § 2255 motion and the error is serious enough to amount
to a miscarriage of justice. See Chazen v. Marske, 938 F.3d 851,
856 (7th Cir. 2019) (synthesizing the doctrine).
Our decision in Chazen is analogous in all material re-
spects and makes clear that Guenther has satisfied most of
the requirements for the saving-clause gateway to § 2241.
The only question left unanswered by Chazen is whether
Guenther’s ACCA-enhanced sentence amounts to a miscar-
1 We usually refer to § 2255(e) as the “savings clause,” but the leading
authority on legal style recommends “saving clause” as the more precise
term. Saving Clause, GARNER’S DICTIONARY OF LEGAL USAGE (3d ed. 2011);
see also McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076,
1081–82 (11th Cir. 2017) (en banc).
No. 17-3409 3
riage of justice. That question folds into the merits of wheth-
er Guenther’s Minnesota burglary convictions are ACCA
predicates.
The parties disagree on whether the answer to this ques-
tion should come from the law of our circuit (the circuit of
confinement) or the Eighth Circuit (the circuit of conviction).
We declined to settle the choice-of-law debate in Chazen
because the government argued in the district court that the
law of the circuit of confinement—this circuit—should
control. Id. at 860. That position, if accepted, meant no relief.
Although the Eighth Circuit had held in McArthur that
Minnesota burglary is not an ACCA predicate, our circuit
had not addressed the question. By the time Chazen reached
this court, however, the tables had turned. McArthur’s validi-
ty had become clouded, and we had broadly concluded in
Van Cannon v. United States, 890 F.3d 656, 665 (7th Cir. 2018),
that Minnesota burglary is not an ACCA predicate. Chazen,
938 F.3d at 860.
In Chazen we held the government to the position it took
in the district court and applied the law of this circuit. Id. at
860–63. We follow the same approach here. Under
Van Cannon, Guenther’s Minnesota burglary convictions are
not ACCA predicates. We remand with instructions to grant
the habeas petition.
I. Background
In May 2005 a federal jury in the District of Minnesota
convicted Guenther of possessing a firearm as a felon in
violation of 18 U.S.C. § 922(g)(1). The offense usually carries
a maximum sentence of ten years in prison, id. § 924(a)(2),
but the ACCA increases the penalty to a 15-year minimum
4 No. 17-3409
and a maximum of life in prison if the defendant has three
prior convictions for a “violent felony,” id. § 924(e)(1).
Guenther’s presentence report (“PSR”) identified four
possible ACCA predicates: two convictions for first-degree
burglary (in 1990 and 1992), one for second-degree burglary
(in 1986), and one for kidnapping (in 1990), all under
Minnesota law.
The ACCA defines “violent felony” as any federal or
state crime punishable by a prison term exceeding one year
that “has as an element the use, attempted use, or threatened
use of physical force against the person of another,” id.
§ 924(e)(2)(B)(i) (the “elements clause”); or “is burglary,
arson, or extortion,” id. § 924(e)(2)(B)(ii) (the “enumerated
offenses clause”; or “otherwise involves conduct that pre-
sents a serious potential risk of physical injury to another,”
id. (the “residual clause”). At the time of sentencing,
Guenther’s burglary convictions qualified as ACCA predi-
cates under the enumerated-offenses clause, and his kidnap-
ping conviction qualified under the residual clause.2 The
district judge applied the enhanced penalties under the
ACCA and imposed a prison term of 327 months, the top of
the range under the Sentencing Guidelines.
The Eighth Circuit affirmed on direct appeal. In 2008
Guenther filed a pro se motion seeking collateral relief under
§ 2255, raising a claim of ineffective assistance of counsel and
also challenging his ACCA-enhanced sentence. The judge
denied the motion and declined to issue a certificate of
appealability. The Eighth Circuit likewise declined to certify
the case for appeal.
2 Each of these crimes is punishable by a prison term exceeding one year.
No. 17-3409 5
The legal landscape shifted following Guenther’s § 2255
motion. As we explained in Chazen, the doctrinal path is
quite circuitous. Because this case is materially identical, a
shortened version will suffice here. To understand the
relevant legal developments requires a bit of background
about Minnesota’s burglary statute, so we begin there.
The Minnesota crimes of first-degree and second-degree
burglary are set forth in a single statute and start from the
same basic definition, then add different sets of aggravating
circumstances. More specifically, “[w]hoever enters a build-
ing 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 second-degree burglary if certain aggravating
circumstances are present (the second-degree aggravators
mostly relate to the nature of the burglarized premises).
MINN. STAT. § 609.582(2)(a). The same basic act is elevated to
first-degree burglary if more serious aggravating circum-
stances are present (the first-degree aggravators mostly
relate to the use of a weapon or the presence of a person in
the burglarized premises). Id. § 609.582(1).
To qualify as ACCA predicates, the elements of
Guenther’s burglary crimes must categorically match those
of “generic burglary,” which the Supreme Court has said
“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.” Taylor v. United
States, 495 U.S. 575, 598 (1990). This categorical approach, as
is now well understood, entails a comparison of legal ele-
ments of the crimes; the underlying facts do not matter. At
the time of Guenther’s § 2255 motion in 2008, Eighth Circuit
6 No. 17-3409
precedent supported a categorical match. Cf. United States v.
LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006) (holding that
Minnesota burglary qualifies under the analogous “crime of
violence” definition in the Sentencing Guidelines).
Seven years after Guenther’s § 2255 motion, the Supreme
Court held that the ACCA’s residual clause is unconstitu-
tionally vague. Johnson v. United States, 576 U.S. 591, 597–98
(2015). That knocked out Guenther’s kidnapping conviction
as an ACCA predicate. His qualifying convictions were
down to three.
Then came Mathis, 136 S. Ct. 2243, which clarified Taylor’s
categorical approach for classifying prior convictions for
purposes of recidivist sentencing enhancements. Mathis
addressed the common problem of alternatively phrased
criminal statutes—a problem first identified in Taylor and
Shepard v. United States, 544 U.S. 13, 25–26 (2005), and elabo-
rated in Descamps v. United States, 570 U.S. 254, 262–63
(2013). Briefly, an alternatively phrased criminal statute may
list different sets of elements (thus defining more than one
crime) or it may simply list different factual means of commit-
ting an element of a single crime. If the statutory alternatives
are separate elements, then the statute defines multiple
separate crimes and is said to be “divisible,” which permits
the court to look to the charging document and a limited set
of additional sources “to determine what crime, with what
elements, [the] defendant was convicted of.” Mathis,
136 S. Ct. at 2249. If, on the other hand, the statutory alterna-
tives are simply different factual means of committing the
crime, then the statute is said to be “indivisible” and the
court must find a categorical match between its elements
and those of the generic offense. Id. at 2248.
No. 17-3409 7
Mathis effectively “narrowed the range of state statutes
that qualify as violent felony predicates,” leading the Eighth
Circuit to rethink its understanding of Minnesota burglary.
Chazen, 938 F.3d at 855. In McArthur the court concluded that
Minnesota’s third-degree burglary offense, which appears in
the same statute as the first- and second-degree offenses,
sweeps more broadly than generic burglary and thus does
not qualify as an ACCA violent felony. 850 F.3d at 939–40.
The third-degree offense is defined in similar language as
the first- and second-degree crimes but without the aggra-
vating circumstances:
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, either directly or as an accom-
plice, commits burglary in the third degree … .
MINN. STAT. § 609.582(3). This statutory phrasing, the Eighth
Circuit held, describes two alternative factual means of
committing the crime. McArthur, 850 F.3d at 938. That is,
Minnesota third-degree burglary is committed by either an
unprivileged entry into a building with intent to commit a
crime or an unprivileged entry followed by the commission
of a crime while remaining in the building; these alternatives
are different factual means of committing the offense, not
separate elements. Id.
The Eighth Circuit went on to conclude that the statute is
overbroad because the second alternative does not include
the Taylor generic-offense requirement of contemporaneous
8 No. 17-3409
intent—i.e., the intent to commit a crime at the moment of the
unprivileged entry or unprivileged “remaining in” the
building. Id. at 939–40. Because the Minnesota third-degree
provision is indivisible, the court held that a conviction
under it does not count as an ACCA predicate. The court
later applied the same reasoning to Minnesota’s second-
degree burglary offense, ruling that it too does not qualify as
an ACCA violent felony. United States v. Crumble, 878 F.3d
656, 661–62 (8th Cir. 2018).
We followed the Eighth Circuit’s lead in Van Cannon,
holding that “Minnesota’s second-degree burglary statute is
indivisible, covers more conduct than the generic offense,
and thus is not an ACCA predicate.” 890 F.3d at 663. Like
the Eighth Circuit, we observed that the second alternative
factual means of committing a Minnesota burglary lacks the
contemporaneous-intent requirement required for generic
burglary. Id. at 664–65. But we took the analysis one step
further, explaining that “[t]he second alternative is just a
trespass (a nonconsensual entry) followed by the commis-
sion of a crime within the trespassed building at some point
thereafter.” Id. at 664. And that, in turn, meant that “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.” Id.
After McArthur but before Van Cannon, Guenther sought
a writ of habeas corpus under § 2241 in the Western District
of Wisconsin. Citing Mathis and McArthur, he argued that
his ACCA-enhanced sentence is unlawful. The government
conceded that if McArthur applied, Guenther would not
have the required three ACCA predicates. But the govern-
ment maintained that Guenther had to establish that he was
No. 17-3409 9
wrongfully sentenced under the law of this circuit—the
circuit of confinement—and had not done so. The district
judge sidestepped the choice-of-law issue, concluding
instead that Mathis does not apply retroactively to cases on
collateral review.
One last doctrinal shift was yet to come. In Quarles v.
United States, 139 S. Ct. 1872 (2019), the Supreme Court
clarified the intent requirement for Taylor’s generic burgla-
ry—or, more specifically, the version of the generic offense
that consists of an unprivileged entry into a building fol-
lowed by the commission of a crime while remaining in the
building. The Court held that “generic remaining-in burgla-
ry occurs when the defendant forms the intent to commit a
crime at any time while unlawfully remaining in a building
or structure.” Id. at 1880 (emphasis added). Quarles thus
undermined McArthur’s rationale regarding the necessity of
contemporaneous intent. The Eighth Circuit has since recog-
nized that McArthur may have been abrogated entirely. See
Raymond v. United States, 933 F.3d 988, 992 (8th Cir. 2019)
(acknowledging ambiguity following Quarles and remand-
ing to the district court to consider McArthur’s vitality).
Though Quarles unsettled the Eighth Circuit’s under-
standing of Minnesota burglary, Van Cannon remains good
law. As we explained in Chazen, “we can say with confi-
dence … that Quarles did not abrogate Van Cannon’s conclu-
sion that Minnesota burglary is broader than generic
burglary because the state statute does not require proof of
any intent at any point.” 938 F.3d at 860. Indeed, the Supreme
Court declined to address this alternative rationale, leaving
Van Cannon intact. See Quarles, 139 S. Ct. at 1880 n.2.
10 No. 17-3409
Guenther’s appeal was on hold during the last steps of
this doctrinal evolution. It is now ready for decision.
II. Discussion
As we’ve explained, a federal prisoner may seek collat-
eral review of his sentence by motion under § 2255, and the
remedy is ordinarily exclusive and limited to one motion.
The statute permits a second or successive motion only if the
prisoner’s claim is based on “newly discovered evidence” or
“a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previ-
ously unavailable.” § 2255(h)(1)–(2).
The statutory saving clause, § 2255(e), permits another
round of collateral review through a petition for habeas
corpus under § 2241, but only if the remedy by motion is
“inadequate or ineffective to test the legality of [the prison-
er’s] detention.” We’ve held that the § 2255 remedy is not
“inadequate or ineffective” unless some structural impedi-
ment prevented its use. Higgs v. Watson, 984 F.3d 1235, 1239–
40 (7th Cir. 2021); Lee v. Watson, 964 F.3d 663, 666–67 (7th Cir.
2020); Purkey v. United States, 964 F.3d 603, 614–15 (7th Cir.
2020).
We explained in Chazen that for statutory claims, our cir-
cuit’s saving-clause caselaw establishes a three-part test for
the narrow § 2255(e) exception:
To pursue relief under § 2241, a petitioner must
establish that “(1) the claim relies on a statuto-
ry interpretation case, not a constitutional case,
and thus could not have been invoked by a
successive § 2255 motion; (2) the petitioner
could not have invoked the decision in his first
No. 17-3409 11
§ 2255 motion and the decision applies retroac-
tively; and (3) the error is grave enough to be
deemed a miscarriage of justice.”
938 F.3d at 856 (quoting Beason v. Marske, 926 F.3d 932, 935
(7th Cir. 2019)).
Our test has its complexities and raises some difficult
questions that to date remain unanswered. 3 Fortunately,
Chazen clears away most of the legal underbrush in its
application here. Like this case, Chazen also involved a
saving-clause challenge to an ACCA-enhanced sentence
based on Minnesota burglary. Our decision there makes
clear that the first two conditions for § 2241 relief weigh
3 For example, we have not been consistent about whether the change in
law must come from the Supreme Court or can come from a court of
appeals. See Chazen v. Marske, 938 F.3d 851, 864–65 (7th Cir. 2019) (Barrett,
J., concurring). Though we have at times said that the new decision must
come from the Supreme Court, we have elsewhere said that a new
circuit-level decision will suffice. Id. (citing Beason v. Marske, 926 F.3d 932,
935 (7th Cir. 2019)). The Fourth and Ninth Circuits also permit saving-
clause petitions based on new circuit-level decisions. United States v.
Wheeler, 886 F.3d 415, 420–21 (4th Cir. 2018); Alaimalo v. United States, 645
F.3d 1042, 1048 (9th Cir. 2011). In contrast, the Fifth and Sixth Circuits
have rejected this view. Hueso v. Barnhart, 948 F.3d 324, 326 (6th Cir.
2020); Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010).
Our cases also do not clearly explain what it means to be “new” in
this context. We have used at least three different standards, asking
whether the petitioner relies on (1) a “new rule” that “could not have
been invoked” in earlier proceedings; (2) a new decision that could not be
invoked at the § 2255 stage; or (3) a “newly decided case of statutory
interpretation” and the claim was “foreclosed by binding precedent” in
the circuit of conviction on direct appeal and previously on collateral
review. Chazen, 938 F.3d at 861–62 (collecting cases) (quotation marks
omitted).
12 No. 17-3409
decidedly in Guenther’s favor. First, Guenther’s claim relies
at least in part on Mathis, a statutory-interpretation case that
“is ‘new’ as a functional and practical matter” because it
“injected much-needed clarity and direction into the law”
regarding the application of the categorical approach.
Chazen, 938 F.3d at 862. Indeed, Mathis spurred our circuit
and the Eighth Circuit to revisit the question whether
Minnesota burglary is a categorical match to generic burgla-
ry. See id. (citing Van Cannon, 890 F.3d at 664; McArthur,
850 F.3d at 938).
Second, it would have been futile before Mathis for
Guenther to raise his new arguments in his first § 2255
motion because Eighth Circuit precedent was firmly against
him at that point. See id. (describing precedent in the Eighth
Circuit “concluding that Minnesota burglary qualified as a
violent felony for federal sentencing purposes”). Moreover,
the government does not dispute that Mathis applies retroac-
tively to cases on collateral review. See id. at 863 (noting that
the second prong was met “where the government has
conceded that Mathis is retroactive” and where the argument
was “so clearly foreclosed by the law of [the petitioner’s]
circuit of conviction at the time of his original § 2255 peti-
tion”). Guenther thus has satisfied the first two saving-clause
requirements.
That leaves only the miscarriage-of-justice inquiry. We
have held that a “fundamental sentencing defect”—
including an erroneous ACCA-enhanced sentence—amounts
to a “miscarriage of justice.” Light v. Caraway, 761 F.3d 809,
813 (7th Cir. 2014) (quotation marks omitted). Here the
question turns on whether Guenther’s Minnesota burglary
convictions are violent felonies. This, in turn, brings the
No. 17-3409 13
knotty choice-of-law question to the fore. Guenther was
convicted, sentenced, and sought § 2255 relief in the Eighth
Circuit, but his place of confinement is in the Western
District of Wisconsin and he properly filed his § 2241 habeas
petition there. See Webster v. Daniels, 784 F.3d 1123, 1144
(7th Cir. 2015) (en banc) (citing Rumsfeld v. Padilla, 542 U.S.
426 (2004)). Chazen leaves unanswered whether we should
evaluate the miscarriage-of-justice inquiry based on our own
precedent as the circuit of confinement or the Eighth
Circuit’s precedent as the circuit of conviction.
The difficulty of the choice-of-law conundrum is magni-
fied by the shifting legal landscape since Quarles. Van Cannon
remains good law, so the law is clear in our circuit that
Minnesota burglary is not a violent felony under the ACCA.
And though the Eighth Circuit once held as much, it has
since recognized that Quarles undermined McArthur—
perhaps abrogated the decision entirely. See Raymond,
933 F.3d at 992; see also Chazen, 938 F.3d at 860 (noting that
Raymond “observ[ed] without deciding that … Quarles may
have abrogated McArthur”). The upshot is that (1) Seventh
Circuit precedent provides relief and (2) the Eighth Circuit’s
current position on Minnesota burglary following Quarles is
at best unclear.4
No circuit has squarely addressed the choice-of-law
question in these circumstances, but there are considerations
pointing in both directions. The concurrence in Chazen
4 District judges in the District of Minnesota have since adopted
Van Cannon’s reasoning. See, e.g., United States v. Raymond, 466 F. Supp. 3d
1008, 1014 (D. Minn. 2020); United States v. Bugh, 459 F. Supp. 3d 1184,
1200 (D. Minn. 2020). The government has not appealed either decision.
14 No. 17-3409
argued that the law of the circuit of conviction should
apply—much like it does for a § 2255 motion—so that
habeas relief will not turn on “the fortuitous placement of a
prisoner by the Bureau of Prisons.” Chazen, 938 F.3d at 865
(Barrett, J., concurring) (quoting Hernandez v. Gilkey,
242 F. Supp. 2d 549, 554 (S.D. Ill. 2001)). On the other hand,
the Sixth Circuit recently suggested that applying the law of
the circuit of confinement “comports with the background
norm that each court should apply its own precedent on the
meaning of federal law.” Hueso v. Barnhart, 948 F.3d 324, 337
(6th Cir. 2020).
We need not settle the debate here. In Chazen we declined
to reach the choice-of-law question because the government
took “the position in the district court that the law of this
circuit governs the merits” of the claim. 938 F.3d at 860. The
same is true in this case.
The government now argues—for the first time on ap-
peal—that Guenther must point to favorable precedent in
both circuits. It’s one thing for the government to take differ-
ent positions in different courts for different defendants. It’s
quite another to take inconsistent positions for the same
defendant at different stages in his case. We therefore hold
the government to its earlier litigation position, like we did
in Chazen, and apply our circuit’s law to the merits of this
appeal.
And under our caselaw, Guenther’s Minnesota burglary
convictions are not violent felonies. See Van Cannon, 890 F.3d
at 665. Accordingly, his ACCA-enhanced sentence amounts
to a miscarriage of justice, and he is entitled to habeas relief
under § 2241. We therefore REVERSE the judgment and
REMAND with instructions to grant Guenther’s § 2241 peti-
No. 17-3409 15
tion and transfer the case to the District of Minnesota for
resentencing.