United States v. Justin Edwards ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15-2373 & 15-2374
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUSTIN EDWARDS,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 13-cr-56 & 14-cr-102 — Barbara B. Crabb, Judge.
____________________
No. 15-2552
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RYAN POULIOT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 14-cr–104 — James D. Peterson, Judge.
2  Nos. 15‐2373 , 15‐2374 & 15‐2552
____________________
ARGUED DECEMBER 10, 2015 — DECIDED SEPTEMBER 8, 2016
____________________
Before POSNER, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. In separate cases Justin Edwards and
Ryan  Pouliot  pleaded  guilty  to  firearms  offenses  that  carry
an enhanced base offense level under the Sentencing Guide‐
lines  if  the  defendant  has  a  prior  conviction  for  a  “crime  of
violence.”  See  U.S.S.G.  §  2K2.1(a).  At  the  time  they  were
sentenced,  the  version  of  the  Guidelines  then  in  effect  de‐
fined  “crime  of  violence”  to  include  “any  offense  under
federal or state law … that … is burglary of a dwelling.” Id.
§ 4B1.2(a)(2).1 Both defendants have prior Wisconsin convic‐
tions for burglary; the district judge in each case counted the
convictions  as  crime‐of‐violence  predicates  and  applied  the
higher offense level. The defendants challenge the enhance‐
ment, arguing that a conviction under Wisconsin’s burglary
statute cannot serve as a predicate offense under § 2K2.1(a).
Because their appeals raise the same issue, we’ve consolidat‐
ed them for decision.
To  determine  whether  a  prior  conviction  counts  as  a
crime of violence requires a categorical approach that focus‐
es  on  the  statutory  definition  of  the  crime  of  conviction.  If
1  All  references  to  the  Sentencing  Guidelines  are  to  the  2014  version  in
effect  when  Edwards  and  Pouliot  were  sentenced.  The  Sentencing
Commission  has  since  amended  §  4B1.2(a)(2),  removing  burglary  of  a
dwelling from the list of offenses that qualify as a crime of violence; the
amendment  became  effective  on  August  1,  2016.  See  81  Fed.  Reg.  4741,
4742 (2016).
Nos. 15-2373, 15-2374 & 15-2552 3
state law defines the offense more broadly than the Guide-
lines, the prior conviction doesn’t qualify as a crime of
violence, even if the defendant’s conduct satisfies all of the
elements of the Guidelines offense. In a narrow set of cir-
cumstances, the sentencing court may go one step beyond
the statute itself. When a single statute creates multiple
offenses, the court may consult a limited universe of docu-
ments to determine which offense the defendant was con-
victed of committing. This inquiry is called the “modified
categorical approach,” but it only applies to “divisible”
statutes. The Supreme Court recently clarified that a statute
is considered divisible only if it creates multiple offenses by
setting forth alternative elements. See United States v. Mathis,
136 S. Ct. 2243 (2016).
Wisconsin defines burglary more broadly than the
Guidelines: The relevant statute prohibits burglary of a
“building or dwelling.” WIS. STAT. § 943.10(1m)(a). The
judges in both cases consulted the state charging documents
to determine whether Edwards and Pouliot were convicted
of burglary of a dwelling as required by § 4B1.2(a)(2). The
documents revealed that both were charged with burgling a
dwelling, so the judges applied a higher offense level under
§ 2K2.1(a).
After Mathis, however, it’s clear that this recourse to state-
court charging documents was improper. The relevant
subsection of Wisconsin’s burglary statute sets forth alterna-
tive means of satisfying the location element of the state’s
burglary offense. Accordingly, we vacate the sentences and
remand for resentencing.
4 Nos. 15-2373, 15-2374 & 15-2552
I. Background
A. Edwards
In 2013 Justin Edwards was charged with possessing a
firearm as a felon, see 18 U.S.C. § 922(g)(1), and possessing a
short-barreled shotgun, see 26 U.S.C. §§ 5841, 5845(a)(2),
5861(d). He was released on bond while an appeal of an
evidentiary ruling was pending and quickly racked up
multiple state-law charges in three separate cases. In Sep-
tember 2014 Edwards was again arrested and charged with
two more federal gun crimes—another charge of possessing
a firearm as a felon and a charge of possessing a firearm as a
drug user, see 18 U.S.C. § 922(g)(3). Plea agreements were
reached in both the 2013 and the 2014 federal cases.
Two disputes arose at sentencing. First, the judge deter-
mined that Edwards’s prior Wisconsin conviction for bur-
glary of a “building or dwelling,” WIS. STAT. § 943.10(1m)(a),
qualified as a crime of violence under § 4B1.2(a)(2) of the
Guidelines. To make that determination, the judge consulted
the state charging documents—a criminal complaint and
information. Both documents stated that Edwards “inten-
tionally enter[ed] a dwelling, without the consent of the
person in lawful possession of the place, and with intent to
steal.” On that basis, and over Edwards’s objection, the
judge applied a higher base offense level under § 2K2.1(a)(2).
Second, and again over Edwards’s objection, the judge
declined to apply an acceptance-of-responsibility reduction
under § 3E1.1 of the Guidelines because Edwards committed
multiple criminal offenses while on pretrial release for the
2013 charges. With the crime-of-violence enhancement and
without an acceptance-of-responsibility reduction, the
Nos. 15-2373, 15-2374 & 15-2552 5
Guidelines range was 92–115 months. The judge imposed a
sentence of 92 months, the bottom of the range.
B. Pouliot
In an unrelated case in the same district, Ryan Pouliot
was charged with possessing a firearm and ammunition as a
felon, and he too pleaded guilty. At sentencing the judge
determined that Pouliot’s prior Wisconsin burglary convic-
tion qualified as a crime of violence under § 4B1.2(a)(2) of
the Guidelines. As in Edwards’s case, the judge consulted
the charging documents in the underlying state proceedings
to make that determination; those documents revealed that
Pouliot had been charged with burgling a dwelling. The
judge accordingly rejected Pouliot’s objection and applied
the crime-of-violence enhancement under § 2K2.1(a)(3),
which yielded a Guidelines range of 84–105 months. The
judge imposed a below-range sentence of 72 months.
II. Discussion
Edwards and Pouliot challenge the application of the
crime-of-violence enhancement based on their Wisconsin
burglary convictions. Edwards also challenges the judge’s
refusal to apply an acceptance-of-responsibility reduction
under § 3E1.1.
A. Crime-of-Violence Enhancement
Whether a prior conviction counts as a crime of violence
is a question of law that we review de novo. United States v.
Woods, 576 F.3d 400, 408 (7th Cir. 2009). The version of the
Guidelines in effect when the defendants were sentenced
listed “burglary of a dwelling” as a qualifying “crime of
violence.” U.S.S.G. § 4B1.2(a)(2). The defendants have prior
convictions for burglary in violation of section 943.10(1m)(a)
6 Nos. 15-2373, 15-2374 & 15-2552
of the Wisconsin Statutes, but that statute is broader than the
Guidelines; it makes burglary of a “building or dwelling” a
Class F felony. The issue here is whether subsection (a) of
the Wisconsin burglary statute is divisible. If it is, then it was
appropriate for the judges in these cases to consult the state
charging documents. If it’s not divisible, then a conviction
under Wisconsin’s burglary statute doesn’t qualify as a
crime of violence for purposes of the Sentencing Guidelines.
1. Divisibility
The concept of divisibility is an outgrowth of the categor-
ical approach that governs the crime-of-violence determina-
tion under the Sentencing Guidelines. 2 See Mathis, 136 S. Ct.
at 2248–49. The categorical approach disregards the facts
underlying a prior conviction, focusing instead on the
statutory definition of the offense. See id. at 2248 (citing
Taylor v. United States, 495 U.S. 575, 600–01 (1990)). If the
statutory definition is the same as (or narrower than) the
Guidelines definition, the prior conviction can be counted as
a crime of violence. But if a statute defines an offense more
broadly than the Guidelines, the prior conviction doesn’t
count, “even if the defendant’s actual conduct (i.e., the facts
2 The categorical approach was developed in the context of the Armed
Career Criminal Act (“ACCA”), which enhances the sentence of a felon
who has three prior convictions for a “violent felony.” 18 U.S.C. § 924(e).
The ACCA definition of a violent felony is “closely analogous” to the
Guidelines definition of a crime of violence. United States v. Woods,
576 F.3d 400, 403–04 (7th Cir. 2009). Accordingly, we’ve held that the
categorical approach applies when determining if a prior conviction
qualifies as a crime of violence under the Sentencing Guidelines, see id.,and “we refer to cases dealing with the ACCA and the career offender
guideline provision interchangeably,” United States v. Taylor, 630 F.3d
629, 633 n.2 (7th Cir. 2010).
Nos. 15-2373, 15-2374 & 15-2552 7
of the crime)” would fit within the Guidelines definition. Id.Consequently, in most cases the sentencing judge’s inquiry
is limited to “the fact of conviction and the statutory defini-
tion of the prior offense.” Taylor, 495 U.S. at 602.
We say “most cases” because the categorical approach
“may permit the sentencing court to go beyond the mere fact
of conviction in a narrow range of cases where a jury was
actually required to find all the elements” of the Guidelines
offense. Id. This occurs when a statute is “divisible,” mean-
ing it “sets out one or more elements of the offense in the
alternative.” Descamps v. United States, 133 S. Ct. 2276, 2281
(2013). Under these circumstances a court may “consult a
limited class of documents … to determine which alternative
formed the basis of the defendant’s prior conviction.” Id. The
documents that may be consulted include charging papers,
jury instructions, and any available plea agreements or plea
colloquies. Shepard v. United States, 544 U.S. 13, 20 (2005).
This variant of the categorical approach has been dubbed the
“modified categorical approach.” Descamps, 133 S. Ct. at
2281.
Until recently, the circuits were split regarding what
qualifies as a divisible statute. Some had held that any
statute containing a list of alternatives is divisible, while
others distinguished between statutes that list alternative
elements (thus creating multiple offenses) and statutes that
create a single offense with alternative means of satisfying
an element of that offense. See Mathis, 136 S. Ct. at 2250–51,
2251 n.1. The Supreme Court resolved the split in Mathis,
holding that a statute is divisible only if it creates multiple
offenses by listing one or more alternative elements. Id. at
2253–54. A statute that defines a single offense with alterna-
8 Nos. 15-2373, 15-2374 & 15-2552
tive means of satisfying a particular element is indivisible
and therefore not subject to the modified categorical ap-
proach. Id. at 2251. 3
2. Wisconsin’s Burglary Statute
With this framework in place, we proceed to the central
question presented here: Is subsection (a) of Wisconsin’s
burglary statute divisible? As we’ve just explained, the
answer depends on whether subsection (a) defines multiple
offenses by listing alternative elements or instead lists
alternative means of committing a single offense. “Elements
are the constituent parts of a crime’s legal definition—the
3 Like the Supreme Court’s other decisions addressing the categorical
approach, Mathis dealt with whether a prior conviction qualifies as a
violent felony under the ACCA. The Court highlighted three reasons for
its “adher[ence] to an elements-only inquiry”: (1) the ACCA’s use of the
word “conviction” mandates it; (2) a contrary approach would “raise
serious Sixth Amendment concerns”; and (3) “an elements-focus avoids
unfairness to defendants” by preventing factual admissions that a
defendant had no reason to contest in a prior proceeding from serving as
the basis for an enhanced penalty. United States v. Mathis, 136 S. Ct. 2243,
2252–53 (2016). After United States v. Booker, 543 U.S. 220 (2005), the
Guidelines no longer raise the same Sixth Amendment concerns as the
ACCA. But the Guidelines do use the same language of “conviction” and
create the same potential for unfairness to defendants in sentencing. Cf.
United States v. Jones, 2016 WL 3923838, at *4 (2d Cir. July 21, 2016)
(applying the reasoning of Mathis to the career-offender guideline).
And Mathis itself indicates that its holding applies in the immigra-
tion context, where Sixth Amendment concerns are similarly immaterial.
136 S. Ct. at 2253 n.3; accord Gomez-Perez v. Lynch, 2016 WL 3709757, at *2
& n.4 (5th Cir. July 11, 2016). These reasons, along with our precedents
treating ACCA and Guidelines cases interchangeably for purposes of the
categorical approach, lead us to conclude that Mathis applies with equal
force in the context of the career-offender guideline.
Nos. 15-2373, 15-2374 & 15-2552 9
things the prosecution must prove to sustain a conviction.”
Mathis, 136 S. Ct. at 2248 (internal quotation marks omitted).
Means, in contrast, are legally extraneous facts that “need
neither be found by a jury nor admitted by a defendant.” Id.
The distinction is both familiar and important because
“[c]alling a particular kind of fact an ‘element’ carries certain
legal consequences.” Richardson v. United States, 526 U.S. 813,
817 (1999). “[A] jury in a federal criminal case cannot convict
unless it unanimously finds that the Government has proved
each element” of an offense, but all members of the jury
need not agree on “which of several possible means the
defendant used to commit an element of the crime.” Id.; see
also Alleyne v. United States, 133 S. Ct. 2151, 2156 (2013).
Multiplicity challenges likewise turn on the elements of the
charged offenses: The Double Jeopardy Clause permits
successive punishment or prosecution of multiple offenses
arising out of the same conduct only if each offense contains
a unique element. See United States v. Dixon, 509 U.S. 688,
696, 703–04 (1993) (citing Blockburger v. United States, 284 U.S.
299, 304 (1932)); accord United States v. Larsen, 615 F.3d 780,
788 (7th Cir. 2010) (“In multiplicity challenges the elements of
each offense—not the specific offense conduct—determine
whether two offenses are the same for purposes of double
jeopardy.”). After Mathis the divisibility of a statute rests on
the same distinction between elements and means. 136 S. Ct.
at 2254–55.
Mathis offers some practical guidance for drawing the
distinction in this particular context. First, a decision by the
state supreme court authoritatively construing the relevant
statute will both begin and end the inquiry. Id. at 2256; see
also Schad v. Arizona, 501 U.S. 624, 636 (1991) (“If a State’s
10 Nos. 15-2373, 15-2374 & 15-2552
courts have determined that certain statutory alternatives
are mere means of committing a single offense, rather than
independent elements of the crime, we simply are not at
liberty to ignore that determination … .”). Absent a control-
ling state-court decision, the text and structure of the statute
itself may provide the answer. Mathis, 136 S. Ct. at 2256; see
also Schad, 501 U.S. at 636 (“The question whether statutory
alternatives constitute independent elements of the of-
fense … is a substantial question of statutory construction.”).
Failing those “authoritative sources of state law,” sentencing
courts may look to “the record of a prior conviction itself”
for the limited purpose of distinguishing between elements
and means. Mathis, 136 S. Ct. at 2256–57.
The parties haven’t directed us to a decision of the
Wisconsin Supreme Court that construes subsection (a) of
the state’s burglary statute, and our own search has yielded
none. Accordingly, we’re on our own and turn first to the
text and structure of the statute itself. Section 943.10(1m)
provides:
Whoever intentionally enters any of the fol-
lowing places without the consent of the per-
son 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 ves-
sel; or
(d) A locked enclosed cargo portion of a
truck or trailer; or
Nos. 15-2373, 15-2374 & 15-2552 11
(e) A motor home or other motorized type of
home or a trailer home, whether or not any
person is living in any such home; or
(f) A room within any of the above.
The statute thus criminalizes the act of intentionally en-
tering certain types of locations without consent and with
the intent to steal or commit a felony. Subsections (a)–(f)
describe the various locations that the statute covers, any
one of which will satisfy the location requirement for burgla-
ry. The phrase “building or dwelling” is one of several
disjunctively phrased lists that appear within these subsec-
tions.
The statute’s text and structure suggest that the compo-
nents of each subsection are merely “illustrative examples”
of particular location types. Mathis, 136 S. Ct. at 2256. That’s
clearly true for subsections (c)–(e) given the virtually synon-
ymous terms contained within these subsections. See, e.g.,
Manson v. State, 304 N.W.2d 729, 736 (Wis. 1981) (“If the
[statutory] alternatives are similar, one crime was probably
intended.”). There’s no plausible argument that the Wiscon-
sin legislature intended to create a distinct offense for enter-
ing a “ship” as opposed to a “vessel,” a “truck” as opposed
to a “trailer,” or a “motor home or other motorized home” as
opposed to a “trailer home.” These subsections simply
identify several different ways of describing a particular
location.
To put the question in double-jeopardy terms: The statu-
tory structure does not suggest that each subsection creates
multiple crimes; a ship is a particular type of vessel, but a
12 Nos. 15-2373, 15-2374 & 15-2552
prosecutor couldn’t charge two counts of burglary for a
single act of breaking into a ship.
Read in this context, the phrase “building or dwelling” in
subsection (a) is best understood as likewise providing two
examples of enclosed structures rather than creating two
separate offenses. Reinforcing that conclusion is the fact that
those alternatives carry the same punishment. Cf. Mathis,
136 S. Ct. at 2256 (“If statutory alternatives carry different
punishments, then under Apprendi they must be elements.”).
On its face subsection (a) of Wisconsin’s burglary statute
thus identifies two means of committing a single crime rather
than alternative elements.
To the extent that we have lingering uncertainties about
whether “building” and “dwelling” are elements or means,
Mathis suggests that we resolve them by looking to the
record of the defendant’s prior conviction. Because both
defendants pleaded guilty in the underlying state-court
proceedings, the record is limited to the charging documents
and in Edwards’s case, the plea colloquy. See Descamps,
133 S. Ct. at 2285 n.2 (noting that courts may look to any of
the Shepard documents, including the “indictment, jury
instructions, plea colloquy, and plea agreement”). The Court
explained in Descamps (and reiterated in Mathis) that these
documents will likely “reflect the crime’s elements.” Id.;
Mathis, 136 S. Ct. at 2256–57.
The Shepard documents are of little use here. Cf. Mathis,
136 S. Ct. at 2257 (“Of course, such record materials will not
in every case speak plainly … .”). Under Wisconsin law the
complaint and information, which are the documents that
initiate proceedings against a criminal defendant, must
allege every element of the crime charged, but they may also
Nos. 15-2373, 15-2374 & 15-2552 13
(and usually do) include additional facts that need not be
proved to the jury beyond a reasonable doubt. See State v.
Baldwin, 304 N.W.2d 742, 746 (Wis. 1981) (“[W]hile a charg-
ing document must always allege facts necessary to support
a conviction, it does not follow that a conviction requires
proof of every fact alleged in a complaint.”). Similarly, the
recitation of a crime’s elements during a plea colloquy may
include as much or as little factual detail as necessary for the
defendant to understand the nature of the charges against
him. See State v. Brown, 716 N.W.2d 906, 2006 WI 100, ¶ 52.
Indeed, the Wisconsin Supreme Court has “encourage[d]
circuit court judges to translate legal generalities into factual
specifics when necessary to ensure the defendant’s under-
standing of the charges.” Id. ¶¶ 56, 58. The upshot of these
rules is that in Wisconsin neither the charging documents
nor a plea colloquy will necessarily reflect only the elements
of a crime.
These two appeals illustrate a practical difficulty that can
arise in applying the Mathis/Descamps rule. In the state-court
proceedings against Edwards and Pouliot, the complaint
and information specify that each defendant was charged
with burgling a dwelling. If Wisconsin law required that all
facts alleged in the charging documents be proved to a jury
beyond a reasonable doubt, we could conclude that “dwell-
ing” is an element. But because the charging documents may
allege additional facts, the inclusion of “dwelling” tells us
nothing about whether it’s an element of burglary or simply
a factual description of the type of enclosed structure the
defendant entered. Edwards’s plea colloquy is similarly
unhelpful: It includes a recitation of the “elements of burgla-
ry as they apply to [Edwards’s] case.” (Emphasis added.) In
14 Nos. 15-2373, 15-2374 & 15-2552
short, the record materials simply do not speak to whether
“building” and “dwelling” are elements or means.
Left with only the text and structure of Wisconsin’s bur-
glary statute, we conclude that subsection (a) lists alternative
means rather than elements and is therefore indivisible. That
conclusion resolves this appeal: The elements of the crime of
conviction “cover a greater swath of conduct” than the
elements of the Guidelines offense, so the defendants’
burglary convictions cannot serve as predicate offenses
under § 2K2.1(a). Mathis, 136 S. Ct. at 2251. Edwards and
Pouliot are entitled to resentencing.
B. Acceptance-of-Responsibility Reduction
Edwards raises an additional challenge to his sentence.
He argues that the district judge erred by refusing to apply
an acceptance-of-responsibility reduction under § 3E1.1 of
the Guidelines. We review the judge’s decision for clear
error. United States v. Seller, 595 F.3d 791, 793 (7th Cir. 2010).
Section 3E1.1(a) calls for a two-level reduction in the de-
fendant’s offense level “[i]f the defendant clearly demon-
strates acceptance of responsibility for his offense.” Applica-
tion note 3 explains that entry of a guilty plea before trial
and truthfully admitting any additional relevant conduct
“will constitute significant evidence of acceptance of respon-
sibility” but “may be outweighed by conduct of the defend-
ant that is inconsistent with such acceptance of responsibil-
ity.” § 3E1.1 cmt. n.3. Continued criminal activity is the sort
of conduct that is inconsistent with acceptance of responsi-
bility. United States v. McDonald, 22 F.3d 139, 144 (7th Cir.
1994). However, “the Guidelines do not authorize the court
to adopt a per se rule denying a reduction when a defendant
Nos. 15-2373, 15-2374 & 15-2552 15
engages in further criminal activity.” United States v. Bothun,
424 F.3d 582, 587 (7th Cir. 2005).
Edwards has wisely omitted a challenge to the judge’s
finding that he continued to engage in criminal activity
while on pretrial release for his 2013 offenses. Instead he
argues that the judge wrongly thought that this conduct
necessarily precluded an acceptance-of-responsibility reduc-
tion. This argument rests on the following comment by the
judge:
I understand that [Edwards] thinks he should
receive the credit because he did cooperate
with investigators, he never contested his crim-
inal conduct, and he was arrested without in-
cident. However, the other part of that --
what’s required for that reduction is that he
voluntarily terminate his criminal conduct and
associations and he did not do that.
Edwards argues that the judge’s reference to “what’s re-
quired” for acceptance-of-responsibility credit means that
she treated his continued criminal activity as categorically
disqualifying.
We disagree. The judge expressly acknowledged that
Edwards’s guilty plea and admission of other relevant
conduct weighed in favor of the downward adjustment.
That’s enough to satisfy us that she understood the law and
considered factors both for and against an acceptance-of-
responsibility reduction. See id. And given how extensive
Edwards’s continued criminal activity was, the judge’s
determination that it outweighed Edwards’s cooperation
was not clear error.
16 Nos. 15-2373, 15-2374 & 15-2552
* * *
For the foregoing reasons, we VACATE the defendants’
sentences and REMAND for resentencing.