United States v. Devonte Holston ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2626
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Devonte Darnell Holston
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: November 7, 2018
Filed: July 15, 2019
[Unpublished]
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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
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PER CURIAM.
Following a guilty plea to being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e), the district court sentenced Devonte Holston
to 180 months imprisonment, finding that he qualified for the mandatory minimum
imposed by the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Holston’s
armed career criminal classification was based on three prior convictions in
Wisconsin state court for burglary of a building or dwelling, in violation of Wis. Stat.
§ 943.10(1m)(a), which the district court determined qualified as predicate violent
felonies. Holston appealed, arguing these convictions could not serve as predicate
offenses for the purposes of the ACCA because two of his offenses were committed
on the same occasion and because § 943.10(1m)(a) listed alternative means, rather
than elements, and did not meet the generic definition of burglary so as to qualify as
a violent felony under § 924(e)(2)(B).
On August 24, 2018, we entered an opinion affirming Holston’s sentence,
holding that the two challenged convictions involved offenses committed on separate
occasions and that the burglary statute under which Holston was convicted met the
generic definition of burglary and was thus a violent felony. Our decision on the
latter point was controlled by United States v. Lamb, 847 F.3d 928, 932, 934 (8th Cir.
2017) (holding that § 943.10(1m)(a) fit within the generic definition of burglary and
thus qualified as a violent felony), which Holston conceded controlled the issue.
We subsequently granted Holston’s petition for panel rehearing based on the
submission of a certified question to the Wisconsin Supreme Court by the Seventh
Circuit in United States v. Franklin, 895 F.3d 954 (7th Cir. 2018) (per curiam),
regarding whether burglary under § 943.10(1m)(a) identified alternative elements of
burglary or identified alternative means of committing burglary. The Wisconsin
Supreme Court has now answered this certified question, holding that the statute
provides alternative means of committing one element of the crime of burglary. See
Franklin v. United States, 928 N.W.2d 545 (Wis. 2019).
Given the recent changes in the legal landscape, we now consider anew
Holston’s challenge to his ACCA classification. “We review de novo the district
court’s determination of whether [Holston]’s criminal record qualified him as an
Armed Career Criminal.” United States v. Willoughby, 653 F.3d 738, 741 (8th Cir.
2011). Where a statute lists alternatively phrased items, the determination of whether
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it lists elements or means is a matter of state law, and we look to “authoritative
sources of state law[,]” like “a state court decision [that] definitively answers the
question[.]” Lamb, 847 F.3d at 931 (alteration in original) (quoting Mathis v. United
States, 136 S. Ct. 2243, 2256 (2016)). And where a state court answers a question of
state law contrary to a previous decision of our Court, we no longer follow the
previous panel decision. See Neidenbach v. Amica Mut. Ins. Co., 842 F.3d 560, 566
(8th Cir. 2016) (“[A]bsent an intervening opinion by a [state] court, we are bound by
a prior panel’s interpretation of state law.” (second alteration in original) (internal
quotation marks omitted). In Franklin, the Wisconsin Supreme Court has provided
a decision that definitively answers the question; however, that answer is in conflict
with our Court’s previous decision in Lamb. Because Franklin is an “intervening
opinion by a [state] court,” see id., we are no longer bound to follow Lamb’s holding.
Based on the Wisconsin Supreme Court’s determination that § 943.10(1m)(a)
provides various means of committing one element of the burglary offense, we
conclude that the definition of burglary in this section is broader than the generic
definition of burglary for the purposes of the ACCA. Holston’s convictions under
§ 943.10(1m)(a) therefore do not qualify as violent felonies under the ACCA. We
vacate Holston’s sentence and remand for resentencing without application of the
ACCA.1
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1
The government concedes in a Rule 28(j) letter, filed June 21, 2019, that the
sentence should be vacated and the case remanded for resentencing without the
ACCA based upon the Wisconsin Supreme Court’s opinion in Franklin.
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