United States v. Wakinyan McArthur , 836 F.3d 931 ( 2016 )

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: May 18, 2016
Filed: September 8, 2016
____________
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 as to the sufficiency of the evidence, jury instructions, or sentencing. 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
-2-
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 leaders in the gang’s hierarchical structure. 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 from their drug sales. Wuori obtained cocaine from suppliers, 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 members to 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
members talked about harming Daniels in hopes of removing him from their 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
members to “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 six-
week trial, which included testimony from victims of Mob attacks, former Mob
members, and investigators, a jury convicted the men of several charges. After the
-5-
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 counts related 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 at sentencing ruled that Morris’s
three prior Minnesota 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
-7-
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 open-
ended 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
charges relating 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 observed Cree staring at him as Cree 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 locations that 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
-11-
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
-12-
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 the Armed Career
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 third-
degree burglary in Minnesota, and that he was subject to the enhancement. The court
thus imposed a 360-month sentence for Morris’s violation of § 922(g).
Morris contends on appeal that 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. We conclude that Morris is correct.
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 . . . .
-13-
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 alternatives satisfy 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.
Section 609.582, subd. 3, is divisible, so we must consider whether each
statutory alternative qualifies as a “violent felony.” The government argues that we
have ruled already that convictions under either alternative in § 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
-14-
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
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
-15-
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.
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.
-16-
Our understanding of Taylor, requiring the existence of “contemporaneous
intent,” is consistent with the views of the Fifth and Ninth Circuits. See United States
v. Herrera-Montes, 490 F.3d 390, 392 & n.1 (5th Cir. 2007); United States v. Bonat,
106 F.3d 1472, 1475-76 (9th Cir. 1997). A divided panel of the Fourth Circuit
reached a contrary conclusion in United States v. Bonilla, 687 F.3d 188, 192-94 (4th
Cir. 2012). The Bonilla panel reasoned that even when a state burglary statute does
not require contemporaneous intent, it corresponds “in substance” to Taylor’s
definition of generic burglary. Id. (quotation omitted). A dissenting judge disagreed,
concluding that generic burglary as defined by Taylor includes a requirement of
contemporaneous intent, and that a state statute without that element does not qualify
as generic burglary. Id. at 196-98 (Traxler, C.J., dissenting). For the reasons
discussed, we believe the Bonilla dissent, along with the Fifth and Ninth Circuits, has
the better view. With respect, we also believe the Fourth Circuit’s concern that a
requirement of contemporaneous intent is “too rigid,” 687 F.3d at 194, is at odds with
the exacting standard applied by the Supreme Court in its recent decisions in this
area. See, e.g., Mathis, 136 S. Ct. at 2251-54, 2257; id. at 2270-71 (Alito, J.,
dissenting); Descamps, 133 S. Ct. at 2283-86, 2293.
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 qualify as a violent felony.
Section 609.582, subd. 3, thus includes at least one alternative that does not satisfy
Taylor. The district court should have applied the modified categorical approach to
ascertain which alternative formed the basis of Morris’s third-degree burglary
convictions and then to decide whether the convictions were violent felonies. See
Descamps, 133 S. Ct. at 2283-85. Accordingly, we vacate Morris’s sentence and
remand for further proceedings.
-17-
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
the Double Jeopardy Clause by imposing consecutive sentences for 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
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
-18-
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 “dual sovereignty principle inherent in our federal system,” does seek
“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).
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 contends that the jury instructions as to Count 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.
-19-
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 elements instruction for aiding and abetting Count 10 required the jury
to find beyond a reasonable doubt that McArthur “must . . . have known that someone
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 at some 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 of shooting 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
-20-
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 defends the 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
was instructed that to convict McArthur for aiding and abetting in the commission of
Count 10, McArthur “must . . . have known that someone was going to knowingly use
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 firearm in 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 is thus
not plain.
-21-
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
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
contends that 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 cases involving “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.
-22-
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
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
-23-
vacate McArthur’s conviction on Count 11, affirm his remaining convictions, vacate
McArthur’s entire sentence, and remand for resentencing.
______________________________
-24-