Jerry Van Cannon v. United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2631
JERRY L. VAN CANNON,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 16-cv-433-bbc — Barbara B. Crabb, Judge.
____________________
ARGUED JANUARY 18, 2018 — DECIDED MAY 16, 2018
____________________
Before SYKES and HAMILTON, Circuit Judges, and LEE,
District Judge. ∗
SYKES, Circuit Judge. In 2009 Jerry Van Cannon pleaded
guilty to possessing a firearm as a felon in violation of
18 U.S.C. § 922(g)(1). He was sentenced under the Armed
Career Criminal Act (“ACCA”), which imposes higher
∗ Of the Northern District of Illinois, sitting by designation.
2 No. 17-2631
penalties on § 922(g) violators who have three prior convic-
tions for a “violent felony” or “serious drug offense.” Id.
§ 924(e). Van Cannon’s presentence report identified five
qualifying ACCA predicates, including Iowa convictions for
burglary and attempted burglary and a Minnesota convic-
tion for second-degree burglary. The district judge accepted
this tally and imposed the mandatory minimum 15-year
prison term.
In 2015 the Supreme Court invalidated, on vagueness
grounds, the provision in the “violent felony” definition
known as the “residual clause.” Johnson v. United States,
135 S. Ct. 2551, 2563 (2015). Within a year Van Cannon filed
for relief under 28 U.S.C. § 2255 in light of Johnson. A few
days later, the Supreme Court held that Iowa burglary does
not qualify under another part of the definition. Mathis v.
United States, 136 S. Ct. 2243, 2257 (2016).
The government conceded the Johnson error. The Iowa
attempted burglary was a residual-clause offense and no
longer counted toward Van Cannon’s ACCA total. And
Mathis knocked out the Iowa burglary. Still, three predicates
remained, so the government argued that the Johnson error
was harmless. The judge agreed and denied § 2255 relief.
A few weeks later, the judge withdrew her order. A re-
cent Eighth Circuit opinion had cast doubt on whether one
of the remaining predicates—the Minnesota second-degree
burglary—still counted after Mathis. See United States v.
McArthur, 836 F.3d 933 (8th Cir. 2016), amended & superseded
by United States v. McArthur, 850 F.3d 925 (8th Cir. 2017). The
judge appointed counsel and ordered briefing. Van Cannon
argued that Minnesota second-degree burglary is not an
ACCA predicate; the government maintained that it is. The
No. 17-2631 3
judge ultimately sidestepped the issue, concluding instead
that Van Cannon’s claim was untimely.
We reverse. First, Van Cannon’s § 2255 claim was timely;
he properly challenged his sentence within one year of
Johnson. Second, we agree with the Eighth Circuit that the
Minnesota crime of second-degree burglary does not qualify
as an ACCA predicate. See United States v. Crumble, 878 F.3d
656, 661 (8th Cir. 2018); see also McArthur, 850 F.3d at 937–40.
A burglary counts for ACCA purposes only if its elements
match the elements of “generic” burglary, defined as “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). The
Minnesota statute covers a broader swath of conduct than
generic burglary. It permits conviction without proof of
burglarious intent—that is, without proof that the offender
had the intent to commit a crime at the moment he unlawful-
ly entered or unlawfully “remained in” the building or
structure. Accordingly, the Minnesota burglary drops out of
the ACCA total, leaving only two predicates. Van Cannon is
entitled to resentencing.
I. Background
Van Cannon is no stranger to trouble with the law. From
1984 to 2008, he was convicted of multiple crimes in three
states. As relevant here, his record includes an Iowa second-
degree burglary (1984), an Iowa attempted burglary (1992),
an Iowa drug felony (1993), a Wisconsin armed robbery
(1996), a Minnesota second-degree burglary (2003), and a
Wisconsin fleeing (2008).
4 No. 17-2631
In the fall of 2008, police received a tip that Van Cannon
was selling methamphetamine out of a motel in Eau Claire
County, Wisconsin. Several days later the tipster reported
that Van Cannon had expressed interest in purchasing an
assault rifle and hinted at possible robberies in the near
future.
The informant agreed to cooperate with police and intro-
duced Van Cannon to an undercover officer posing as a
source for firearms. Van Cannon told the officer he wanted
“nothing less than a .357 magnum.” Recorded phone con-
versations followed, and the officer eventually called
Van Cannon and offered to sell him a Rock Island Armory
.45-caliber pistol for $400. Van Cannon was short on cash, so
the officer agreed to front the gun on the condition that
Van Cannon would pay $800 to $900 after he completed a
“job.” The two met in a Walmart parking lot for the ex-
change. Van Cannon took possession of the gun and was
promptly arrested.
A grand jury indicted Van Cannon for possessing a fire-
arm as a felon in violation of § 922(g)(1). He pleaded guilty
as charged. The crime ordinarily carries a 10-year maximum,
see 18 U.S.C. § 924(a)(2), but the ACCA sets a 15-year mini-
mum term and lifts the maximum to life in prison if the
defendant has three or more prior convictions for a “violent
felony” or “serious drug offense,” § 924(e).
The ACCA defines “violent felony” as “any crime pun-
ishable by imprisonment for a term exceeding one year” that
• “has as an element the use, attempted use,
or threatened use of physical force against
the person of another”;
No. 17-2631 5
• “is burglary, arson, or extortion, [or] in-
volves the use of explosives”; or
• “otherwise involves conduct that presents a
serious potential risk of physical injury to
another.”
§ 924(e)(2)(B). The first part of the definition is known as the
“force clause”; the second clause lists specific qualifying
offenses, most notably burglary; and the third clause is the
“residual clause.”
The presentence report (“PSR”) identified five qualifying
ACCA predicates: Iowa convictions for burglary and at-
tempted burglary, the Iowa drug offense, the Wisconsin
armed robbery, and the Minnesota second-degree burglary.
Van Cannon’s Wisconsin fleeing conviction also qualified at
the time, see Sykes v. United States, 564 U.S. 1 (2011), overruled
by Johnson, 135 S. Ct. 2551, but the PSR didn’t include it in the
ACCA count, perhaps because it was surplus. The judge
accepted the PSR’s list of qualifying predicates and sen-
tenced Van Cannon to the statutory minimum 15-year prison
term.
In June 2015 the Supreme Court invalidated the residual
clause as unconstitutionally vague. Johnson, 135 S. Ct. at
2563. In June 2016, just before the expiration of the one-year
limitations period, see § 2255(f), Van Cannon moved pro se to
vacate his sentence in light of Johnson. A few days later, the
Supreme Court held that Iowa burglary is not an ACCA
predicate. Mathis, 136 S. Ct. at 2257.
In response to the § 2255 motion, the government agreed
that Van Cannon’s Iowa attempted-burglary and Wisconsin
fleeing convictions were residual-clause offenses and thus no
6 No. 17-2631
longer qualified after Johnson. The government also conced-
ed that the Iowa burglary dropped out as an ACCA predi-
cate in light of Mathis. But three convictions remained—the
Iowa drug offense, the Wisconsin armed robbery, and the
Minnesota second-degree burglary—so the government
argued that the Johnson error was harmless. The judge
agreed and denied the motion.
About a month later, the judge withdrew her order based
on the Eighth Circuit’s decision in McArthur, 836 F.3d 933,
which caused her to question whether the Minnesota burgla-
ry conviction still qualified as an ACCA predicate after
Mathis. The judge appointed counsel for Van Cannon and
ordered the parties to brief the issue. In the meantime, the
Eighth Circuit issued a new opinion in McArthur unequivo-
cally holding that the Minnesota crime of third-degree
burglary is not an ACCA predicate. 850 F.3d at 937–40.
Minnesota second-degree burglary—Van Cannon’s crime of
conviction—is defined in much the same way as third-
degree burglary, only the second-degree crime is committed
in particular places (e.g., a dwelling) or with burglarious
tools. 1 Compare MINN. STAT. § 609.582(2)(a) with § 609.582(3).
Now represented by counsel, Van Cannon urged the
judge to follow the Eighth Circuit’s decision in McArthur,
1 The definition is almost the same as the third-degree offense, but the
crime is elevated to second-degree burglary if the building in question is
a dwelling, bank, or pharmacy, or if the offender possesses burglarious
tools. See MINN. STAT. § 609.582(2)(a). In 2007 Minnesota renumbered the
second-degree burglary statute, changing it from § 609.582(2) to
§ 609.582(2)(a). The operative language remains the same. We use the
current numbering to refer to both versions.
No. 17-2631 7
vacate the 15-year sentence, and resentence him without the
ACCA enhancement. The government argued that McArthur
was wrongly decided. In the end the judge did not reach the
merits question. She held instead that Van Cannon’s § 2255
claim was untimely and dismissed it.
Van Cannon appealed. While the appeal has been pend-
ing, the Eighth Circuit applied its reasoning in McArthur to
the Minnesota crime of second-degree burglary, holding that
it is not an ACCA predicate. Crumble, 878 F.3d at 661.
II. Discussion
Van Cannon argues, as he did in the district court, that
his 15-year sentence is unlawful because Minnesota second-
degree burglary—one of three available ACCA predicates
after Johnson—does not qualify as a violent felony. Before we
take up that merits question, we pause to clear some proce-
dural underbrush.
A. Sua Sponte Vacatur
As we’ve explained, the judge initially agreed with the
government that the Johnson error was harmless and denied
the § 2255 motion on the merits. A few weeks later, she
withdrew that order sua sponte. The government did not
object to this procedural move, either in the district court or
here. That would ordinarily be a waiver, but it’s not clear
whether the judge’s action affects appellate jurisdiction.
Probably not, but in an abundance of caution, we briefly
address the matter.
Rule 60(b) of the Federal Rules of Civil Procedure per-
mits the court “[o]n motion and just terms” to grant relief
from a final judgment for the reasons listed. Appellate courts
disagree on whether district judges may grant Rule 60(b)
8 No. 17-2631
relief sua sponte. Some circuits hold that the rule requires a
party’s motion. See, e.g., United States v. Pauley, 321 F.3d 578,
581 (6th Cir. 2003); Eaton v. Jamrog, 984 F.2d 760, 762 (6th Cir.
1993); Dow v. Baird, 389 F.2d 882, 884–85 (10th Cir. 1968).
Others hold that the district court may vacate a judgment on
its own motion. See, e.g., Pierson v. Dormire, 484 F.3d 486, 491–
92 (8th Cir. 2007); McDowell v. Celebrezze, 310 F.2d 43, 44 (5th
Cir. 1962).
Circuit precedent puts us in the latter camp, though
without much explanation. In Simer v. Rios, we summarily
held that the district court may vacate a final judgment
under Rule 60(b) on its own motion. 661 F.2d 655, 663 n.18
(7th Cir. 1981). An even older decision reached the same
conclusion. Ray v. United States, 121 F.2d 416, 418 (7th Cir.
1941). Other cases—in this court and elsewhere—discuss the
current circuit split without mentioning Simer or Ray. See,
e.g., Judson Atkinson Candies, Inc. v. Latini–Hohberger Dhiman-
tec, 529 F.3d 371, 385 (7th Cir. 2008) (discussing the circuit
split but overlooking Simer and Ray); Ocean City Costa Rica
Inv. Grp., LLC v. Camaronal Dev. Grp., LLC, 571 F. App’x 122,
127 (3d Cir. 2014) (same).
There may be good reason to reconsider Simer and Ray,
especially in light of Rule 60’s revised text. Compare FED. R.
CIV. P. 60(a) (providing that a court may correct a clerical
mistake “on motion or on its own” (emphasis added)), with
id. 60(b) (providing that a court may vacate a judgment only
“[o]n motion and just terms”). The government hasn’t asked
us to do so here, so we leave the question for another day.
No. 17-2631 9
B. Timeliness
After ordering briefs on the effect of the Eighth Circuit’s
decision in McArthur, the judge surprised everyone by
dismissing Van Cannon’s § 2255 motion as untimely. That
was error.
Ordinarily a prisoner must file a § 2255 motion within
one year of sentencing. 28 U.S.C. § 2255(f)(1). But the one-
year clock restarts when the Supreme Court newly recogniz-
es a right and its decision applies retroactively to cases on
collateral review. Id. § 2255(f)(3). Johnson fits the bill. The
Court recognized a new due-process right and later held that
the right applies retroactively. See Welch v. United States,
136 S. Ct. 1257 (2016). Van Cannon moved to vacate his
sentence within one year of Johnson, so his request for § 2255
relief was timely.
The district judge saw things differently. After taking a
second look at the motion, she decided that Van Cannon
wasn’t really making a Johnson claim after all. As she under-
stood the motion, Van Cannon relied not on Johnson (or at
least not on Johnson alone) but on Mathis. She went on to
hold that Mathis is not retroactive, so the one-year limita-
tions clock never restarted and the § 2255 motion was there-
fore untimely.
This chain of reasoning rests on a misunderstanding of
the claim. To win § 2255 relief, Van Cannon had to establish
a Johnson error and that the error was harmful. The govern-
ment confessed the Johnson error: Van Cannon’s Iowa con-
viction for attempted burglary was a residual-clause offense
and thus was wrongly included in his ACCA total. The only
remaining dispute concerned the question of prejudice. The
10 No. 17-2631
government argued that the error was harmless because
Van Cannon still had three qualifying ACCA predicates—
the Wisconsin armed robbery, the Iowa drug offense, and
the Minnesota second-degree burglary.
To rebut this argument, Van Cannon was entitled to
show that under current caselaw, one or more of those
remaining predicates could not be counted. See United States
v. Geozos, 870 F.3d 890, 897 (9th Cir. 2017). That’s exactly
what he did. He maintained that the Johnson error was
prejudicial in light of Mathis, which refined the categorical
approach—first established in Taylor—for determining
ACCA predicates. Under Mathis and Taylor, he argued, his
Minnesota conviction for second-degree burglary could no
longer be included in the ACCA count, leaving only two
qualifying predicates—not enough for an enhanced sen-
tence. Properly understood, then, Van Cannon invoked
Mathis and Taylor not as independent claims but to show
that the Johnson error was prejudicial.
The parties agree on this characterization of
Van Cannon’s motion. The government concedes, as it must,
that Van Cannon’s Iowa burglary conviction drops out of the
ACCA count in light of Mathis. The government also agrees
that the Wisconsin fleeing conviction cannot be added to the
mix to make up the gap. Though considered a residual-
clause offense at the time of sentencing, see Sykes, 564 U.S. 1,
overruled by Johnson, 135 S. Ct. at 2563, it no longer qualifies.
For his part, Van Cannon admits that his Iowa drug con-
viction and his Wisconsin armed robbery still count as
ACCA predicates. So the harmless-error question boils down
to the proper classification of the Minnesota second-degree
burglary conviction. If it qualifies as a violent felony, then
No. 17-2631 11
Van Cannon has three valid predicates and the Johnson error
was harmless. If it does not, then the error was prejudicial
and Van Cannon must be resentenced.
C. Minnesota Second-Degree Burglary
With these procedural matters out of the way, we turn
now to the question of how to classify the Minnesota crime
of second-degree burglary. The ACCA includes burglary in
its list of enumerated violent felonies, see § 924(e)(2)(B)(ii),
but the statute does not define “burglary.” Taylor holds that
the ACCA incorporates the “modern, generic 1984 defini-
tion”—that is, “the generic sense in which the term [was
then] used in the criminal codes of most [s]tates.” 495 U.S. at
544, 598. Generic burglary “contains at least the following
elements: an unlawful or unprivileged entry into, or remain-
ing in, a building or other structure, with intent to commit a
crime.” Id. at 598 (citing 2 WAYNE R. LAFAVE & AUSTIN W.
SCOTT, SUBSTANTIVE CRIMINAL LAW § 8.13(a), (c), (e) (1986)).
This definition “approximates that adopted by the drafters
of the Model Penal Code.” Id. at 598 n.8.
Taylor also holds that classifying convictions under the
ACCA requires a categorical approach that looks only to
“the elements of the statute of conviction, not to the facts of
each defendant’s conduct.” Id. at 601. Limiting the inquiry to
statutory elements rather than actual facts implements the
text of the ACCA, which “refers to ‘a person who … has
three previous convictions’ for—not a person who has com-
mitted—three previous violent felonies or drug offenses.” Id.
at 600 (emphases added) (quoting § 924(e)(2)(B)(i)). Taylor’s
elements-based approach also rests on concerns about
fairness and reinforces the Sixth Amendment rule against
12 No. 17-2631
increasing penalties based on judge-found facts. Mathis,
136 S. Ct. at 2252–53.
So Minnesota’s crime of second-degree burglary will
qualify as an ACCA predicate “only if its elements match
those of [the] generic offense.” Id. at 2251. Under the categor-
ical approach, “[a] crime counts as ‘burglary’ under the Act
if its elements are the same as, or narrower than, those of the
generic offense.” Id. at 2248. If, on the other hand, the statute
in question “sweeps more broadly” than the generic offense,
then the conviction doesn’t qualify as an ACCA predicate.
Descamps v. United States, 570 U.S. 254, 260 (2013).
One final doctrinal point before we proceed. The categor-
ical comparison is easy if the statute in question contains
only one set of elements defining a single crime: the sentenc-
ing court simply compares that set to the elements of the
generic offense. Things get tricky, however, if the statute is
phrased alternatively—if, for example, it lists elements in the
alternative and thus defines more than one crime, or if it lists
different factual means of committing an element of a single
crime. Mathis, 136 S. Ct. at 2249.
An alternatively phrased statute of the first type—one
that lists alternative elements—is considered “divisible” in
the sense that it divides into multiple crimes. For that kind of
statute, the sentencing court must “determine what crime,
with what elements, a defendant was convicted of” before
counting the conviction as an ACCA predicate. Id. This
inquiry brings into play the so-called “modified categorical
approach,” which permits the court to review “a limited
class of documents (for example, the indictment, jury in-
structions, or plea agreement and colloquy)” but only for the
limited purpose of determining whether the elements of the
No. 17-2631 13
crime of conviction match (or are narrower than) the ele-
ments of the generic offense. Id. Again, the underlying facts
of the defendant’s conduct do not matter. Id. at 2256 (“Given
[the] ACCA’s indifference to how a defendant actually
committed a prior offense, the court may ask only whether
the elements of the state crime and generic offense make the
requisite match.”).
It follows, then, that if an alternatively phrased statute
describes different factual means of committing an element
of a single crime, then the modified categorical approach has
no role to play. Id. at 2253. A statute of this type is “indivisi-
ble”: it defines a single offense, albeit one with multiple
modes of commission. Id. at 2248. If the alternative means
listed in an indivisible statute cover a broader swath of
conduct than the generic offense, then a conviction under the
statute doesn’t count as an ACCA predicate. Id. at 2251. Put
slightly differently, “if the crime of conviction covers any
more conduct than the generic offense, then it is not an
ACCA ‘burglary’—even if the defendant’s actual conduct
(i.e., the facts of the crime) fits within the generic offense’s
boundaries.” Id. at 2248.
Our job is made easier because the Eighth Circuit preced-
ed us in applying these principles to Minnesota’s burglary
statute. Extrapolating from its earlier decision in McArthur,
the Eighth Circuit recently concluded that Minnesota’s
second-degree burglary statute is indivisible, covers more
conduct than the generic offense, and thus is not an ACCA
predicate. Crumble, 878 F.3d at 661; see also McArthur,
850 F.3d at 937 (holding the same for Minnesota third-degree
burglary). We agree.
14 No. 17-2631
The Minnesota crime of second-degree burglary is de-
fined as follows: “Whoever enters a building without con-
sent 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 burglary in the second
degree” if certain aggravating factors are present. MINN.
STAT. § 609.582(2)(a) (emphasis added). The disjunctive
phrasing describes two different factual ways of committing
a single crime; it does not establish two crimes. That’s how
the Eighth Circuit read the statute. Crumble, 878 F.3d at 661
(construing the Minnesota second-degree burglary statute);
McArthur, 850 F.3d at 938 (construing almost identical
language in the same statute defining third-degree burgla-
ry). Because the two statutory alternatives are different
means of committing a single crime rather than distinct
elements of separate crimes, the Eighth Circuit held that the
statute is indivisible. Crumble, 878 F.3d at 661; McArthur,
850 F.3d at 938. The government does not challenge this
conclusion, and we see no reason to disagree with our sister
circuit, which has greater familiarity with Minnesota law.
Because the statute is indivisible, a conviction under it
does not count as an ACCA predicate if one of the listed
alternatives is broader than generic burglary. That describes
this statute. The first alternative is generic burglary: A
person commits burglary in the second degree if he “enters a
building without consent and with intent to commit a
crime.” MINN. STAT. § 609.582(2)(a). But the second alterna-
tive is not: A person can be convicted of this same crime if he
“enters a building without consent and commits a crime
while in the building.” Id.
No. 17-2631 15
The second alternative is just a trespass (a nonconsensual
entry) followed by the commission of a crime within the
trespassed building at some point thereafter. Thus a person
could be convicted under this statute if, for example, he
broke into a building without permission to escape the cold
and only later decided to steal something (or caused injury
to person or property, whether intentionally or recklessly).
On those facts the entry would be unprivileged but not
accompanied by burglarious intent—that is, the perpetrator
did not commit an unprivileged entry with the present intent
to commit a crime in the building. The second alternative in
the Minnesota statute thus covers a broader swath of con-
duct than Taylor’s definition of generic burglary.
The government insists that the second alternative fits
comfortably within Taylor’s definition of generic burglary,
which includes the act of unlawfully “remaining in … a
building … with intent to commit a crime.” 495 U.S. at 598
(emphasis added). In the government’s view, Minnesota’s
trespass-plus-crime alternative matches the “remaining in”
version of generic burglary because this variant of the
generic offense requires only that intent to commit a crime
arise at some point while the perpetrator is in the trespassed
building.
We see several problems with this argument. For starters,
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. The government
maintains that intent to commit a crime is implicit because
the statute requires proof of a completed crime within the
trespassed building. But not all crimes are intentional; some
require only recklessness or criminal negligence. That aside,
16 No. 17-2631
Taylor’s elements-based approach does not countenance
imposing an enhanced sentenced based on implicit features
in the crime of conviction.
More importantly, the government’s argument overlooks
that generic burglary requires intent to commit a crime at the
moment of the unlawful entry or unlawful “remaining in” a
building or structure. That’s what distinguishes burglary
from simple trespass. As the Eighth Circuit has explained,
the proper reading of Taylor “and the sources on which it
relied [is] 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.” McArthur, 850 F.3d at
939 (emphasis added) (citing 2 WAYNE R. LAFAVE & AUSTIN
W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 8.13(b), (e), at
468, 473–74 & n.101 (1st ed. 1986)).
“Contemporaneous intent was the essence of burglary at
common law,” and Taylor’s phrasing of the intent element
“mirrors the typical phrasing at common law.” United States
v. Bonilla, 687 F.3d 188, 196–97 (4th Cir. 2012) (Traxler, C.J.,
dissenting) (citing 3 WAYNE R. LAFAVE, SUBSTANTIVE
CRIMINAL LAW § 21.1(e) (2d ed. 2003) and 4 WILLIAM
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND
(1769)). Taylor relies on the 1986 LaFave treatise and the
Model Penal Code, both of which explain that a key require-
ment of burglary is the element of contemporaneous intent
to commit a crime at the moment of the unlawful entry or
unlawful “remaining in” the structure. See LAFAVE & SCOTT,
supra, § 8.13(b), at 468 (explaining that intent “need only
exist at the time the defendant unlawfully remained with-
in”); MODEL PENAL CODE § 221.1 cmt. (1), (3) (AM. LAW INST.
1980) (referring to the “purpose that accompanies the entry”
No. 17-2631 17
and “the purpose that must accompany the intrusion”). The
current version of the LaFave treatise retains this require-
ment. See 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW
§ 21.1(e) (3d ed. 2016). So a person commits the remaining-
in variant of generic burglary when he enters with consent
but exceeds the scope of that consent—say, for example, by
staying in a store after closing time or by entering a part of a
building not covered by the consent. But it’s not a burglary
unless the person had the intent to commit a crime at the
moment he unlawfully “remained in” the building. Id.
§ 21.1(b) & n.47.
Moreover, and contrary to the government’s view, the
remaining-in variant of generic burglary is not a continuous
act. “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.” McArthur,
850 F.3d at 939. We know this because Taylor referred to
“entry into, or remaining in” as discrete, alternative acts. On
the government reading of the generic offense, “entry” is
almost superfluous: If “remaining in” is a continuous act,
then every unlawful “entry” would immediately become an
unlawful “remaining” as well. See United States v. Herrold,
883 F.3d 517, 532 (5th Cir. 2018) (en banc); McArthur,
850 F.3d at 939.
So we agree with the Eighth Circuit that Minnesota’s
trespass-plus-crime alternative for second-degree burglary
covers more conduct than Taylor’s definition of generic
burglary. See Crumble, 878 F.3d at 660–62; see also McArthur,
850 F.3d at 939 (“If the defendant does not have the requisite
intent at the moment he ‘remains,’ then he has not commit-
ted the crime of generic burglary.”). Accordingly, Minnesota
18 No. 17-2631
second-degree burglary does not qualify as a violent felony
under the ACCA.2
Only two ACCA predicates remain—the Wisconsin
armed robbery and the Iowa drug offense. That’s not
enough to support the enhanced sentence. Because the
Johnson error was prejudicial, Van Cannon must be resen-
tenced.
REVERSED and REMANDED.
2 There is an emerging circuit split on the correct way to understand
Taylor’s requirement of burglarious intent. Compare United States v. Priddy,
808 F.3d 676, 684–85 (6th Cir. 2015), abrogated on other grounds, United
States v. Stitt, 860 F.3d 854, 856 (6th Cir. 2017) (en banc), and United States
v. Bonilla, 687 F.3d 188, 192–94 (4th Cir. 2018), with United States v. Herrold,
883 F.3d 517, 531–36 (5th Cir. 2018) (en banc), and United States v.
McArthur, 850 F.3d 925, 939 (8th Cir. 2017).