United States v. Wayne Fisher

United States Court of Appeals
For the Eighth Circuit
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No. 21-2151
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United States of America
Plaintiff - Appellee
v.
Wayne Michael Fisher, also known as Burrito
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: December 17, 2021
Filed: February 18, 2022
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Before SMITH, Chief Judge, GRUENDER and KOBES, Circuit Judges.
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GRUENDER, Circuit Judge.
Wayne Fisher appeals the district court’s 1 determination that his prior
Minnesota first-degree burglary conviction qualifies as a violent felony under 21
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
U.S.C. § 841(b)(1)(A) and the district court’s denial of his request to reduce his
sentence based on time served in tribal jail. We affirm.
I.
Wayne Fisher was charged with one count of conspiracy to distribute fifty
grams or more of methamphetamine and two counts of possession with intent to
distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. The Government also filed an information claiming that
Fisher was subject to an enhanced sentence based on his prior conviction for first-
degree burglary under Minnesota Statutes section 609.582, subdivision 1(c). See 21
U.S.C. §§ 841(b)(1)(A), 851.
Fisher pleaded guilty to one count of possession with intent to distribute
methamphetamine but objected to the enhanced sentence. In addition, Fisher
requested sentencing credit for the time he served in tribal jail for a tribal court
conviction based on the same conduct.
The district court overruled Fisher’s objection to the sentence enhancement,
concluding that his prior burglary conviction qualifies as a “serious violent felony”
under 21 U.S.C. § 841(b)(1)(A). The district court also denied Fisher’s request to
credit his time served in tribal jail against his sentence on the ground that it did not
have the authority to impose a sentence below the mandatory minimum. The district
court sentenced Fisher to 180 months’ imprisonment, the statutory minimum for a
defendant with a prior “serious violent felony” conviction. See § 841(b)(1)(A).
Fisher appeals, challenging the district court’s determination that his prior burglary
conviction qualifies as a “serious violent felony” under § 841(b)(1)(A) and the
district court’s refusal to credit his time served in tribal jail against his sentence.
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II.
We begin with Fisher’s challenge to the district court’s conclusion that his
Minnesota conviction for first-degree burglary qualifies as a “serious violent felony”
under § 841(b)(1)(A). We review the district court’s “legal determination that a
prior conviction is a predicate offense de novo.” United States v. Oliver, 987 F.3d
794, 805 (8th Cir. 2021) (internal quotation mark omitted).
Although a person convicted of an offense involving fifty grams or more of
methamphetamine normally faces a minimum sentence of 10 years’ imprisonment,
§ 841(b)(1)(A)(viii), the minimum sentence is 15 years’ imprisonment if the person
committed the offense “after a prior conviction for a serious drug felony or serious
violent felony ha[d] become final,” § 841(b)(1)(A). An offense is a “serious violent
felony” if it is specifically enumerated in 18 U.S.C. § 3559(c)(2)(F), which does not
include burglary, or is “any other offense . . . that has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
See 21 U.S.C. § 802(58) (defining “serious violent felony” with reference to the
definition in 18 U.S.C. § 3559(c)(2)).
To determine whether a conviction “has as an element the use, attempted use,
or threatened use of physical force against the person of another,”
§ 3559(c)(2)(F)(ii), we apply a categorical approach. See Oliver, 987 F.3d at 806;
Mathis v. United States, 579 U.S. 500, 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 [the crime].” United States v. McArthur,
850 F.3d 925, 937 (8th Cir. 2017). The “generic crime” is “the offense as commonly
understood.” Descamps v. United States, 570 U.S. 254, 257 (2013). If a crime of
conviction’s elements are the same or narrower than the generic crime’s elements,
and the generic crime is a “violent felony,” then the crime of conviction is also a
“violent felony.” See McArthur, 850 F.3d at 937; United States v. Martin, 15 F.4th
878, 883-84 (8th Cir. 2021). In other words, the crime of conviction must “fit[]
within” the generic crime, such that anyone who commits the former has also
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committed the latter. See Martin, 15 F.4th at 883-84. If a statute contains
alternatives, some of which do not have a force element, then we must determine
whether the statute is divisible into alternative elements—separate crimes—or
instead sets forth alternative factual means to commit a single offense. Mathis, 136
S. Ct. at 2249; United States v. Mata, 869 F.3d 640, 642 (8th Cir. 2017). “If statutory
alternatives carry different punishments, then . . . they must be elements,” meaning
they are treated as separate crimes. Mathis, 136 S. Ct. at 2256. When making the
means-or-elements determination, we may consider authoritative state court
decisions. Id. “[I]f state law fails to provide clear answers,” we may look at “the
record of a prior conviction itself . . . for the sole and limited purpose of determining
whether [the listed items are] element[s] of the offense.” Id. at 2256-57 (internal
quotation marks omitted) (second and third alterations in original).
“[I]f 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.” McArthur, 850 F.3d at 937-38 (quoting Descamps, 570 U.S. at
262-65). “[T]o determine what crime, with what elements, a defendant was
convicted of,” we may consider “a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and colloquy).” Mathis, 136 S. Ct.
at 2249; see also Shepard v. United States, 544 U.S. 13, 26 (2005). Then, we
determine whether that crime is broader than the generic offense. Descamps, 570
U.S. at 263. The crime of conviction qualifies as a “serious violent felony” only if
it is not broader than the generic offense. See id. at 260-65.
Minnesota’s first-degree burglary statute makes it a crime to
enter[] a building without consent and with intent to commit a crime,
or enter[] a building without consent and commit[] a crime while in the
building . . . if:
(a) the building is a dwelling and another person, not an
accomplice, is present in it when the burglar enters or at any time
while the burglar is in the building;
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(b) the burglar possesses, when entering or at any time while in the
building, any of the following: a dangerous weapon, any article used
or fashioned in a manner to lead the victim to reasonably believe it to
be a dangerous weapon, or an explosive; or
(c) the burglar assaults a person within the building or on the
building’s appurtenant property.
Minn. Stat. § 609.582, subd. 1. The statute provides a mandatory minimum sentence
of six months for violations of paragraph (a), “burglary of an occupied dwelling,”
but no mandatory minimum sentence for violations of paragraphs (b) or (c). Id. at
subd. 1a.
Fisher and the Government agree that the statute is broader than the generic
definition of burglary. Thus, we must determine whether the statute is divisible. See
Mathis, 136 S. Ct. at 2249. Because (a) has a different punishment from (b) and (c),
(a) “must be [an] element[],” indicating a separate crime. See id. at 2256. Fisher
argues that (b) and (c)—(c) being the paragraph he was convicted under—cannot
denote elements of separate crimes because they do not have different punishments.
See id. But if (a) is an element, then first-degree burglary is not a distinct crime in
and of itself, and the statutory structure suggests that (b) and (c) are separate crimes
like (a).
Minnesota state court cases treat each paragraph as a distinct crime rather than
as an alternative factual means of committing the same crime. Defendants are
specifically charged and convicted of (a), (b), or (c), see, e.g., State v. Spence, 768
N.W.2d 104, 107 (Minn. 2009); State v. Hodges, 384 N.W.2d 175, 178 n.1, 182-83
(Minn. Ct. App. 1986), the elements of which need to be proven beyond a reasonable
doubt, see, e.g., State v. Kelley, No. A19-0997, 2020 WL 3635298, at *1 (Minn. Ct.
App. July 6, 2020) (unpublished); State v. Nyansikera, No. A14-0993, 2015 WL
1401573, at *1-2 (Minn. Ct. App. March 30, 2015) (unpublished). The Minnesota
Court of Appeals has also referred to each paragraph as a separate crime. State v.
Mitchell, 881 N.W.2d 558, 562 (Minn. Ct. App. 2016) (referring to “the elements of
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first-degree burglary (dangerous weapon)” and “the elements of first-degree
burglary (assault)”). Discussing (b) and (c), it explained that “[s]ince each crime
requires proof of an element that the other does not, neither crime necessarily is
proved when the other is proved.” Id. (emphasis added).
Fisher’s arguments do not persuade us that Minnesota courts treat the
paragraphs as means. Fisher argues that Minnesota courts have treated similarly
structured statutes as having alternative means. But those statutes are
distinguishable because none of them has separate punishments for different
paragraphs like first-degree burglary does. See Minn. Stat. §§ 609.2242, .25, .582.
And Minnesota courts care about whether paragraphs have different punishments
because different punishments reflect different levels of culpability. See State v.
Dalbec, 789 N.W.2d 508, 511 (Minn. Ct. App. 2010).
Fisher also argues that Mitchell stands for the proposition that the paragraphs
of first-degree burglary do not have different elements and therefore are not separate
crimes. See 881 N.W.2d at 562-64. We disagree. Mitchell dealt with the
interpretation of a sentencing statute, which generally bars courts from imposing
separate sentences for two convictions that arose from the same conduct, and a
specific exception to that statute for burglary. Id. at 563; Minn. Stat. § 609.04, .585.
Even though the court concluded under the sentencing statute and its exception that
the defendant could not be sentenced for both (b) and (c), we do not interpret
Mitchell as suggesting that the paragraphs of first-degree burglary cannot be treated
as separate crimes. See Mitchell, 881 N.W.2d at 562-64.
Finally, Fisher observes that the Minnesota Supreme Court has stated that “[a]
person may commit first-degree burglary in several ways.” See State v. Holmes, 778
N.W.2d 336, 340 (Minn. 2010). But the court also noted that the defendant “was
convicted of and sentenced for violating Minn. Stat. § 609.582, subd. 1(c), first-
degree burglary with assault.” Id. Thus, the court suggested that the statute’s
paragraphs defined separate crimes. Accord Spence, 768 N.W.2d at 106-07 (noting
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that the defendant was convicted of two counts of first-degree burglary under (a) and
(c)); Hodges, 384 N.W.2d at 178 n.1, 182-83.
In addition to Minnesota state caselaw and the language and structure of the
statute, Minnesota’s model jury instructions and “the record of [the] prior
conviction” also support our conclusion that the burglary statute is divisible. See
Mathis, 136 S. Ct. at 2256. “We may use a state’s model jury instructions to
reinforce our interpretation of the means or elements inquiry.” United States v.
McMillan, 863 F.3d 1053, 1057 (8th Cir. 2017) (internal quotation marks omitted).
Minnesota’s model jury instructions state that “[a]s a general rule, parentheses
indicate options for factual variations, whereas brackets indicate optional element
choices, depending on the portion of the statute that has been charged.” 10 Minn.
Pract. Series, Crim. Jury Instr. Guide—Criminal Preliminary Materials. The model
jury instructions for section 609.582, subdivision 1, have brackets around each
paragraph. 10A Minn. Pract. Series, Crim. Jury Instr. Guide 17.01. There are also
separate jury instructions for each paragraph. Id. at 17.02-17.04. Moreover, the
criminal complaint and judgment associated with Fisher’s prior conviction show that
he was charged with and convicted of violating Minnesota Statutes section 609.582,
subdivision 1(c).2
Based on the statute’s language and structure, Minnesota state court decisions,
Minnesota’s model jury instructions, and the record of Fisher’s prior conviction, we
conclude that Minnesota’s first-degree burglary statute is divisible.
2
Fisher argues that the statute cannot be divisible because he was acquitted of
both counts of assault at trial and the Government did not submit the jury instructions
given in the trial to prove that the jury found that he committed burglary with assault.
This argument fails because to convict Fisher of violating (c) the state was required
to prove that “the defendant assault[ed] a person within the building or on the
building’s appurtenant property.” See Minn. Stat. § 609.582, subd. 1(c); Kelley,
2020 WL 3635298, at *1; Minn. Pract. Series, Crim. Jury Instr. Guide 17.04.
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Now, we apply the modified categorical approach to determine “which of the
alternatives was the basis for the conviction.” McArthur, 850 F.3d at 937-38. The
criminal complaint and judgment show that Fisher was charged and convicted under
Minnesota Statutes section 609.582, subdivision 1(c), burglary with assault.
Fisher does not argue that if the burglary statute is divisible, his prior
conviction nonetheless does not qualify as a “serious violent felony.” Thus, we
conclude that Minnesota’s first-degree burglary statute is divisible and that
paragraph (c), burglary with assault, qualifies as a “serious violent felony,” and we
affirm the district court’s application of the enhanced sentence. See United States v.
Rice, 699 F.3d 1043, 1050 (8th Cir. 2012) (“Issues not raised in a party’s opening
brief are waived.”).
III.
Next, we address Fisher’s challenge to the district court’s denial of his request
to adjust his sentence based on time served in tribal jail. The district court concluded
that it did not have the authority to credit Fisher for time served in tribal jail. We
agree.
At sentencing, Fisher argued that U.S.S.G. § 5G1.3(b)(1) allowed the district
court to adjust his sentence for time served in tribal jail even though he was
sentenced to the 15-year mandatory minimum sentence. See § 841(b)(1)(A).
Section 5G1.3(b)(1) does not apply to Fisher, however, because it applies only to
undischarged sentences, and Fisher’s tribal jail term was discharged. On appeal,
Fisher argues for the first time that the district court can “adjust” his sentence to
reflect time he served in tribal jail under U.S.S.G. § 5K2.23. Because Fisher did not
raise § 5K2.23 at sentencing, we review for plain error. See United States v.
Coleman, 961 F.3d 1024, 1027 (8th Cir. 2020). As relevant here, to prevail under
plain-error review, the appellant must show that the district court committed an error
that “is clear or obvious under current law.” United States v. Diaz-Ortiz, 927 F.3d
1028, 1030 (8th Cir. 2019).
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The district court did not clearly or obviously err in refusing to give Fisher
credit for time served in tribal jail. Under § 5K2.23, the district court can depart
downward “if the defendant (1) has completed serving a term of imprisonment; and
(2) subsection (b) of § 5G1.3 (Imposition of a Sentence on a Defendant Subject to
Undischarged Term of Imprisonment or Anticipated Term of Imprisonment) would
have provided an adjustment had that completed term of imprisonment been
undischarged at the time of sentencing for the instant offense.” Fisher argues that
§ 5K2.23 allows a court to “adjust” a sentence below a statutory minimum. But all
§ 5K2.23 allows a court to do is depart downward, not adjust, and a court cannot
depart below the statutory minimum sentence unless it has statutory authority to do
so. See United States v. Watts, 553 F.3d 603, 604 (8th Cir. 2009). Neither of the
statutory exceptions apply here. See 18 U.S.C. § 3553(e) (substantial-assistance
exception), § 3553(f) (information-disclosure exception). Thus, we are inclined to
agree with the other circuits that have decided this issue that § 5K2.23 does not allow
the district court to depart downward below the statutory minimum. See United
States v. Moore, 918 F.3d 368, 371-72 (4th Cir. 2019); United States v. Lucas, 745
F.3d 626, 629 n.5 (2d Cir. 2014); United States v. Cruz, 595 F.3d 744, 746 (7th Cir.
2010). At a minimum, the district court did not clearly or obviously err in denying
Fisher’s request.
Finally, Fisher argues for the first time on appeal that the different treatment
of discharged and undischarged sentences in 18 U.S.C. § 3584 violates his due
process rights. We review this challenge for plain error. See Coleman, 961 F.3d at
1027. In United States v. Otto, we held that treating discharged and undischarged
sentences differently is supported by a rational basis and therefore does not violate
due process rights. 176 F.3d 416, 418 (8th Cir. 1999). We explained that
[w]ith undischarged sentences, there remains uncertainty as to the
amount of time a defendant will actually serve. For example, a
defendant could be paroled, placed on probation after serving some
period of shock detention, given credit off a sentence for good behavior,
or have the sentence vacated. There are no such contingencies in regard
to a discharged sentence and it is rational to treat the two differently.
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Id. Even though Otto involved a pre-§ 5K2.23 challenge to § 5G1.3(b)’s exclusive
application to undischarged sentences, not a challenge to 18 U.S.C. § 3584, we are
nonetheless bound by Otto’s conclusion that treating discharged and undischarged
sentences differently does not violate the Due Process Clause. See id. Thus, the
district court did not clearly or obviously err by applying § 3584.
IV.
For the foregoing reasons, we affirm Fisher’s sentence.
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