In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3667
JOHN W. DAWKINS,
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.
____________________
Motion for an Order Authorizing the District Court for the Northern
District of Illinois, Eastern Division, to Entertain a Second or Successive
Motion for Collateral Review—John W. Darrah, Judge.
____________________
SUBMITTED DECEMBER 2, 2015— DECIDED JANUARY 7, 2016
____________________
Before POSNER, FLAUM, and RIPPLE, Circuit Judges.
PER CURIAM. John Dawkins pleaded guilty to armed
robbery of a bank and was sentenced, as a career offender, to
serve 262 months in prison. He wants to attack his sentence
in a suit under 28 U.S.C. §§ 2244(b) and 2255(h). He relies on
Johnson v. United States, 135 S. Ct. 2551 (2015), which holds
that the residual clause of the Armed Career Criminal Act is
unconstitutionally vague.
2 No. 15‐3667
If Johnson applies to the identically worded residual
clause in the career offender guideline (an issue currently
before this court in United States v. Rollins, No. 13‐1731, and
the consolidated cases of United States v. Hurlburt, No. 14‐
3611 and United States v. Gillespie, No. 15‐1686), Dawkins
cannot show that his sentence violates Johnson. For the sen‐
tence was based not on the residual clause but on prior con‐
victions for carjacking, an element of which is the use or
threatened use of force, and on residential burglary, defined
in U.S.S.G. § 4B1.2(a)(2) as a “crime of violence.”
Dawkins argues that the sentencing judge’s reliance on
his prior conviction for burglary was invalid under Descamps
v. United States, 133 S. Ct. 2276 (2013), which held that a di‐
visible statute only one part of which is a forcible felony may
not be used to support a sentencing enhancement unless a
specified type of document (such as the order of conviction
or the indictment) establishes that the defendant indeed
committed the forcible offense. 720 ILCS 5/19‐1. Residential
burglary, however, which is committed when a defendant
“knowingly and without authority enters or knowingly and
without authority remains within the dwelling place of an‐
other … with the intent to commit therein a felony or theft,”
720 ILCS 5/19‐3,” satisfies the ruling in Taylor v. United States,
495 U.S. 575, 599 (1990), that “a person has been convicted of
burglary for purposes of a § 924(e) enhancement if he is convict‐
ed of any crime … having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or struc‐
ture, with intent to commit a crime.”
Dawkins argues that entering “without authority” is not
the same as entering “unlawfully,” and covers a broader
spectrum of entries (for example, shoplifting, which is not a
No. 15‐3667 3
form of burglary: see People v. Miller, 938 N.E.2d 498, 506–07
(Ill. 2010), distinguishing retail theft, 720 ILCS 5/16A‐3, from
burglary, 720 ILCS 5/19‐1, and holding that a conviction for
both arising from the same act does not violate the double
jeopardy clause or Illinois’s comparable bar on multiple
punishments for the same offense).
Retail theft, which includes shoplifting, does not require
proof of any type of entry, and certainly not an unauthorized
entry. In fact, People v. Miller, supra at 507, relies on the fact
that burglary requires entry without authority to enter to
distinguish the two crimes. And Illinois courts, like federal
courts, use terms like unlawfully, unauthorized, without
consent, and without authority interchangeably: “Burglary
requires a knowingly unlawful entry into a building with the
intent to commit a theft therein.” People v. Heinz, 946 N.E.2d
1087, 1093 (Ill. App. 2011); People v. Bradford, 21 N.E.3d 753,
759‐60 (Ill. App. 2014) (using “unlawful” and “without au‐
thority” interchangeably); United States v. Thornton, 463 F.3d
693, 702 (7th Cir. 2006) (assuming that Illinois burglary,
which requires an entry “without authority,” meets the Tay‐
lor definition of “an unlawful or unprivileged entry”); see
also United States v. Ramirez‐Flores, 743 F.3d 816 (11th Cir.
2014) (equating an entry “without consent” to “an unlawful
or unprivileged entry”); United States v. Bonilla, 687 F.3d 188,
192–93 (4th Cir. 2012) (equating an entry “without effective
consent of the owner” to an “unlawful or unprivileged en‐
try”); United States v. Constantine, 674 F.3d 985, 990 (8th Cir.
2012) (entering “without consent” meets the Taylor definition
of burglary); United States v. King, 422 F.3d 1055, 1058 (10th
Cir. 2005) (entering “without authority or permission” meets
Taylor definition); United States v. Tighe, 266 F.3d 1187, 1196
(9th Cir. 2001) (likewise “unauthorized entry); United States
4 No. 15‐3667
v. Lujan, 9 F.3d 890, 892–93 (10th Cir. 1993) (rejecting a dis‐
tinction between “unauthorized entry” and “unlawful or
unprivileged entry”).
No particular level of force is required for a burglary to
count as a predicate—in fact no force at all. Burglary is
“commonly understood to include not only aggravated bur‐
glaries, but also run‐of‐the‐mill burglaries involving an un‐
armed offender, an unoccupied building, and no use or
threat of force.” Taylor v. United States, supra, 495 U.S. at 597;
see also United States v. Bonilla, supra, 687 F.3d at 192 (“the
[Supreme] Court declined to limit the term ‘burglary’ to a
special subclass of burglaries, either those that would have
been burglaries at common law, or those that involve espe‐
cially dangerous conduct”) (citing Taylor v. United States, su‐
pra, 495 U.S. at 598); United States v. Bennett, 472 F.3d 825,
833–34 (11th Cir. 2006) (rejecting argument that, because
burglaries “were not serious enough” and involved no risk
of violence to “human beings” they were invalid predicates);
United States v. Martinez, 122 F.3d 421, 424 (7th Cir. 1997)
(“an unarmed generic burglary of an unoccupied, nonresi‐
dential structure, without the use or threat of force, qualifies
as a violent felony under the Act”), citing United States v.
Gallman, 907 F.2d 639, 644‐45 (7th Cir. 1990).
Consider the following example: A thief picks the front‐
door lock of a house, enters, and steals property that he finds
in the house. He does no damage to the lock. He “breaks”
nothing. But obviously he is a burglar. He has used force to
enter a house for an unlawful purpose, albeit without de‐
stroying anything. Suppose instead he breaks a small win‐
dowpane in the door, reaches in, and unlocks the door from
the inside, then enters and steals. He is more of a burglar be‐
No. 15‐3667 5
cause he broke something? Is breakage a condition of bur‐
glary? Would the reader of this opinion feel more comforta‐
ble knowing that the burglar who stole the wallet on his
dresser had picked the lock of his front door rather than
forcing the door open by pushing on it? The important point
is that the entry is unlawful, which is to say without authori‐
zation—the practical equivalent of the older term “breaking
and entering.”
There is no tension in this case between Johnson and
Descamps because the sentencing court did not need to resort
to the residual clause of the Armed Criminal Act in order to
determine that Dawkins’ prior conviction for burglary was a
conviction for a crime of violence, for it was a conviction for
“burglary” as defined by the Supreme Court in the Taylor
decision.
And so we deny authorization and dismiss Dawkins’ ap‐
plication.
RIPPLE, Circuit Judge. I sincerely regret that I cannot join
my esteemed colleagues in their disposition of this motion.
In my view, it raises an important question under the Su‐
preme Court’s decisions in Johnson v. United States, 135 S. Ct.
2551 (2015) and Descamps v. United States, 133 S. Ct. 2276
(2013) that we ought to address more carefully than the time
constraints statutorily imposed on our consideration of mo‐
tions under 28 U.S.C. § 2244(b)(3)(B) permit.
The district court imposed a career offender enhance‐
ment under the Guidelines on John Dawkins because of his
prior state convictions for carjacking and “residential bur‐
glary.” He now seeks to challenge that designation based on
Johnson, which held that the residual clause of the Armed
6 No. 15‐3667
Career Criminal Act (“ACCA”) is unconstitutionally vague.
135 S. Ct. at 2557. Mr. Dawkins contends that, were it not for
the identically worded residual clause found in the career‐
offender guideline, U.S.S.G. § 4B1.2(a), he could not have
been sentenced as a career offender.
My colleagues believe that Johnson could not possibly
have any impact on Mr. Dawkins’s sentence “because his
sentence did not rely on the residual clause.” In their view,
Mr. Dawkins’s prior convictions constituted offenses that are
listed under U.S.S.G. § 4B1.2(a)(1) and § 4B1.2(a)(2). That
conclusion deserves more in‐depth examination. Mr. Daw‐
kins well may be able to show that, in determining his status
as a career offender, the decisions of the sentencing court, as
well as the reviewing courts, can only be justified by reliance
on the residual clause. Because Mr. Dawkins has made a
prima facie showing that his prior conviction of “residential
burglary” was not a crime listed under U.S.S.G. § 4B1.2(a)(2),
he can satisfy the requirements of 28 U.S.C.
§ 2244(b)(2)(B)(ii) and should have the opportunity to pre‐
sent his claim to the district court.
In Taylor v. United States, 495 U.S. 575 (1990), the Supreme
Court adopted a “formal categorical approach” for deter‐
mining when a defendant’s prior conviction counts as one of
the ACCA’s enumerated predicate offenses. Id. at 600. This
approach also applies to the career offender guidelines. See,
e.g., Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015);
United States v. Woods, 576 F.3d 400, 403–04 (7th Cir. 2009).
Sentencing courts must only look at the elements of the stat‐
ute of the defendant’s prior convictions, and not “the partic‐
ular facts underlying those convictions.” Taylor, 495 U.S. at
600. If the statute in question has the same elements as the
No. 15‐3667 7
“generic” crime, then the prior conviction qualifies as a
“crime of violence” under the sentencing guidelines. Brown
v. Caraway, 719 F.3d 583, 590 (7th Cir. 2013); see also Taylor,
495 U.S. at 599.1 However, if the statute defines the crime
more broadly than the generic offense, then the conviction
will not qualify.
Therefore, to qualify as one of the listed offenses in
§ 4B1.2(a)(2), Mr. Dawkins’s prior conviction of burglary
must be under a statute that incorporates every element of
“generic burglary.” In particular, the statute must include
the “element of breaking and entering or similar unlawful
conduct.” Descamps, 133 S. Ct. at 2292; see also id. at 2285–86
(holding that a conviction under California Penal Code 459
cannot serve as an ACCA predicate, because one need not
prove that a defendant broke and entered). My colleagues
believe that entering a building “without authority” satisfies
this element under Taylor. However, the Justices in Descamps
clarified that generic burglary “requires an unlawful entry
along the lines of breaking and entering.” Id. at 2285 (empha‐
sis added).
In light of Taylor and Descamps, Mr. Dawkins’s applica‐
tion presents two significant problems that should be exam‐
ined by the district court in more detail. The first problem is
specific to the record; it is unclear under which Illinois bur‐
glary statute Mr. Dawkins was convicted. In a reply memo‐
randum, Mr. Dawkins’s attorney suggests that Mr. Dawkins
1 In unique situations where the statute has “alternative elements” that
effectively create several crimes, then the sentencing court can look be‐
yond the elements of the offense under a “modified categorical ap‐
proach,” and determine which elements formed the basis of the convic‐
tion. Descamps v. United States, 133 S. Ct. 2276, 2283–86 (2013).
8 No. 15‐3667
could either have been convicted under the Illinois general
burglary statute, 720 ILCS 5/19‐1, or the Illinois residential
burglary statute, 720 ILCS 5/19‐3. The plea agreement and
presentence report are similarly inconclusive, describing the
conviction as a “residential burglary” but failing to list the
statute of conviction. The district court should determine,
after further fact finding, Mr. Dawkins’s actual statute of
conviction.
The second problem will require a hard look at Illinois
law and an equally hard look at the implications of Descamps
and Johnson. At the outset, it is important to note that neither
of Illinois’s burglary statutes require “breaking and enter‐
ing.” Instead, both statutes include the phrase “without au‐
thority.”2 The district court should, in the first instance, de‐
termine whether, in light of Descamps, the phrase “without
2 In full, the Illinois burglary statute reads:
A person commits burglary when without authority he or
she knowingly enters or without authority remains with‐
in a building, housetrailer, watercraft, aircraft, motor ve‐
hicle, railroad car, or any part thereof, with intent to
commit therein a felony or theft. This offense shall not in‐
clude the offenses set out in Section 4‐102 of the Illinois
Vehicle Code.
720 ICLS 5/19‐1(a). The Illinois residential burglary statute reads:
A person commits residential burglary when he or she
knowingly and without authority enters or knowingly
and without authority remains within the dwelling place
of another, or any part thereof, with the intent to commit
therein a felony or theft. This offense includes the of‐
fense of burglary as defined in Section 19‐1.
720 ILCS 5/19‐3(a).
No. 15‐3667 9
authority” is sufficiently similar to the “breaking and enter‐
ing” element of generic burglary. Descamps, 133 S. Ct. at
2285–86. In deciding Descamps, the Justices quite firmly dis‐
approved of predicating a career offender enhancement on a
California statute that, like the Illinois statutes, did not in‐
clude the generic common law elements of “breaking and
entering.” Id. In addition, the Illinois Supreme Court has de‐
clared that the statutory language “without authority” estab‐
lishes that “a common‐law breaking is no longer an essential
element of the crime of burglary.” People v. Weaver, 243
N.E.2d 245, 248 (1968); see also Descamps, 133 S. Ct. at 2291
(“We may reserve the question whether, in determining a
crimeʹs elements, a sentencing court should take account not
only of the relevant statute’s text, but of judicial rulings in‐
terpreting it.”).
As my colleagues observe, we have previously held that
the Illinois residential burglary statute contains the elements
of generic burglary. See, e.g., United States v. Thorton, 463 F.3d
693, 701 (7th Cir. 2006); United States v. Hoults, 240 F.3d 647,
651 (7th Cir. 2001); United States v. King, 62 F.3d 891, 896 (7th
Cir. 1995). However, these earlier cases did not consider the
“breaking and entering” element of generic burglary, and
may require a reevaluation in light of Descamps. After
Descamps, it is far from clear that entering a building “with‐
out authority” constitutes “an unlawful entry along the lines
of breaking and entering.” Descamps, 133 S. Ct. at 2285. It
may well be that the amount of force required to constitute a
“breaking and entering” under Descamps can be minimal,
such as picking a lock or breaking a window, but, under
Descamps, the element must be satisfied.
10 No. 15‐3667
If Mr. Dawkins’s burglary conviction does not fall within
the definition of “generic burglary,” then the sentencing
court, and all reviewing courts, necessarily relied on the re‐
sidual clause in the career‐offender guideline when it adjust‐
ed Mr. Dawkins’s sentence. But the advent of Johnson would
preclude such reliance. We therefore should allow the dis‐
trict court to determine whether Mr. Dawkins’s prior convic‐
tion actually constituted a listed offense under the guide‐
lines, and, subsequently, whether Mr. Dawkins has a viable
claim under Johnson.
Motions to file successive collateral proceedings in the
wake of Johnson have created a briar patch for our motions
practice. There are many unanswered questions to be decid‐
ed. Up to now, while rejecting those motions where the un‐
derlying convictions clearly do not implicate the residual
clause, we have demonstrated great caution by permitting
those who present a plausible claim to file their actions in
the district court to ensure that the matter is carefully exam‐
ined. Today, the court deviates from that approach.
Mr. Dawkins’s application presents significant questions of
fact and law and the stakes are high in terms of the human
costs to Mr. Dawkins if, as he claims, he is unfairly branded
as a career offender. Resolution of the tension between Tay‐
lor and Descamps, articulation in precise tenor of the amount
of force required, and the continued vitality of our case law
interpreting Taylor before the advent of Descamps are hardly
the work of a motions panel entertaining a motion under 28
U.S.C. § 2244(b). I therefore would grant the motion and au‐
thorize the district court to consider Mr. Dawkins’s pro‐
posed claim. I respectfully dissent.