In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐1580 & 16‐1872
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DENNIS FRANKLIN & SHANE SAHM,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Western District of Wisconsin.
Nos. 3:14‐CR‐00128 & 3:15‐CR‐00110 — James D. Peterson, Chief Judge.
____________________
SUBMITTED FOR REHEARING APRIL 11, 2018 —
DECIDED JULY 17, 2018
____________________
Before KANNE and HAMILTON, Circuit Judges.*
PER CURIAM. The defendant‐appellants’ petition for panel
rehearing is GRANTED, and the opinion and judgment is‐
sued February 26, 2018, are VACATED. Pursuant to Circuit
* Circuit Judge Posner heard argument but retired on September 2, 2017,
and did not participate in the decision of this case. A quorum of the panel
continues to hear and decide the case under 28 U.S.C. § 46(d).
2 Nos. 16‐1580 & 16‐1872
Rule 52 and Wis. Stat. § 821.01, we request that the Wisconsin
Supreme Court answer a question of Wisconsin law that
should control our decision in these appeals of federal sen‐
tences under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). See generally 884 F.3d 331 (7th Cir. 2018) (panel opin‐
ion).
The question concerns the location provisions of the Wis‐
consin burglary statute, which provides as follows:
Whoever intentionally enters any of the follow‐
ing places without the consent of the person in
lawful possession and with intent to steal or
commit a felony in such place is guilty of a Class
F felony:
(a) Any building or dwelling; or
(b) An enclosed railroad car; or
(c) An enclosed portion of any ship or vessel; or
(d) A locked enclosed cargo portion of a truck or
trailer; or
(e) A motor home or other motorized type of home
or a trailer home, whether or not any person is
living in any such home; or
(f) A room within any of the above.
Wis. Stat. § 943.10(1m).
Our question, see below at 14, is whether the different lo‐
cation subsections (a)–(f) identify alternative elements of bur‐
glary or instead only identify alternative means of committing
burglary. See, e.g., State v. Hendricks, 379 Wis.2d 549, 565–72,
Nos. 16‐1580 & 16‐1872 3
906 N.W.2d 666, 673–77 (Wis. 2018) (deciding similar question
under child enticement statute, Wis. Stat. § 948.07).
The question may seem obscure or even arcanely meta‐
physical, at least without a fair amount of background infor‐
mation about the federal Armed Career Criminal Act, its ref‐
erence to burglary convictions, and several related cases. (See
below.) But, despite the layers of federal sentencing precedent
that frame this issue, this is at bottom a controlling question
of State criminal law. The answer to this question controls not
only the validity of these appellants’ federal sentences; it also
affects how Wisconsin juries must be instructed, what jurors
must agree upon unanimously, and how double jeopardy
protections may apply.
I. The Armed Career Criminal Act
The key substantive provision of the Armed Career Crim‐
inal Act states:
In the case of a person who violates section
922(g) of this title [unlawful possession, receipt,
shipment, or transportation of firearms] and has
three previous convictions by any court referred to
in section 922(g)(1) of this title for a violent felony
or a serious drug offense, or both, committed on
occasions different from one another, such per‐
son shall be fined under this title and impris‐
oned not less than fifteen years[.]
18 U.S.C. § 924(e)(1) (emphasis added).
The normal sentence for unlawful possession of a firearm
under § 922(g) is a maximum of ten years in prison. See 18
U.S.C. § 924(a)(2). A defendant with three qualifying convic‐
4 Nos. 16‐1580 & 16‐1872
tions for violent felonies, however, falls under the § 924(e) en‐
hancement quoted above and faces a mandatory minimum of
fifteen years in prison. See United States v. Bennett, 863 F.3d
679, 680 (7th Cir. 2017). The maximum becomes life in prison.
What qualifies as a conviction for a “violent felony” under
§ 924(e)? The statutory definition reads:
the term “violent felony” means any crime pun‐
ishable by imprisonment for a term exceeding
one year … that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the per‐
son of another; or
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct
that presents a serious potential risk of physical
injury to another[.]
18 U.S.C. § 924(e)(2)(B) (emphasis added).
A. “Generic” Burglary and the “Categorical Method”
So a felony conviction for “burglary” counts toward the
three violent felonies that can trigger the severe sentences un‐
der the Armed Career Criminal Act.
What counts as a “burglary”? The federal statute contains
no specific definition. The Supreme Court of the United States
addressed that problem in Taylor v. United States, 495 U.S. 575
(1990). State burglary laws vary a great deal: some do not re‐
quire unlawful entry; others extend the crime to vehicles and
even vending machines. Id. at 590–91, 599, and 580, citing
United States v. Hill, 863 F.2d 1575, 1582 n.5 (11th Cir. 1989).
Taylor held that a State’s label of “burglary” does not control.
Nos. 16‐1580 & 16‐1872 5
Id. at 590. Instead, Taylor adopted a “generic” definition of
burglary for purposes of § 924(e): “an unlawful or unprivi‐
leged entry into, or remaining in, a building or other struc‐
ture, with intent to commit a crime.” Id. at 598.
Taylor also decided how federal courts should analyze a
State’s burglary statute, and that method can be counter‐intu‐
itive. Taylor held that courts must use a formal “categorical
approach” that “look[s] only to the fact of conviction and the
statutory definition of the prior offense.” Id. at 602. The cate‐
gorical approach focuses on “the elements of the statute of
conviction, not … the facts of each defendant’s conduct.” Id.
at 601. Limiting the inquiry to statutory elements flows from
the text of the Armed Career Criminal Act, which “refers to ‘a
person who … has three previous convictions’ for—not a per‐
son who has committed—three previous violent felonies or
drug offenses.” Id. at 600 (emphasis added), quoting 18 U.S.C.
924(e)(1).
Taylor added, however, that the sentencing court could “go
beyond the mere fact of conviction in a narrow range of cases
where a jury was actually required to find all the elements of
generic burglary”—such as entry of a building. In this narrow
range of cases, the court may look to charging documents or
jury instructions to determine the crime of conviction. Id. at
602. This is known as the “modified categorical approach,”
which is at the heart of these appeals. We’ll come back to it
after explaining the facts of these appeals.
In these appeals, both appellants, Dennis Franklin and
Shane Sahm, were sentenced for the federal crime of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). Both were sentenced as armed career criminals
under 18 U.S.C. § 924(e). That raised the statutory sentencing
6 Nos. 16‐1580 & 16‐1872
range from a maximum of ten years in prison to a minimum
of fifteen years in prison and a maximum of life in prison. The
decisive prior convictions for both Franklin and Sahm were
Wisconsin burglary convictions under Wis. Stat. § 943.10(1m).
There is no doubt that what Franklin and Sahm actually
did to earn their prior convictions was burglarize buildings or
structures, as prohibited by § 943.10(1m)(a). Their actions fit
within the “generic burglary” definition adopted in Taylor—
“an unlawful or unprivileged entry into, or remaining in, a
building or other structure, with intent to commit a crime.”
But under the categorical method adopted in Taylor, what
counts is not what they actually did but the statutory defini‐
tion of the crime. Taken as a whole, Wis. Stat. § 943.10(1m) is
considerably broader than the “generic burglary” definition
adopted in Taylor. The Wisconsin statute reaches burglaries of
boats, trucks, and trailers, see id. at (c)–(e), but the Taylor def‐
inition does not. Thus, if we apply the “categorical” approach
to the whole burglary statute, then Franklin and Sahm cannot
be sentenced as armed career criminals under 18 U.S.C.
§ 924(e). See, e.g., Descamps v. United States, 570 U.S. 254, 261
(2013) (conviction under California burglary statute that did
not require unlawful entry did not count as violent felony un‐
der Armed Career Criminal Act, even where defendant ad‐
mitted he had actually broken into and entered a building to
commit a crime).
B. “Divisibility” and the “Modified Categorical Approach”
That reasoning takes us, in this field of federal statutory
sentencing enhancements based on prior convictions, to the
concepts of “divisibility” and the “modified categorical ap‐
proach.” The categorical approach is straightforward enough
Nos. 16‐1580 & 16‐1872 7
if the state statute of conviction contains only one set of ele‐
ments defining a single crime. The sentencing court just com‐
pares that set to Taylor’s generic burglary to see if the elements
match. The categorical approach is more difficult to apply if
the statute in question is phrased alternatively, as many bur‐
glary statutes are—including Wisconsin’s.
The Supreme Court has explained that alternatively
phrased statutes come in two types: (1) those that list alterna‐
tive elements (thus defining more than one crime within a sin‐
gle statute) and (2) those that list alternative means of commit‐
ting an element of a single crime. See Mathis v. United States,
136 S. Ct. 2243, 2249 (2016). If the statutory alternatives are
different elements, then the statute is considered “divisible” in
the sense that it divides into multiple crimes. Mathis, 136 S. Ct.
at 2249. For that kind of statute, the federal court must “deter‐
mine what crime, with what elements, a defendant was con‐
victed of” before counting the conviction as a predicate under
the Armed Career Criminal Act. Id.
This brings into play the “modified categorical approach”
mentioned above. It permits the sentencing court to review “a
limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy),” but only for
the limited purpose of determining whether the elements of
the state crime of conviction match (or are narrower than) the
elements of Taylor’s generic burglary. Id. at 2249, 2256. But the
modified categorical approach has no role to play if an alter‐
natively phrased statute describes different factual means of
committing an element of a single crime. Recall that under
Taylor the actual facts of the underlying case are off‐limits. Id.
at 2248. A statute of this latter type—one that lists alternative
means—is indivisible. If its alternatives cover a broader swath
8 Nos. 16‐1580 & 16‐1872
of conduct than Taylor’s generic burglary, then the conviction
does not qualify under the Act. Id. at 2251; see also Van Cannon
v. United States, 890 F.3d 656, 662–63 (7th Cir. 2018).
Mathis addressed the Iowa burglary statute. Like the Wis‐
consin statute, the Iowa statute extended to boats and vehi‐
cles, so it was broader than the federal “generic” burglary. The
Supreme Court held that the Iowa statute was not divisible
and thus could not support Armed Career Criminal Act sen‐
tences. That decision was easy in Mathis because the Iowa Su‐
preme Court had held that the different locations in the Iowa
statute were alternative means that did not require jury una‐
nimity. Mathis, 136 S. Ct. at 2256, citing State v. Duncan, 312
N.W.2d 519, 523 (Iowa 1981).
Subsection (1m)(a) of the Wisconsin burglary statute, cov‐
ering burglaries of buildings or dwellings, fits within the fed‐
eral generic burglary definition. In these appeals, the United
States has argued that the Wisconsin burglary statute is divisi‐
ble among the different subsections listing different locations
that are protected against burglarious entry. Charging docu‐
ments for both Franklin and Sahm show they were charged
with and convicted under § 943.10(1m)(a) for burglarizing
buildings or structures.
The government thus argues that their convictions fall
within Taylor’s generic burglary definition and they were
properly sentenced as armed career criminals. That argument
is valid if—and only if—the Wisconsin burglary statute is di‐
visible in the sense meant by Mathis and Taylor. And the di‐
visibility question in turn depends on the elements/means
distinction we’ve just described: Are the different locations
listed in subsections (1m)(a)–(f) distinct legal elements (so the
burglary statute actually defines multiple crimes), or are they
Nos. 16‐1580 & 16‐1872 9
different factual means of committing a single crime that has
a locational element broad enough to cover all of the listed
locations?
A couple of examples may illustrate the problem and its
implications regarding jury unanimity, multiplicity, and dou‐
ble‐jeopardy. First, suppose there is a factual question about
just where a burglary took place. A homeowner‐victim testi‐
fies that someone stole a computer, but he is not sure whether
the stolen item was taken from the garage or the recreational
vehicle parked outside in the driveway. See Wis. Stat.
§ 943.10(1m)(a) & (e). To convict for burglary, must the State
prove, and must the jury decide, beyond a reasonable doubt
whether it was the garage or the RV that was burglarized?
Or, to show the issues posed by overlaps among the dif‐
ferent subsections, suppose a burglar enters the living quar‐
ters of a houseboat without consent and with the requisite in‐
tent to steal or commit a felony. Could a Wisconsin prosecutor
charge him with four crimes: burglary in violation of subsec‐
tion (1m)(a) (because the place he entered was a dwelling);
burglary in violation of subsection (1m)(c) (because the place
he entered was also a vessel); and two counts of burglary in
violation of subsection (1m)(f) (because the place he entered
was both a room within a dwelling and a room within a ves‐
sel)? Could a court sentence the burglar for more than one
burglary? And how should the court instruct the jury in such
a case? See, e.g., State v. Anderson, 219 Wis.2d 739, 580 N.W.2d
329 (Wis. 1998) (discussing problem of multiplicity).
II. Elements or Means in Wisconsin? The Parties’ Arguments
In trying to follow the method laid out in Mathis, our panel
opinion noted that we found no definitive holding from the
10 Nos. 16‐1580 & 16‐1872
Wisconsin Supreme Court or other state courts, nor did we
find unmistakable signals in the statute itself, such as differ‐
ent punishments. 884 F.3d at 334–35. Without such clear sig‐
nals, the choice between elements and means is more difficult.
For the convenience of the Wisconsin Supreme Court, we
summarize the arguments in the parties’ briefs.
The defendants argue that the burglary statute is similar
in relevant ways to the child enticement statute in State v. De‐
rango, 236 Wis.2d 721, 613 N.W.2d 833 (Wis. 2000), which held
that the different intentions in different subsections of Wis.
Stat. § 948.07 were only different means of committing one
crime, not different elements of different crimes. The defend‐
ants also rely on both the holding and reasoning of United
States v. Edwards, 836 F.3d 831 (7th Cir. 2016), where we held
that the first subsection of the Wisconsin burglary statute
(“building or dwelling”) was not internally divisible for simi‐
lar purposes under the then‐applicable U.S. Sentencing
Guideline provision for armed career criminals, which ap‐
plied to burglaries only of dwellings, not of other structures.
Based on Derango, the defendants also argue that the Wis‐
consin legislative drafting preference for using different sub‐
sections does not imply that the different subsections signal
different elements and different crimes. The defendants also
rely on our observation in Edwards that Wisconsin charging
documents are not useful in distinguishing between means
and elements. 836 F.3d at 837–38. Defendants point out that
Wisconsin charging documents often include non‐essential
factual details and can even be amended after trial to conform
to the evidence, see Derango, 236 Wis.2d at 750–52, 613 N.W.2d
at 847, which undermines the charging document’s reliability
Nos. 16‐1580 & 16‐1872 11
in identifying the elements the prosecution must prove be‐
yond a reasonable doubt. Defendants also point out that State
v. Hammer, 216 Wis.2d 214, 220–21, 576 N.W.2d 285, 287 (Wis.
App. 1997), held that a burglary defendant’s intended felony
is not an element, and the court observed that the language of
the statute indicated more generally “that the crime here is
one single offense with multiple modes of commission.”
The United States argues that the panel opinion was cor‐
rect and that the burglary statute clearly breaks out alterna‐
tive location elements for burglary, at least one of which a jury
must find unanimously and beyond a reasonable doubt. The
statute refers to the entry into “any of the following places,”
which is not specific until a charging instrument or jury in‐
struction identifies one of the following places from among
the different subsections. The government argues that the
Wisconsin Supreme Court’s decision in Derango does not pro‐
vide relevant guidance. The government reads Derango as
specific to the child enticement statute because it relied on the
nature of that crime, the role that intentions play (as distinct
from locations in the burglary statute), and statute‐specific
legislative history. See 236 Wis.2d at 732–35, 613 N.W.2d at
838–39. The government also argues there is much less over‐
lap among the burglary location subsections than among the
different intentions in the child‐enticement statute.
With respect to Edwards, the government argues that case
did not decide the elements v. means question for the different
subsections of the burglary statute, and that charging docu‐
ments from Wisconsin burglary cases in fact identify specific
subsections and provide reliable guidance for the location
charged, which tends to weigh in favor of treating the differ‐
ent subsections as alternative elements. The government also
12 Nos. 16‐1580 & 16‐1872
argues that Wisconsin’s pattern jury instructions signal the
different location subsections are different elements, requir‐
ing unanimous jury agreement on one location subsection.
See Wis. J.I.—Crim. § 1424 n.2.
Regarding Hammer, the government notes the state court
was addressing only the intended felony element, not the dif‐
ferent location subsections. The government also argues that
the legislative history of the burglary statute, in which the leg‐
islature broadened an earlier statute that covered only “any
structure,” supports treatment of the new, expanded alterna‐
tives as alternative elements. Along these lines, the govern‐
ment notes that the Wisconsin Supreme Court has held that
the phrase “with intent to steal or commit a felony” creates
two distinct crimes. Champlain v. State, 53 Wis.2d 751, 756 &
n.4, 193 N.W.2d 868, 872 & n.4 (Wis. 1972), abrogated on other
grounds, State v. Petrone, 161 Wis.2d 530, 550–58 & n.14, 468
N.W.2d 676, 683‐86 & n.14 (Wis. 1991). (Defendants contend
that Champlain is no longer good law even on the separate of‐
fense point, citing both Derango, 236 Wis.2d at 750–52, 613
N.W.2d at 847 and Hammer, 216 Wis.2d at 220, 576 N.W.2d at
287.)
III. Our Request
Like other federal courts, we often encounter questions of
State law. In most cases we simply do our best to decide the
cases before us without asking for help from the State courts.
Here, however, two factors persuade us to ask the Wisconsin
Supreme Court to step in.
First, the question of State law is a close one. Specific guid‐
ance from State law is limited, and both sides offer good rea‐
sons for interpreting the available signs in their favor. In our
Nos. 16‐1580 & 16‐1872 13
panel opinion, we agreed with the government, but the peti‐
tion for rehearing argues that our analysis did not give suffi‐
cient weight to the Wisconsin Supreme Court’s decision in De‐
rango, among other points. Upon further consideration, we
view the question of State law as closer than our panel opin‐
ion did. The Wisconsin courts have considered similar ques‐
tions in the context of other statutes and the felonious intent
requirement of burglary, see, e.g., State v. Hendricks, 379
Wis.2d 549, 565–72, 906 N.W.2d 666, 675–76 (Wis. 2018), but it
is not clear which of the “competing cases” from these other
contexts “should control the elements v. means question for
the burglary statute” and its location subsections. 884 F.3d at
336 n.3. In the end, only the Wisconsin Supreme Court can
decide this issue definitively.
Second, this issue of state law is important for both the
federal and state court systems, and a wrong decision on our
part could cause substantial uncertainty and confusion if the
Wisconsin Supreme Court were to disagree with us in a later
decision. The choice between elements and means is decisive
for Franklin and Sahm’s federal sentences, and a number of
other federal defendants may be affected directly. See also
United States v. Lamb, 847 F.3d 928, 932 (8th Cir. 2017) (holding
that Wisconsin burglary statute was divisible for purpose of
Armed Career Criminal Act conviction for defendant in Min‐
nesota), cert. denied, 138 S. Ct. 1438 (2018).
The answer to this question may also have significant
practical effects for at least some of the nearly 2,000 burglary
prosecutions in Wisconsin state courts every year. Those im‐
plications include the following. How should a jury be in‐
structed in a burglary trial? What facts must the prosecution
14 Nos. 16‐1580 & 16‐1872
prove beyond a reasonable doubt about the place the defend‐
ant entered unlawfully and with felonious purpose? What
must the jury agree on unanimously about the place? The gen‐
eral rule is that a jury must agree unanimously on each ele‐
ment of the charged crime, but not on particular means. The
answer also has implications for questions of multiplicity and
double‐jeopardy protections, which depend on the elements
of the crimes in question. See Blockburger v. United States, 284
U.S. 299 (1932). And the answer to the elements v. means
question will have practical consequences for prosecutors de‐
ciding how to charge a suspect and for defense counsel advis‐
ing clients about potential defenses and plea negotiations.
Pursuant to Wis. Stat. § 821.01 and our Circuit Rule 52, we
therefore request the Wisconsin Supreme Court to answer the
following question as a matter of Wisconsin law:
Whether the different location subsections of
the Wisconsin burglary statute, Wis. Stat.
§ 943.10(1m)(a)–(f), identify alternative ele‐
ments of burglary, one of which a jury must
unanimously find beyond a reasonable doubt to
convict, or whether they identify alternative
means of committing burglary, for which a
unanimous finding beyond a reasonable doubt
is not necessary to convict?
We invite the Wisconsin Supreme Court to revise the question
if it judges that to be appropriate. The facts of these two fed‐
eral cases are set forth in our panel opinion, 884 F.3d 331 (7th
Cir. 2018), and in the district court’s sentencing transcripts. We
also submit to the Wisconsin Supreme Court the briefs and
records in both of these appeals.
Nos. 16‐1580 & 16‐1872 15
While we await a response from the Wisconsin Supreme
Court, we will keep these appeals pending in our court, sub‐
ject to the pending petition for rehearing en banc.