October 5, 2016
from the United States District Court for the Central
District of Illinois No. 15-30041 - Sue E. Myerscough, Judge.
Bauer, Flaum, and Kanne, Circuit Judges.
Haney pled guilty to possessing a gun as a felon.
See 18 U.S.C. § 922(g)(1). The district court
found that Haney had at least three prior convictions that
qualified as "violent felonies" under the Armed
Career Criminal Act and sentenced him to the mandatory
minimum of fifteen years' imprisonment. See id.
§ 924(e)(1). On appeal Haney argues that, in light of
recent decisions by this court and the Supreme Court, his
prior convictions for burglary in Illinois are not
appropriate predicates under the ACCA. We agree, vacate the
district court's judgment, and remand for resentencing.
in Illinois discovered a gun in Haney's van during a
routine traffic stop. Haney was a convicted felon at the
time, so he was charged with and pled guilty to a violation
of 18 U.S.C. § 922(g)(1).
probation officer prepared a presentence investigation report
and recommended that Haney be sentenced as an armed career
criminal. To qualify for that status, a defendant must have
prior convictions for violent felonies committed on three
different occasions. See 18 U.S.C. § 924(e)(1).
The statute defines a violent felony as any crime punishable
by more than a year in prison that "(i) has as an
element the use, attempted use, or threatened use of physical
force against the person of another; or (ii) is burglary,
arson, or extortion, [or] involves use of explosives."
Id. § 924(e)(2)(B). The presentence report
identified three predicate convictions: (1) burglary of an
Illinois store in 1975 in violation of 38 ILCS § 19-1
(1973); (2) armed bank robbery in the Northern
District of Illinois in 1977; and (3) aggravated assault in
Pennsylvania in 1990. The report also listed that Haney had
an additional conviction for burglary in Illinois in 1972 and
two additional convictions for aggravated assault in
Pennsylvania in 1990. But the report did not cite those
additional convictions as potential predicates.
argued that his convictions for burglary could not serve as
predicates under the ACCA, citing three Supreme Court cases:
Taylor v. United States, 495 U.S. 575 (1990),
Descamps v. United States, 133 S.Ct. 2276 (2013),
and Johnson v. United States, 135 S.Ct. 2551 (2015).
In Taylor, the Court explained that
"burglary" in § 924(e)(2)(B)(ii) refers to
burglary in the "generic sense, " which
"contains at least the following elements: 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. In Descamps, the Court concluded that a
California burglary statute could not serve as a predicate
offense under the ACCA because the statute was broader than
generic burglary in that it did not require an unlawful
breaking and entering, as most burglary laws do. 133 S.Ct. at
2285-86. And in Johnson, the Court declared
unconstitutionally vague the ACCA's "residual
clause, " i.e., a part of § 924(e)(2)(B)(ii) that
defined violent felonies as offenses involving "conduct
that presents a serious potential risk of physical injury to
another." 135 S.Ct. at 2563. In light of these
precedents, Haney argued that his convictions for burglary
are not violent felonies because (1) the relevant statute
does not have as an element a use or threat of physical
force, as required under § 924(e)(2)(B)(i); (2) the
statute does not have as an element an unlawful breaking and
entering as required to constitute "burglary" under
§ 924(e)(2)(B)(ii); and (3) after Johnson, a
conviction is not a violent crime merely because it presents
a "serious potential risk of physical injury to another,
" § 924(e)(2)(B)(ii). Haney did not challenge the
report's conclusion that his convictions for armed bank
robbery and aggravated assault were violent felonies.
district court overruled Haney's objection to his
designation as an armed career criminal, noting that we
already had decided that a district court need not rely on
the ACCA's problematic residual clause to count
residential burglary in Illinois as a violent felony, see
Dawkins v. United States, 809F.3d 953, 954-56 (7th Cir.
2016) (per curiam) (denying application to file successive
petition under 28 U.S.C. § 2255). The dissent in
Dawkins, however, expressed concern that
Johnson and Descamps may have undermined
our decisions interpreting Taylor. 809 F.3d at
956-58 (Ripple, J., dissenting). Although the district court
agreed with the dissent-opining that "under
Descamps, a conviction for burglary in Illinois
should not qualify as a violent felony for purposes of the
ACCA"-the court concluded that it was bound by the
majority's decision in Dawkins. The court
therefore sentenced Haney as an armed career criminal and
imposed the mandatory minimum sentence of fifteen years'
appeal, the parties now agree that, given recent developments
in the law, Haney's burglary convictions cannot count as
predicate convictions under the ACCA. They come to this
conclusion, however, for reasons different than those argued
below. Now, the parties focus on the 1973 burglary
statute's "locational element[s]." Mathis
v. United States, 136 S.Ct. 2243, 2250 (2016). In
Mathis the Supreme Court declared that burglary in
Iowa does not qualify as a predicate violent felony offense
under the ACCA because it is broader than the
"generic" offense of burglary listed in §
924(e)(2)(B)(ii) - generic burglary requires unlawful entry
into a building or other structure, whereas the Iowa burglary
statute also includes entries into vehicles. 136 S.Ct. at
2250-51, 2257 (2016). And in United States v.
Edwards this court, applying Mathis, concluded
that Wisconsin's burglary statute also does not
constitute a crime of violence under the Sentencing
Guidelines for similar reasons. Nos. 15-2552, 15-2373 &
15-2374, 2016 WL 4698952, at *4-6 (7th Cir. Sept. 8, 2016)
(finding Wisconsin's burglary statute-proscribing
burglary of locations such as "building[s] or
dwelling[s] ... enclosed railroad car[s] ... [and] enclosed
portion[s] of any ship or vessel" - "cover[s] a
greater swath of conduct" than the elements of the
Guidelines offense (citing Mathis, 136 S.Ct. at
2251)). The Illinois burglary statute at the time of
Haney's 1975 conviction, the parties agree, similarly
included locations other than a "building or other
structure, " falling outside the "generic"
offense as defined by Taylor.
agree with the parties that Haney's Illinois burglary
convictions are not violent felonies under the ACCA. When
Haney was twice convicted of burglary in the early 1970s, the
relevant statute applied not only to buildings but also to
vehicles, such as "housetrailer[s], watercraft,
aircraft, motor vehicle[s] ... [and] railroad car[s]."
38 ILCS § 19-1 (1971); id § 19-1 (1973);
id. § 19-1 (1975); see also United States
v. Hope, 906 F.2d 254, 262 n.5 (7th Cir. 1990) (citing
38 ILCS § 19-1 (1975)). So, like the Iowa statute at
issue in Mathis, Haney's statute of conviction
is broader than generic burglary. See Mathis, 136
S.Ct. at 2250-51. And the locations described in the older
versions of the statute appear to represent "multiple
means of fulfilling its locational element"-unlike the
contemporary burglary statute, 720 ILCS 5/19-1, which imposes
different penalties depending on the location in which the
burglary occurs, constituting separate elements that could
render the statute divisible and subject to the
modi-fied-categorical approach. See Mathis, 136
S.Ct. at 2250. Thus, neither of Haney's burglary
convictions are appropri- ate predicates under the
ACCA. See Edwards, 2016 WL 4698952, at
*6; see also United States v. Thome, No. 15-1249,
2016 WL 4896375, at *1 (8th Cir. Sept. 15, 2016) (vacating
sentence in light of Mathis where defendant was
convicted under Florida burglary statute); United States
v. White, No. 15-4096, 2016 WL 4717943, at *6-8 (4th
Cir. Sept. 9, 2016) (same with West Virginia statute).
government maintains, however, that Haney is an armed career
criminal because of his prior aggravated-assault convictions.
Haney was thrice convicted under a Pennsylvania statute that
provides that a defendant commits aggravated assault if he
"attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to the
value of human life." 18 Pa. CONS. Stat. §
2702(a)(1) (1990). Haney argues that the convictions do not
satisfy § 924(e)(2)(B)(i) because the statute does not
require an intentional use or threat of force.
not decide whether aggravated assault from Pennsylvania is a
violent felony because a remand for resentencing is required
either way. Even assuming that Haney's convictions for
aggravated assault are violent felonies, Haney would still be
one predicate short of being an armed career criminal if, as
Haney argues, all three of his assaults occurred on the same
"occasion." See 18 U.S.C. §
924(e)(1). And that issue was never addressed at sentencing.
government bears the burden of proving by a preponderance of
the evidence that the three convictions were "committed
on occasions different from one another." See
Kirkland v. United States,687 F.3d 878, 895 (7th Cir.
2012) (quoting 18 U.S.C § 924(e)(1)). "[C]rimes
that occur simultaneously will be deemed to have occurred on
a single occasion, " see United States v.
Elliott,703 F.3d 378, 383 (7th Cir. 2012), and
"the evidentiary restrictions set forth in Shepard
v. United States apply to the 'different
occasion' inquiry." Kirkland, 687 F.3d at
883 (citing Shepard v. United States,544 U.S. 13
(2005)). During sentencing the parties focused their
attention on the burglary convictions, so the government did
not argue-much less submit Shepard-approved
documents to establish-that Haney committed his three
aggravated assaults on different occasions. We granted Haney
permission to supplement the record on appeal with the
informations and verdict forms for the three
aggravated-assault cases. But all these documents reveal
about the offenses is that ...