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United States v. Franklin

United States Court of Appeals, Seventh Circuit

July 17, 2018

United States of America, Plaintiff-Appellee,
v.
Dennis Franklin & Shane Sahm, Defendants-Appellants.

          Submitted For Rehearing April 11, 2018

          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.

          Before Kanne and Hamilton, Circuit Judges. [*]

          PER CURIAM.

         The defendant-appellants' petition for panel rehearing is GRANTED, and the opinion and judgment issued February 26, 2018, are VACATED . Pursuant to Circuit 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 sentences under the Armed Career Criminal Act, 18 U.S.C. § 924(e). See generally 884 F.3d 331 (7th Cir. 2018) (panel opinion).

         The question concerns the location provisions of the Wisconsin burglary statute, which provides as follows:

Whoever intentionally enters any of the following 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 location subsections (a)-(f) identify alternative elements of burglary or instead only identify alternative means of committing burglary. See, e.g., State v. Hendricks, 379 Wis.2d 549, 565-72, 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 metaphysical, at least without a fair amount of background information about the federal Armed Career Criminal Act, its reference 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 ...


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