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.
Kanne and Hamilton, Circuit Judges. [*]
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).
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;
(f) A room within any of the above.
Wis. Stat. § 943.10(1m).
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).
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.
The Armed ...