Opinion
No. 16-1580 No. 16-1872
07-02-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNIS M. FRANKLIN, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHANE SAHM, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1 Before MICHAEL S. KANNE, Circuit Judge DAVID F. HAMILTON, Circuit Judge Appeal from the United States District Court for the Western District of Wisconsin No. 3:14-CR-00128 James D. Peterson, Chief Judge. Appeal from the United States District Court for the Western District of Wisconsin No. 3:15-CR-00110 James D. Peterson, Chief Judge.
ORDER
The Supreme Court of Wisconsin has answered the question of state law that this court certified to it. United States v. Franklin, 928 N.W.2d 545 (Wis. 2019). Burglary under Wisconsin law, Wis. Stat. § 943.10(1m), applies to burglaries of vehicles as well as buildings and dwellings. That means the state crime is broader than the federal generic crime of burglary that may serve as a predicate for enhanced offenses under the federal Armed Career Criminal Act, 18 U.S.C. § 924(e). See Mathis v. United States, 136 S. Ct. 2243 (2016) (Iowa burglary statute broader than federal generic burglary because it applies to burglaries of vehicles). In response to our request, the Supreme Court of Wisconsin has decided definitively that the state crime is not "divisible" among different locations for purposes of applying the Armed Career Criminal Act. As a result, the prior Wisconsin burglary convictions of defendants-appellants Dennis Franklin and Shane Sahm do not qualify as prior convictions for "violent felonies" to support their federal sentences under the Armed Career Criminal Act. The parties have submitted statements of position under Circuit Rule 52. They and we agree on the next step. The federal sentences for both Franklin and Sahm in these appeals are hereby VACATED and their cases are REMANDED to the district court for resentencing without applying the Armed Career Criminal Act, 18 U.S.C. § 924(e).