Sentencing – Ehancement

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7^th Circuit Court of Appeals

Case Name: United States of America v. Justin Edwards; United States of America v. Ryan Pouliot

Case No.: 15-2373; 152374; 15-2552

Officials: POSNER, MANION, and SYKES, Circuit Judges.

Focus: Sentencing – Ehancement

Appellant’s argue that prior burglary conviction does not count as crime of violence.

“These two appeals illustrate a practical difficulty that can arise in applying the Mathis/Descamps rule. In the state-court proceedings against Edwards and Pouliot, the complaint and information specify that each defendant was charged with burgling a dwelling. If Wisconsin law required that all facts alleged in the charging documents be proved to a jury beyond a reasonable doubt, we could conclude that “dwelling” is an element. But because the charging documents may allege additional facts, the inclusion of “dwelling” tells us nothing about whether it’s an element of burglary or simply a factual description of the type of enclosed structure the defendant entered. Edwards’s plea colloquy is similarly unhelpful: It includes a recitation of the “elements of burglary as they apply to [Edwards’s] case.” (Emphasis added.) In short, the record materials simply do not speak to whether “building” and “dwelling” are elements or means. Left with only the text and structure of Wisconsin’s burglary statute, we conclude that subsection (a) lists alternative means rather than elements and is therefore indivisible. That conclusion resolves this appeal: The elements of the crime of conviction “cover a greater swath of conduct” than the elements of the Guidelines offense, so the defendants’ burglary convictions cannot serve as predicate offenses under § 2K2.1(a). Mathis, 136 S. Ct. at 2251. Edwards and Pouliot are entitled to resentencing.

Vacated and remanded for resentencing

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.