Sentencing Guidelines

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7^th Circuit Court of Appeals

Case Name: Jerry L. Van Cannon v. United States of America

Case No.: 17-2631

Officials: SYKES and HAMILTON, Circuit Judges, and LEE, District Judge

Focus: Sentencing Guidelines

In 2009 Jerry Van Cannon pleaded guilty to possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). He was sentenced under the Armed Career Criminal Act (“ACCA”), which imposes higher penalties on § 922(g) violators who have three prior convictions for a “violent felony” or “serious drug offense.” Id. § 924(e). Van Cannon’s presentence report identified five qualifying ACCA predicates, including Iowa convictions for burglary and attempted burglary and a Minnesota conviction for second-degree burglary. The district judge accepted this tally and imposed the mandatory minimum 15-year prison term. In 2015 the Supreme Court invalidated, on vagueness grounds, the provision in the “violent felony” definition known as the “residual clause.” Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). Within a year Van Cannon filed for relief under 28 U.S.C. § 2255 in light of Johnson. A few days later, the Supreme Court held that Iowa burglary does not qualify under another part of the definition. Mathis v. United States, 136 S. Ct. 2243, 2257 (2016).

The government conceded the Johnson error. The Iowa attempted burglary was a residual-clause offense and no longer counted toward Van Cannon’s ACCA total. And Mathis knocked out the Iowa burglary. Still, three predicates remained, so the government argued that the Johnson error was harmless. The judge agreed and denied § 2255 relief. A few weeks later, the judge withdrew her order. A recent Eighth Circuit opinion had cast doubt on whether one of the remaining predicates—the Minnesota second-degree burglary—still counted after Mathis. See United States v. McArthur, 836 F.3d 933 (8th Cir. 2016), amended & superseded by United States v. McArthur, 850 F.3d 925 (8th Cir. 2017). The judge appointed counsel and ordered briefing. Van Cannon argued that Minnesota second-degree burglary is not an ACCA predicate; the government maintained that it is. The judge ultimately sidestepped the issue, concluding instead that Van Cannon’s claim was untimely.

We reverse. First, Van Cannon’s § 2255 claim was timely; he properly challenged his sentence within one year of Johnson. Second, we agree with the Eighth Circuit that the Minnesota crime of second-degree burglary does not qualify as an ACCA predicate. See United States v. Crumble, 878 F.3d 656, 661 (8th Cir. 2018); see also McArthur, 850 F.3d at 937–40. A burglary counts for ACCA purposes only if its elements match the elements of “generic” burglary, defined as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). The Minnesota statute covers a broader swath of conduct than generic burglary. It permits conviction without proof of burglarious intent—that is, without proof that the offender had the intent to commit a crime at the moment he unlawfully entered or unlawfully “remained in” the building or structure. Accordingly, the Minnesota burglary drops out of the ACCA total, leaving only two predicates. Van Cannon is entitled to resentencing.

Reversed and Remanded

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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.