Statutory Interpretation – ACCA

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7^th Circuit Court of Appeals

Case Name: United States of America v. Dennis Franklin, et al.

Case No.: 16-1580; 16-1872

Officials: KANNE and HAMILTON, Circuit Judges.

Focus: Statutory Interpretation – ACCA

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. Our question, see below 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.

We invite the Wisconsin Supreme Court to revise the question if it judges that to be appropriate. The facts of these two federal cases are set forth in our panel opinion, 884 F.3d 331 (7th Cir. 2018), and in the district court’s sentencing transcripts. We also submit to the Wisconsin Supreme Court the briefs and records in both of these appeals. While we await a response from the Wisconsin Supreme Court, we will keep these appeals pending in our court, subject to the pending petition for rehearing en banc.

Granted and Vacated

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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.