Dean Guenther v. Matthew Marske

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-3409

DEAN GUENTHER,

Petitioner-Appellant,

v.

MATTHEW MARSKE, Warden,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 17-cv-231 — Barbara B. Crabb, Judge.

____________________

ARGUED SEPTEMBER 30, 2020 — DECIDED MAY 12, 2021

____________________

Before SYKES, Chief Judge, and WOOD and BRENNAN,

Circuit Judges.

SYKES, Chief Judge. In 2005 Dean Guenther was convicted

of a federal firearms crime in Minnesota and was sentenced

as an armed career criminal based in part on his prior

Minnesota burglary convictions. His direct appeal failed in

the Eighth Circuit, as did his petition for collateral review

under 28 U.S.C. § 2255. He is currently serving his lengthy

sentence in a federal prison in Wisconsin. In 2017 Guenther

2 No. 17-3409

sought habeas relief under 28 U.S.C. § 2241 in the Western

District of Wisconsin. Relying on Mathis v. United States,

136 S. Ct. 2243 (2016), and United States v. McArthur, 850 F.3d

925 (8th Cir. 2017), he argued that his sentence is unlawful

because his Minnesota burglary convictions are not “violent

felonies” under the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e). The district judge denied the petition.

We reverse. A § 2255 motion in the sentencing court is

normally the exclusive method to collaterally attack a federal

sentence, but the “saving clause” in § 2255(e) provides a

limited exception. 1 The clause permits a prisoner to seek

§ 2241 habeas relief in the district where he is confined if

“the remedy by motion is inadequate or ineffective to test

the legality of his detention.” § 2255(e). We have construed

the saving clause to preserve a path for § 2241 relief in a

narrow set of circumstances—namely, when the prisoner

relies on an intervening statutory decision announcing a

new, retroactive rule that could not have been invoked in his

first § 2255 motion and the error is serious enough to amount

to a miscarriage of justice. See Chazen v. Marske, 938 F.3d 851,

856 (7th Cir. 2019) (synthesizing the doctrine).

Our decision in Chazen is analogous in all material re-

spects and makes clear that Guenther has satisfied most of

the requirements for the saving-clause gateway to § 2241.

The only question left unanswered by Chazen is whether

Guenther’s ACCA-enhanced sentence amounts to a miscar-

1 We usually refer to § 2255(e) as the “savings clause,” but the leading

authority on legal style recommends “saving clause” as the more precise

term. Saving Clause, GARNER’S DICTIONARY OF LEGAL USAGE (3d ed. 2011);

see also McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076,

1081–82 (11th Cir. 2017) (en banc).

No. 17-3409 3

riage of justice. That question folds into the merits of wheth-

er Guenther’s Minnesota burglary convictions are ACCA

predicates.

The parties disagree on whether the answer to this ques-

tion should come from the law of our circuit (the circuit of

confinement) or the Eighth Circuit (the circuit of conviction).

We declined to settle the choice-of-law debate in Chazen

because the government argued in the district court that the

law of the circuit of confinement—this circuit—should

control. Id. at 860. That position, if accepted, meant no relief.

Although the Eighth Circuit had held in McArthur that

Minnesota burglary is not an ACCA predicate, our circuit

had not addressed the question. By the time Chazen reached

this court, however, the tables had turned. McArthur’s validi-

ty had become clouded, and we had broadly concluded in

Van Cannon v. United States, 890 F.3d 656, 665 (7th Cir. 2018),

that Minnesota burglary is not an ACCA predicate. Chazen,

938 F.3d at 860.

In Chazen we held the government to the position it took

in the district court and applied the law of this circuit. Id. at

860–63. We follow the same approach here. Under

Van Cannon, Guenther’s Minnesota burglary convictions are

not ACCA predicates. We remand with instructions to grant

the habeas petition.

I. Background

In May 2005 a federal jury in the District of Minnesota

convicted Guenther of possessing a firearm as a felon in

violation of 18 U.S.C. § 922(g)(1). The offense usually carries

a maximum sentence of ten years in prison, id. § 924(a)(2),

but the ACCA increases the penalty to a 15-year minimum

4 No. 17-3409

and a maximum of life in prison if the defendant has three

prior convictions for a “violent felony,” id. § 924(e)(1).

Guenther’s presentence report (“PSR”) identified four

possible ACCA predicates: two convictions for first-degree

burglary (in 1990 and 1992), one for second-degree burglary

(in 1986), and one for kidnapping (in 1990), all under

Minnesota law.

The ACCA defines “violent felony” as any federal or

state crime punishable by a prison term exceeding one year

that “has as an element the use, attempted use, or threatened

use of physical force against the person of another,” id.

§ 924(e)(2)(B)(i) (the “elements clause”); or “is burglary,

arson, or extortion,” id. § 924(e)(2)(B)(ii) (the “enumerated

offenses clause”; or “otherwise involves conduct that pre-

sents a serious potential risk of physical injury to another,”

id. (the “residual clause”). At the time of sentencing,

Guenther’s burglary convictions qualified as ACCA predi-

cates under the enumerated-offenses clause, and his kidnap-

ping conviction qualified under the residual clause.2 The

district judge applied the enhanced penalties under the

ACCA and imposed a prison term of 327 months, the top of

the range under the Sentencing Guidelines.

The Eighth Circuit affirmed on direct appeal. In 2008

Guenther filed a pro se motion seeking collateral relief under

§ 2255, raising a claim of ineffective assistance of counsel and

also challenging his ACCA-enhanced sentence. The judge

denied the motion and declined to issue a certificate of

appealability. The Eighth Circuit likewise declined to certify

the case for appeal.

2 Each of these crimes is punishable by a prison term exceeding one year.

No. 17-3409 5

The legal landscape shifted following Guenther’s § 2255

motion. As we explained in Chazen, the doctrinal path is

quite circuitous. Because this case is materially identical, a

shortened version will suffice here. To understand the

relevant legal developments requires a bit of background

about Minnesota’s burglary statute, so we begin there.

The Minnesota crimes of first-degree and second-degree

burglary are set forth in a single statute and start from the

same basic definition, then add different sets of aggravating

circumstances. More specifically, “[w]hoever enters a build-

ing without consent and with intent to commit a crime, or

enters a building without consent and commits a crime

while in the building, either directly or as an accomplice,”

commits second-degree burglary if certain aggravating

circumstances are present (the second-degree aggravators

mostly relate to the nature of the burglarized premises).

MINN. STAT. § 609.582(2)(a). The same basic act is elevated to

first-degree burglary if more serious aggravating circum-

stances are present (the first-degree aggravators mostly

relate to the use of a weapon or the presence of a person in

the burglarized premises). Id. § 609.582(1).

To qualify as ACCA predicates, the elements of

Guenther’s burglary crimes must categorically match those

of “generic burglary,” which the Supreme Court has said

“contains at least the following elements: 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). This categorical approach, as

is now well understood, entails a comparison of legal ele-

ments of the crimes; the underlying facts do not matter. At

the time of Guenther’s § 2255 motion in 2008, Eighth Circuit

6 No. 17-3409

precedent supported a categorical match. Cf. United States v.

LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006) (holding that

Minnesota burglary qualifies under the analogous “crime of

violence” definition in the Sentencing Guidelines).

Seven years after Guenther’s § 2255 motion, the Supreme

Court held that the ACCA’s residual clause is unconstitu-

tionally vague. Johnson v. United States, 576 U.S. 591, 597–98

(2015). That knocked out Guenther’s kidnapping conviction

as an ACCA predicate. His qualifying convictions were

down to three.

Then came Mathis, 136 S. Ct. 2243, which clarified Taylor’s

categorical approach for classifying prior convictions for

purposes of recidivist sentencing enhancements. Mathis

addressed the common problem of alternatively phrased

criminal statutes—a problem first identified in Taylor and

Shepard v. United States, 544 U.S. 13, 25–26 (2005), and elabo-

rated in Descamps v. United States, 570 U.S. 254, 262–63

(2013). Briefly, an alternatively phrased criminal statute may

list different sets of elements (thus defining more than one

crime) or it may simply list different factual means of commit-

ting an element of a single crime. If the statutory alternatives

are separate elements, then the statute defines multiple

separate crimes and is said to be “divisible,” which permits

the court to look to the charging document and a limited set

of additional sources “to determine what crime, with what

elements, [the] defendant was convicted of.” Mathis,

136 S. Ct. at 2249. If, on the other hand, the statutory alterna-

tives are simply different factual means of committing the

crime, then the statute is said to be “indivisible” and the

court must find a categorical match between its elements

and those of the generic offense. Id. at 2248.

No. 17-3409 7

Mathis effectively “narrowed the range of state statutes

that qualify as violent felony predicates,” leading the Eighth

Circuit to rethink its understanding of Minnesota burglary.

Chazen, 938 F.3d at 855. In McArthur the court concluded that

Minnesota’s third-degree burglary offense, which appears in

the same statute as the first- and second-degree offenses,

sweeps more broadly than generic burglary and thus does

not qualify as an ACCA violent felony. 850 F.3d at 939–40.

The third-degree offense is defined in similar language as

the first- and second-degree crimes but without the aggra-

vating circumstances:

Whoever enters a building without consent

and with intent to steal or commit any felony

or gross misdemeanor while in the building, or

enters a building without consent and steals or

commits a felony or gross misdemeanor while

in the building, either directly or as an accom-

plice, commits burglary in the third degree … .

MINN. STAT. § 609.582(3). This statutory phrasing, the Eighth

Circuit held, describes two alternative factual means of

committing the crime. McArthur, 850 F.3d at 938. That is,

Minnesota third-degree burglary is committed by either an

unprivileged entry into a building with intent to commit a

crime or an unprivileged entry followed by the commission

of a crime while remaining in the building; these alternatives

are different factual means of committing the offense, not

separate elements. Id.

The Eighth Circuit went on to conclude that the statute is

overbroad because the second alternative does not include

the Taylor generic-offense requirement of contemporaneous

8 No. 17-3409

intent—i.e., the intent to commit a crime at the moment of the

unprivileged entry or unprivileged “remaining in” the

building. Id. at 939–40. Because the Minnesota third-degree

provision is indivisible, the court held that a conviction

under it does not count as an ACCA predicate. The court

later applied the same reasoning to Minnesota’s second-

degree burglary offense, ruling that it too does not qualify as

an ACCA violent felony. United States v. Crumble, 878 F.3d

656, 661–62 (8th Cir. 2018).

We followed the Eighth Circuit’s lead in Van Cannon,

holding that “Minnesota’s second-degree burglary statute is

indivisible, covers more conduct than the generic offense,

and thus is not an ACCA predicate.” 890 F.3d at 663. Like

the Eighth Circuit, we observed that the second alternative

factual means of committing a Minnesota burglary lacks the

contemporaneous-intent requirement required for generic

burglary. Id. at 664–65. But we took the analysis one step

further, explaining that “[t]he second alternative is just a

trespass (a nonconsensual entry) followed by the commis-

sion of a crime within the trespassed building at some point

thereafter.” Id. at 664. And that, in turn, meant that “the

trespass-plus-crime alternative in the Minnesota statute

doesn’t require proof of intent to commit a crime at all—not

at any point during the offense conduct.” Id.

After McArthur but before Van Cannon, Guenther sought

a writ of habeas corpus under § 2241 in the Western District

of Wisconsin. Citing Mathis and McArthur, he argued that

his ACCA-enhanced sentence is unlawful. The government

conceded that if McArthur applied, Guenther would not

have the required three ACCA predicates. But the govern-

ment maintained that Guenther had to establish that he was

No. 17-3409 9

wrongfully sentenced under the law of this circuit—the

circuit of confinement—and had not done so. The district

judge sidestepped the choice-of-law issue, concluding

instead that Mathis does not apply retroactively to cases on

collateral review.

One last doctrinal shift was yet to come. In Quarles v.

United States, 139 S. Ct. 1872 (2019), the Supreme Court

clarified the intent requirement for Taylor’s generic burgla-

ry—or, more specifically, the version of the generic offense

that consists of an unprivileged entry into a building fol-

lowed by the commission of a crime while remaining in the

building. The Court held that “generic remaining-in burgla-

ry occurs when the defendant forms the intent to commit a

crime at any time while unlawfully remaining in a building

or structure.” Id. at 1880 (emphasis added). Quarles thus

undermined McArthur’s rationale regarding the necessity of

contemporaneous intent. The Eighth Circuit has since recog-

nized that McArthur may have been abrogated entirely. See

Raymond v. United States, 933 F.3d 988, 992 (8th Cir. 2019)

(acknowledging ambiguity following Quarles and remand-

ing to the district court to consider McArthur’s vitality).

Though Quarles unsettled the Eighth Circuit’s under-

standing of Minnesota burglary, Van Cannon remains good

law. As we explained in Chazen, “we can say with confi-

dence … that Quarles did not abrogate Van Cannon’s conclu-

sion that Minnesota burglary is broader than generic

burglary because the state statute does not require proof of

any intent at any point.” 938 F.3d at 860. Indeed, the Supreme

Court declined to address this alternative rationale, leaving

Van Cannon intact. See Quarles, 139 S. Ct. at 1880 n.2.

10 No. 17-3409

Guenther’s appeal was on hold during the last steps of

this doctrinal evolution. It is now ready for decision.

II. Discussion

As we’ve explained, a federal prisoner may seek collat-

eral review of his sentence by motion under § 2255, and the

remedy is ordinarily exclusive and limited to one motion.

The statute permits a second or successive motion only if the

prisoner’s claim is based on “newly discovered evidence” or

“a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previ-

ously unavailable.” § 2255(h)(1)–(2).

The statutory saving clause, § 2255(e), permits another

round of collateral review through a petition for habeas

corpus under § 2241, but only if the remedy by motion is

“inadequate or ineffective to test the legality of [the prison-

er’s] detention.” We’ve held that the § 2255 remedy is not

“inadequate or ineffective” unless some structural impedi-

ment prevented its use. Higgs v. Watson, 984 F.3d 1235, 1239–

40 (7th Cir. 2021); Lee v. Watson, 964 F.3d 663, 666–67 (7th Cir.

2020); Purkey v. United States, 964 F.3d 603, 614–15 (7th Cir.

2020).

We explained in Chazen that for statutory claims, our cir-

cuit’s saving-clause caselaw establishes a three-part test for

the narrow § 2255(e) exception:

To pursue relief under § 2241, a petitioner must

establish that “(1) the claim relies on a statuto-

ry interpretation case, not a constitutional case,

and thus could not have been invoked by a

successive § 2255 motion; (2) the petitioner

could not have invoked the decision in his first

No. 17-3409 11

§ 2255 motion and the decision applies retroac-

tively; and (3) the error is grave enough to be

deemed a miscarriage of justice.”

938 F.3d at 856 (quoting Beason v. Marske, 926 F.3d 932, 935

(7th Cir. 2019)).

Our test has its complexities and raises some difficult

questions that to date remain unanswered. 3 Fortunately,

Chazen clears away most of the legal underbrush in its

application here. Like this case, Chazen also involved a

saving-clause challenge to an ACCA-enhanced sentence

based on Minnesota burglary. Our decision there makes

clear that the first two conditions for § 2241 relief weigh

3 For example, we have not been consistent about whether the change in

law must come from the Supreme Court or can come from a court of

appeals. See Chazen v. Marske, 938 F.3d 851, 864–65 (7th Cir. 2019) (Barrett,

J., concurring). Though we have at times said that the new decision must

come from the Supreme Court, we have elsewhere said that a new

circuit-level decision will suffice. Id. (citing Beason v. Marske, 926 F.3d 932,

935 (7th Cir. 2019)). The Fourth and Ninth Circuits also permit saving-

clause petitions based on new circuit-level decisions. United States v.

Wheeler, 886 F.3d 415, 420–21 (4th Cir. 2018); Alaimalo v. United States, 645

F.3d 1042, 1048 (9th Cir. 2011). In contrast, the Fifth and Sixth Circuits

have rejected this view. Hueso v. Barnhart, 948 F.3d 324, 326 (6th Cir.

2020); Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010).

Our cases also do not clearly explain what it means to be “new” in

this context. We have used at least three different standards, asking

whether the petitioner relies on (1) a “new rule” that “could not have

been invoked” in earlier proceedings; (2) a new decision that could not be

invoked at the § 2255 stage; or (3) a “newly decided case of statutory

interpretation” and the claim was “foreclosed by binding precedent” in

the circuit of conviction on direct appeal and previously on collateral

review. Chazen, 938 F.3d at 861–62 (collecting cases) (quotation marks

omitted).

12 No. 17-3409

decidedly in Guenther’s favor. First, Guenther’s claim relies

at least in part on Mathis, a statutory-interpretation case that

“is ‘new’ as a functional and practical matter” because it

“injected much-needed clarity and direction into the law”

regarding the application of the categorical approach.

Chazen, 938 F.3d at 862. Indeed, Mathis spurred our circuit

and the Eighth Circuit to revisit the question whether

Minnesota burglary is a categorical match to generic burgla-

ry. See id. (citing Van Cannon, 890 F.3d at 664; McArthur,

850 F.3d at 938).

Second, it would have been futile before Mathis for

Guenther to raise his new arguments in his first § 2255

motion because Eighth Circuit precedent was firmly against

him at that point. See id. (describing precedent in the Eighth

Circuit “concluding that Minnesota burglary qualified as a

violent felony for federal sentencing purposes”). Moreover,

the government does not dispute that Mathis applies retroac-

tively to cases on collateral review. See id. at 863 (noting that

the second prong was met “where the government has

conceded that Mathis is retroactive” and where the argument

was “so clearly foreclosed by the law of [the petitioner’s]

circuit of conviction at the time of his original § 2255 peti-

tion”). Guenther thus has satisfied the first two saving-clause

requirements.

That leaves only the miscarriage-of-justice inquiry. We

have held that a “fundamental sentencing defect”—

including an erroneous ACCA-enhanced sentence—amounts

to a “miscarriage of justice.” Light v. Caraway, 761 F.3d 809,

813 (7th Cir. 2014) (quotation marks omitted). Here the

question turns on whether Guenther’s Minnesota burglary

convictions are violent felonies. This, in turn, brings the

No. 17-3409 13

knotty choice-of-law question to the fore. Guenther was

convicted, sentenced, and sought § 2255 relief in the Eighth

Circuit, but his place of confinement is in the Western

District of Wisconsin and he properly filed his § 2241 habeas

petition there. See Webster v. Daniels, 784 F.3d 1123, 1144

(7th Cir. 2015) (en banc) (citing Rumsfeld v. Padilla, 542 U.S.

426 (2004)). Chazen leaves unanswered whether we should

evaluate the miscarriage-of-justice inquiry based on our own

precedent as the circuit of confinement or the Eighth

Circuit’s precedent as the circuit of conviction.

The difficulty of the choice-of-law conundrum is magni-

fied by the shifting legal landscape since Quarles. Van Cannon

remains good law, so the law is clear in our circuit that

Minnesota burglary is not a violent felony under the ACCA.

And though the Eighth Circuit once held as much, it has

since recognized that Quarles undermined McArthur—

perhaps abrogated the decision entirely. See Raymond,

933 F.3d at 992; see also Chazen, 938 F.3d at 860 (noting that

Raymond “observ[ed] without deciding that … Quarles may

have abrogated McArthur”). The upshot is that (1) Seventh

Circuit precedent provides relief and (2) the Eighth Circuit’s

current position on Minnesota burglary following Quarles is

at best unclear.4

No circuit has squarely addressed the choice-of-law

question in these circumstances, but there are considerations

pointing in both directions. The concurrence in Chazen

4 District judges in the District of Minnesota have since adopted

Van Cannon’s reasoning. See, e.g., United States v. Raymond, 466 F. Supp. 3d

1008, 1014 (D. Minn. 2020); United States v. Bugh, 459 F. Supp. 3d 1184,

1200 (D. Minn. 2020). The government has not appealed either decision.

14 No. 17-3409

argued that the law of the circuit of conviction should

apply—much like it does for a § 2255 motion—so that

habeas relief will not turn on “the fortuitous placement of a

prisoner by the Bureau of Prisons.” Chazen, 938 F.3d at 865

(Barrett, J., concurring) (quoting Hernandez v. Gilkey,

242 F. Supp. 2d 549, 554 (S.D. Ill. 2001)). On the other hand,

the Sixth Circuit recently suggested that applying the law of

the circuit of confinement “comports with the background

norm that each court should apply its own precedent on the

meaning of federal law.” Hueso v. Barnhart, 948 F.3d 324, 337

(6th Cir. 2020).

We need not settle the debate here. In Chazen we declined

to reach the choice-of-law question because the government

took “the position in the district court that the law of this

circuit governs the merits” of the claim. 938 F.3d at 860. The

same is true in this case.

The government now argues—for the first time on ap-

peal—that Guenther must point to favorable precedent in

both circuits. It’s one thing for the government to take differ-

ent positions in different courts for different defendants. It’s

quite another to take inconsistent positions for the same

defendant at different stages in his case. We therefore hold

the government to its earlier litigation position, like we did

in Chazen, and apply our circuit’s law to the merits of this

appeal.

And under our caselaw, Guenther’s Minnesota burglary

convictions are not violent felonies. See Van Cannon, 890 F.3d

at 665. Accordingly, his ACCA-enhanced sentence amounts

to a miscarriage of justice, and he is entitled to habeas relief

under § 2241. We therefore REVERSE the judgment and

REMAND with instructions to grant Guenther’s § 2241 peti-

No. 17-3409 15

tion and transfer the case to the District of Minnesota for

resentencing.