Petition for Writ of Certiorari — Vernon Montrell Webster, Petitioner v. United States

NO. 18A443

__________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2018

__________________________________________________

Vernon Webster - Petitioner,

vs.

United States of America - Respondent.

__________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

__________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________

Heather Quick

Assistant Federal Public Defender

222 Third Avenue SE, Suite 290

Cedar Rapids, IA 52401

TELEPHONE: 319-363-9540

FAX: 319-363-9542

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED

(1)

Whether the locations under Wisconsin’s burglary statute are

alternative means—a question pending resolution from the Wisconsin Supreme

Court—making Wisconsin burglary broader than generic burglary and therefore not

a qualifying prior conviction under the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e)(1)?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................... ii

TABLE OF AUTHORITIES ......................................................................................... iv

OPINION BELOW......................................................................................................... 2

JURISDICTION............................................................................................................. 3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........................ 3

STATEMENT OF THE CASE ....................................................................................... 4

REASONS FOR GRANTING THE WRIT .................................................................... 6

CONCLUSION............................................................................................................. 13

INDEX TO APPENDICES

APPENDIX A:

Opinion of the Eighth Circuit Court of Appeals 7-11-2018 ......... 2

APPENDIX B:

Judgment of the Eighth Circuit Court of Appeals 7-11-2018 ...... 4

APPENDIX C:

Eighth Circuit Court of Appeals Order Denying Motion to Hold

Case in Abeyance 8-6-18................................................................ 5

APPENDIX D:

Order Denying Petition for Rehearing 8-28-2018 ........................ 6

APPENDIX E:

Order Granting Extension of Time to file Petition for Writ of

Certiorari by Justice Gorsuch 10-26-2018 .................................... 7

iii

Table of Authorities

Federal Cases

Descamps v. United States, 133 S. Ct. 2276 (2013) ................................................ 5

Mathis v. United States, 136 S. Ct. 2243 (2016) ................................. 5, 6, 7, 10, 11

United States v. Franklin, 895 F.3d 954 (7th Cir. 2018) ................................. 4, 6, 8

United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) ........................................ 10

United States v. Lamb, 847 F.3d 928 (8th Cir. 2017) ...................... 4, 6, 7, 9, 10, 11

United States v. Stitt, 139 S. Ct. 399 (2018) ............................................................ 8

Federal Statutes

18 U.S.C. § 922(g)(1) (2012) ................................................................................... 3

18 U.S.C. § 924(E)(1) (2012) .................................................................................. 7

18 U.S.C. § 924(e)(1) (2012) ................................................................................... 2

18 U.S.C. § 924(e)(2) (2012) ................................................................................... 2

28 U.S.C. § 1254(1) (2012) ..................................................................................... 2

State Cases

Champlin v. State, 267 N.W.2d 295 (Wis. 1978) .................................................... 9

Manson v. State, 304 N.W.2d 729 (Wis. 1981) ..................................................... 12

State v. Baldwin, 304 N.W.2d 742 (Wis. 1981) ................................................. 9, 10

State v. Derango, 613 N.W.2d 833 (Wis. 2000) ...................................... 8, 9, 10, 12

State v. Hendricks, 906 N.W.2d 666 (Wis. 2018) ................................................. 10

State v. Schiefer, 2011 WL 3115992 (Iowa Ct. App. July 27, 2011) .................... 11

State Statutes

Wis. Stat. § 943.10(1) .......................................................................................... 3, 7

Wis. Stat. § 943.10(1m) ............................................................................... 8, 10, 11

Wis. Stat. § 943.10(2) ............................................................................................ 11

Wis. Stat. §§ 940.04(2), 940.05(1), (2)(g) ....................................................... 11-12

iv

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2018

__________________________________________________

Vernon Webster - Petitioner,

vs.

United States of America - Respondent.

__________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

__________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________

The petitioner, Vernon Webster, through counsel, respectfully prays that a

writ of certiorari issue to review the judgment of the United States Court of Appeals

for the Eighth Circuit in case No. 17-2758, entered on July 11, 2018. Mr. Webster

filed a petition for rehearing en banc and petition for rehearing by the panel, as well

as a motion to stay pending the Wisconsin Supreme Court’s resolution of the

matter. Mr. Webster’s motion to stay was denied on August 6, 2018. Mr. Webster’s

petition for rehearing en banc and petition for rehearing by the panel were denied

on August 28, 2018.

Mr. Webster requested an extension to file a petition for writ

of certiorari. Justice Neil Gorsuch granted the request, extending the deadline to

January 25, 2019.

1

OPINION BELOW

On July 11, 2018, a panel of the Court of Appeals entered its ruling affirming

the judgment of the United States District Court for the Northern District of Iowa.

The decision is unpublished and available at 730 F. App’x 396.

2

JURISDICTION

The Court of Appeals entered its judgment on July 11, 2018, and denied

Mr. Webster’s petition for rehearing en banc and petition for rehearing by the panel

on August 28, 2018. Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 924(e)(1) (2012):

In the case of a person who violates section 922(g) of this title and has

three previous convictions by any court referred to in section 922(g)(1)

of this title for a violent felony or a serious drug offense, or both,

committed on occasions different from one another, such person shall be

fined under this title and imprisoned not less than fifteen years, and,

notwithstanding any other provision of law, the court shall not suspend

the sentence of, or grant a probationary sentence to, such person with

respect to the conviction under § 922(g).

18 U.S.C. § 924(e)(2):

As used in this subsection –

(B)

* * *

the term “violent felony” means any crime punishable by

imprisonment for a term exceeding one year, or any act of

juvenile delinquency involving the use or carrying of a

firearm, knife, or destructive device that would be

punishable by imprisonment for such term if committed by

an adult, that –

(i)

has an element the use, attempted use, or

threatened use of physical force against the person

of another; or

(ii)

is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to

another; . . .

3

Wisconsin Statute § 943.10(1) (1989, 1993, 1994):

(1) Whoever intentionally enters any of the following places without the

consent of the person in lawful possession and with intent to steal or commit

a felony in such place is guilty of a Class C felony:

(a) Any building or dwelling; or

(b) An enclosed railroad car; or

(c) An enclosed portion of any ship or vessel; or

(d) A locked enclosed cargo portion of a truck or trailer; or

(e) A motor home or other motorized type of home or a trailer

home, whether or not any person is living in any such home; or

(f) A room within any of the above.

STATEMENT OF THE CASE

On January 25, 2017, Mr. Webster was indicted in the Northern District of

Iowa on one count of possession of a firearm and ammunition by a felon, in violation

of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). (DCD 2). 1 Eventually, Mr. Webster pled

guilty to the offense. (DCD 17).

Sentencing was contested over the applicability of the ACCA. The

presentence investigation report (PSR) determined that Mr. Webster was an Armed

Career Criminal. (PSR ¶ 19). The PSR asserted Mr. Webster had three separate

convictions for Wisconsin burglary and that these were violent felonies under the

In this petition, the following abbreviations will be used:

“DCD” - district court clerk’s record, followed by docket entry and page number, where noted;

“PSR” - presentence report, followed by the page number of the originating document and paragraph

number, where noted; and

“Sent. Tr.” – Sentencing hearing transcript, followed by page number.

1

4

ACCA. (PSR ¶¶ 24, 26, 27). The PSR also asserted that Mr. Webster’s Wisconsin

conviction for possession with intent to distribute cocaine was a serious drug offense

under the ACCA. (PSR ¶ 28).

Mr. Webster objected to PSR’s finding that he was an Armed Career

Criminal. (DCD 25, 26). Specifically, he challenged that his Wisconsin burglary

convictions were Armed Career Criminal predicates. (DCD 25, 26). He argued that

Wisconsin burglary was indivisible and broader than generic burglary, and that the

Eighth Circuit’s decision in United States v. Lamb, 847 F.3d 928 (8th Cir. 2017),

which held otherwise, was wrongly decided. (DCD 25, 26).

At sentencing, the district court found that Mr. Webster was an Armed

Career Criminal, as Lamb was controlling precedent. (Sent. Tr. p. 5). The court

sentenced Mr. Webster to 180 months of imprisonment. (Sent. Tr. p. 13). Mr.

Webster appealed. The panel affirmed and acknowledged that Lamb was binding.

(App’x 2).

Mr. Webster filed a petition for rehearing and rehearing en banc with the

Eighth Circuit. He also filed a motion to stay the petition for rehearing and

rehearing en banc. Mr. Webster noted that six days after the Eighth Circuit’s

decision in his case, the Seventh Circuit had granted a petition for rehearing en

banc to determine whether the locations under Wisconsin’s burglary statute were

alternative means or alternative elements. United States v. Franklin, 895 F.3d 954

(7th Cir. 2018). As part of the grant, the Seventh Circuit certified the

5

means/elements question to the Wisconsin Supreme Court. Id. Mr. Webster asked

the Eighth Circuit to stay resolution of the petition for rehearing, because the

Wisconsin Supreme Court’s decision on the matter would be binding upon the

Eighth Circuit. The Eighth Circuit denied the request for stay on August 6, 2018,

and then denied the petition for rehearing and rehearing en banc on August 28,

2018. (App’x 5-6). Mr. Webster requested an extension of time to file a petition for

writ of certiorari. Justice Neil Gorsuch granted the request, and allowed Mr.

Webster until January 25, 2019 to file a petition for writ of certiorari. (App’x 7).

REASONS FOR GRANTING THE WRIT

In recent years, federal courts have had to decide whether each of the

nation’s myriad burglary statutes is an Armed Career Criminal Act “violent felony,”

by determining whether each statute corresponds with the Supreme Court’s

definition of “generic burglary.” This was necessitated by Descamps v. United

States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016),

which restricted how the courts analyze burglary statutes for ACCA purposes, and

Johnson v. United States, 135 S. Ct. 2251 (2015), which eliminated ACCA’s residual

clause as an alternative basis for labeling burglary a violent felony.

This case turns on “divisibility”—whether statutory alternatives are elements

or means, i.e. whether jurors would have to unanimously agree on which alternative

applies. Specifically, this case turns on whether Wisconsin jurors need to agree on

whether a burglary defendant entered a “building or dwelling,” versus another of

6

the statute’s alternatives (e.g. “ship or vessel,” “room within any of the above”).

This inquiry requires federal judges to delve into state law—to predict how the

Wisconsin Supreme Court would decide the question.

The Eighth Circuit affirmed that Mr. Webster was an armed career criminal,

because the court’s prior decision in United States v. Lamb, 847 F.3d 928 (8th Cir.

2017), held that the locations were alternative elements based on the panel’s

assessment of Wisconsin case law.

Six days after the Eighth Circuit’s affirmance of Mr. Webster’s sentence, the

Seventh Circuit Court of Appeals granted a petition for rehearing en banc to

determine if Wisconsin burglary is an ACCA predicate. United States v. Franklin,

895 F.3d 954 (7th Cir. 2018). As part of that grant, the Seventh Circuit certified the

means/elements question to the Wisconsin Supreme Court. Id. (certifying the

question to the Wisconsin Supreme Court and citing Lamb to note the implications

of the decision). Therefore, all federal courts will soon have a definitive answer on

the means/elements question. Mathis v. United States, 136 S. Ct. 2243, 2256 (2016)

(holding that state law controls on the means/elements question).

This Court should grant this petition for writ of certiorari, because the

Seventh Circuit and Eighth Circuit Court of Appeals are at odds with their

resolution of the Wisconsin burglary question. At the very least, this Court should

stay ruling on the petition for writ of certiorari pending the Wisconsin Supreme

Court’s resolution of the means versus elements question.

7

I.

THE LOCATIONS UNDER WISCONSIN’S BURGLARY STATUTE

ARE ALTERNATIVE MEANS—A QUESTION PENDING

RESOLUTION FROM THE WISCONSIN SUPREME COURT—

MAKING WISCONSIN BURGLARY BROADER THAN GENERIC

BURGLARY AND THEREFORE NOT A QUALIFYING PRIOR

CONVICTION UNDER THE ARMED CAREER CRIMINAL ACT

(ACCA), 18 U.S.C. § 924(E)(1).

On remand after Mathis v. United States, 136 S. Ct. 2243 (2016), the Eighth

Circuit Court of Appeals considered whether Wisconsin burglary was still an Armed

Career Criminal predicate. Lamb, 847 F.3d at 930. In Lamb, the Court analyzed

whether the locations in the Wisconsin burglary statute were means or elements, to

determine if Wisconsin burglary was broader than generic burglary. Id. The Court

held that each separate location under Wisconsin burglary was an element, and

therefore the statute was divisible as to location. Id. Stated another way, the panel

believed that the Wisconsin legislature intended to create six different burglary

statutes. Id. The Court held that the modified categorical approach was

appropriate. Id.

This Court should grant the petition for writ of certiorari. Lamb incorrectly

applied Mathis to determine that Wisconsin burglary is divisible.

Wisconsin Statute § 943.10(1) (1989, 1993, 1994) states:

(1) Whoever intentionally enters any of the following places without the

consent of the person in lawful possession and with intent to steal or commit a

felony in such place is guilty of a Class C felony:

(a) Any building or dwelling; or

(b) An enclosed railroad car; or

8

(c) An enclosed portion of any ship or vessel; or

(d) A locked enclosed cargo portion of a truck or trailer; or

(e) A motor home or other motorized type of home or a trailer

home, whether or not any person is living in any such home; or

(f) A room within any of the above.

Wisconsin burglary includes locations that are broader than generic

burglary.2 The question is then whether subsections (a)-(f) of § 943.10(1m) present

alternative means or alternative elements. Wisconsin case law does not specifically

answer whether the locations are alternative means or elements.3 However, in

Lamb the Eighth Circuit relied on an abrogated Wisconsin case, and improperly

rejected Wisconsin’s leading jury-unanimity case, State v. Derango, 613 N.W.2d 833

(Wis. 2000), to find that the locations were alternative elements. Under the

analysis laid out by in Derango, it is clear that the locations are alternative means.

In Derango, the court held that with the state’s child-enticement statute,

jurors need not agree on the purpose of the enticement; the alternative purposes

listed in the statute’s six subsections, which listed alternative motivations for luring

the child, are means, not elements. Id. at 839-40. The court reasoned that:

(1) Luring a child to a secluded place (not the specific purpose) is the “evil”

addressed by the statute:

(2) An early version of the statute referred generally to an intent to “commit a

crime against sexual morality,” rather than listing alternatives, and there

2 This Court’s recent decision in United States v. Stitt, 139 S. Ct. 399 (2018), does not defeat Mr.

Webster’s claim.

3 The Wisconsin Supreme Court’s response to the Seventh Circuit’s certified question should

definitively answer this question. United States v. Franklin, 895 F.3d 954 (7th Cir. 2018).

9

was “no indication in the legislative history that the legislature intended

to take what was once a single crime and replace it with six”;

(3) The alternatives do not involve acts that are “separate in time or are

significantly different in nature”;

(4) A defendant could commit a single act of enticement with multiple mental

states, and “multiple punishments” for that single act “would not be

appropriate.”

Derango’s reasoning fits burglary perfectly:

(1) Burglary statutes are aimed at the evil of nonconsensual entry with the

intent to commit a crime, not the specific location. See Wayne R. LaFave,

Substantive Law § 21.1(g).

(2) Wisconsin’s burglary statute used to have general language regarding

locations, Champlin v. State, 267 N.W.2d 295, 297 (Wis. 1978), and there

is no indication in the legislative history that the legislature intended to

take what was once a single crime and replace it with six.” Derango, 613

N.W.2d at 839-40.

(3) The burglary statute’s location alternatives do not involve separate acts

that are different in nature.

(4) A single act of burglary could implicate multiple alternatives (e.g.

dwelling and ship, building and room), and it would “not be appropriate”

to impose multiple sentences for the single act of breaking into a

houseboat, or entering multiple rooms of a building.

Lamb disregarded Derango by claiming that it conflicted with much older

state case law, State v. Baldwin, 304 N.W.2d 742 (Wis. 1981), and then assuming

that Baldwin, not Derango, was good law. Lamb, 847 F.3d at 932, n. 2. The Court

then stated: “We know of no rational way to decide which of these state court

decisions should govern the elements/means question that controls ACCA

10

divisibility in this case.” Id. An analysis of Wisconsin case law makes clear that

this is incorrect and that Derango, not Baldwin, controls.

First, Baldwin did not say that the itemized alternatives in the statute at

issue (second-degree sexual assault) were distinct offenses—that was not an issue in

the case—the state supreme court merely mused (in dicta) that the alternatives

seemed distinct. 304 N.W.2d at 748-49. In any event, Derango explicitly abrogated

this musing. 618 N.W.2d at 841. Derango said that Baldwin addressed the

“conceptually distinct” theory of jury unanimity, which the Supreme Court had

since rejected. 613 N.W.2d at 746. Therefore, there is no doubt that Derango

controls the means/elements question. See, e.g., State v. Hendricks, 906 N.W.2d

666, 677 (Wis. 2018) (using Derango to decide whether statutory alternative is an

element). Regardless, a court should not assume that a theoretical tie should favor

the government. United States v. Herrold, 883 F.3d 517, 522 (5th Cir. 2018) (en

banc) (“Should our dual forays into state law and the record leave the question of

divisibility inconclusive, the tie goes to the defendant—because the ACCA demands

certainty that a defendant indeed committed the generic offense, any indeterminacy

on the question means the statute is indivisible.”).

Instead, the strongest indicator that the locations present alternative means

is that there is no separate penalty depending on the location – it is always a Class

F felony. Wis. Stat. § 943.10(1m); Mathis, 136 S. Ct. at 2252. However, the

Wisconsin legislature did make it a separate offense, with a higher penalty, when a

11

defendant steals a weapon during a burglary. Wis. Stat. § 943.10(2). Because the

location alternative makes no actual or practical difference in the penalty or

classification, a defendant like Mr. Webster would have no need to dispute whether

the burglary was of a building or a motor home. Mathis, 136 S. Ct. at 2253.

After rejecting Derango, the Lamb Court also cited multiple Wisconsin cases

that indicate a defendant was convicted of burglarizing a specific location. Lamb,

847 F.3d at 932. This is unhelpful to the question of whether the location is a legal

element. For example, in Iowa, state appellate courts will refer to the “elements” of

burglary by listing the specific location at issue in that case. See, e.g,. State v.

Schiefer, 2011 WL 3115992, at *1 (Iowa Ct. App. July 27, 2011) (stating that one of

the elements of the offense was that it occurred in an apartment). However, as

Mathis made clear, in Iowa, the actual location alternative is not a legal element—

occupied structure is the element. Whatever may have been marshaled to the jury

in a specific case is not necessarily a legal element for purposes of the categorical

approach.

Instead, the strongest indicator that the locations are alternative elements is

that the locations are in separate subsections. However, the Wisconsin legislature’s

decision to create subsections within Wisconsin Statute § 943.10(1m) is not

meaningful—it is just the legislature’s drafting style. In the first substantive

chapter, Chapter 940, the following contain itemized alternatives within the

definition of substantive criminal offenses: Wis. Stat. §§ 940.04(2), 940.05(1) &

12

(2)(g), 940.09(1), 940.201, 940.225(1) & (2), 940.25(1), 940.285(2), 940.295(3),

940.302(2), 940.31(1), 940.315(1), 940.32(2m) & (3), 940.43, 940.44, and 940.45. In

Chapter 943, in which burglary appears, an even greater percentage of statutes are

written in this way. Some of these alternatives may well be legal elements, but the

mere fact that they are itemized does not aid in resolving the means versus

elements question. See Derango, 613 N.W.2d at 839–41 (holding that the itemized

subsections of the state’s child-enticement statute are not elements). Regardless of

drafting style, Wisconsin case law makes clear that “[i]f the [statutory] alternatives

are similar, one crime was probably intended.” Manson v. State, 304 N.W.2d 729,

734 (Wis. 1981). Therefore, Wisconsin burglary is overbroad.

CONCLUSION

For the foregoing reasons, Mr. Webster respectfully requests that the Petition

for Writ of Certiorari be granted.

RESPECTFULLY SUBMITTED,

__/s/ Heather Quick_____________________

Heather Quick

Assistant Federal Public Defender

222 Third Avenue SE, Suite 290

Cedar Rapids, IA 52401

TELEPHONE: 319-363-9540

FAX: 319-363-9542

ATTORNEY FOR PETITIONER

13