Opposition Brief — Vernon Montrell Webster, Petitioner v. United States

No. 18-7572

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

VERNON MONTRELL WEBSTER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

SONJA M. RALSTON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

petitioner’s

prior

convictions

for

burglary,

in

violation of Wis. Stat. 943.10(1)(a) (1989, 1993), qualify as

convictions for generic burglary under the Armed Career Criminal

Act of 1984, 18 U.S.C. 924(e).

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-7572

VERNON MONTRELL WEBSTER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 2-3) is not

published in the Federal Reporter but is reprinted at 730 Fed.

Appx. 396

JURISDICTION

The judgment of the court of appeals was entered on July 11,

2018.

A petition for rehearing was denied on August 28, 2018 (Pet.

App. 6).

On October 26, 2018, Justice Gorsuch extended the time

within which to file a petition for a writ of certiorari to and

including January 25, 2019, and the petition was filed on January

2

23, 2019.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District Court

for the Northern District of Iowa, petitioner was convicted of

possession of a firearm by a felon, in violation of 18 U.S.C.

922(g)(1).

Judgment 1.

He was sentenced to 180 months of

imprisonment, to be followed by five years of supervised release.

Judgment 2-3.

1.

The court of appeals affirmed.

In

July

2015,

petitioner

bulletproof

vest

to

confidential

a

sold

Investigation Report (PSR) ¶¶ 4-6, 13.

prior

felony

convictions,

PSR

burglary, PSR ¶¶ 24, 26, 27.

a

Pet. App. 2-3.

stolen

informant.

gun

and

a

Presentence

Petitioner has multiple

¶¶ 24-36,

including

three

for

Petitioner was indicted on, and

eventually pleaded guilty to, one count of possession of a firearm

by a felon, in violation of 18 U.S.C. 922(g)(1).

Indictment 1-2;

D. Ct. Doc. 23, at 1-2 (April 6, 2017).

A conviction for violating 18 U.S.C. 922(g)(1) carries a

statutory sentencing range of zero to ten years of imprisonment.

See 18 U.S.C. 924(a)(2).

If, however, a defendant has at least

three prior convictions for “a violent felony or a serious drug

offense,” the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C.

924(e), specifies a statutory sentencing range of 15 years to life

imprisonment.

18 U.S.C. 924(e)(1).

of “violent felony.”

Felony burglary is one type

18 U.S.C. 924(e)(2)(B)(ii).

3

To qualify as a “burglary” under the ACCA, the definition of

the crime underlying the prior conviction must “substantially

correspond[] to ‘generic’ burglary” or a subset thereof.

Taylor

v. United States, 495 U.S. 575, 602 (1990).

Generic burglary is

an

or

“unlawful

or

unprivileged

entry

into,

remaining

building or structure, with intent to commit a crime.”

599.

in,

a

Id. at

To determine whether a crime meets that definition, courts

generally apply a “categorical approach.” See, e.g., United States

v. Stitt, 139 S. Ct. 399, 405 (2018).

As this Court explained in

Mathis v. United States, 136 S. Ct. 2243 (2016), under that

approach, a court “focus[es] solely” on “the elements of the crime

of conviction,” not “the particular facts of the case.”

2248.

Id. at

Sometimes, the statute underlying the prior conviction has

a so-called “‘divisible’” structure, in which it “list[s] elements

in the alternative, and thereby define[s] multiple crimes.”

Id.

at 2249 (citation omitted).

When the statute of conviction is

divisible,

court

the

sentencing

may

apply

the

“modified

categorical approach,” under which a court may “look[] to a limited

class

of

documents

(for

example,

the

indictment,

jury

instructions, or plea agreement and colloquy) to determine what

crime, with what elements, [the] defendant was convicted of.”

Ibid.; see Shepard v. United States, 544 U.S. 13, 26 (2005).

For the modified categorical approach to apply, the state

statute must set out alternative elements (facts that the jury

must find or the defendant must admit to sustain a conviction)

4

rather than alternative means (“various factual ways of committing

some component of the offense” that “a jury need not find (or a

defendant admit)” for conviction).

Mathis, 136 S. Ct. at 2249.

“The first task for a sentencing court faced with an alternatively

phrased statute is thus to determine whether its listed items are

elements or means.”

resolved

by

examining

Id. at 2256.

“authoritative

including state court decisions.

2.

That determination may be

sources

of

state

law,”

Ibid.

In this case, the Probation Office recommended that

petitioner be sentenced under the ACCA because he had four prior

Wisconsin convictions that qualified as ACCA predicates:

a 1998

conviction for possession with intent to distribute cocaine, and

1989, 1993, and 1994 convictions for burglary.

PSR ¶¶ 24, 26-28.

Petitioner’s burglary convictions all involved violations of Wis.

Stat. § 943.10(1)(a) (1989, 1993).

At the time of petitioner’s

convictions, Section 943.10(1), now renumbered Section 943.10(1m),

provided:

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

5

(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.

Id. § 943.10(1) (1989, 1993).

Petitioner objected to his ACCA

classification, asserting that Wisconsin’s burglary statute is

overbroad and indivisible.

PSR ¶¶ 24, 26-27.

He acknowledged,

however, that the Eighth Circuit previously had determined in

United States v. Lamb, 847 F.3d 928 (2017), cert. denied, 138 S.

Ct. 1438 (2018) (No. 17-5152), that the statute was divisible.

PSR ¶¶ 24, 26-27.

The district court overruled petitioner’s

objections and sentenced petitioner to 180 months of imprisonment.

Sent. Tr. 5-6; Judgment 2.

3.

The court of appeals affirmed in an unpublished per

curiam decision.

Pet. App. 2-3.

The court recognized that, as

petitioner himself had acknowledged, petitioner’s challenge to the

classification of his burglary convictions as ACCA predicates was

foreclosed by Lamb.

Id. at 3.

Shortly after the court of appeals affirmed petitioner’s

sentence, the Seventh Circuit granted panel rehearing in United

States v. Franklin, 895 F.3d 954 (2018), in which the panel earlier

had agreed with Lamb and found the Wisconsin statute divisible,

United States v. Franklin, 884 F.3d 331, 336 (7th Cir. 2018).

Seventh

Circuit

certified

the

question

of

divisibility to the Supreme Court of Wisconsin.

F.3d at 955-956.

the

The

statute’s

Franklin, 895

6

Following the Seventh Circuit’s certification, petitioner

sought to hold his case in abeyance pending the Supreme Court of

Wisconsin’s decision, but the Eight Circuit denied that request,

Pet.

App.

5,

and

then

denied

petitioner’s

rehearing or rehearing en banc, id. at 6.

request

for

panel

Meanwhile, the Supreme

Court of Wisconsin accepted the certified question and, following

briefing in which the State also participated, held argument on

February 11, 2019.

United States v. Franklin, No. 2018AP1346.

That court has not yet issued a decision.

ARGUMENT

Petitioner renews his contention (Pet. 6-13) that Wisconsin

burglary is indivisible and therefore too broad to qualify as

generic burglary under the ACCA.

soon

will

decide

that

The Supreme Court of Wisconsin

state-law

divisibility

question.

Accordingly, plenary review in this Court is unnecessary and

unwarranted.

If it wishes, however, the Court could hold the

petition pending the Supreme Court of Wisconsin’s forthcoming

ruling.

The question presented does not warrant this Court’s plenary

review.

As petitioner recognizes (Pet. 7), the question is one of

state law.

See Mathis, 136 S. Ct. at 2256.

In accord with its

general practice on questions of state law, this Court typically

does not grant certiorari to review a lower court’s determination

of a state statute’s divisibility.

See, e.g., Gundy v. United

States, cert. denied, No. 16-8617 (Oct. 2, 2017); Rice v. United

7

States, cert. denied, No. 15-9255 (Oct. 3, 2016).

Indeed, the

Court denied certiorari in the very case on which the decision

below relied.

Lamb v. United States, No. 17-5152 (April 2, 2018).

Petitioner

identifies

presented;

to

the

no

circuit

contrary,

both

conflict

on

courts

appeals

of

the

question

to

have

considered the issue have agreed that the statute is divisible.

United States v. Lamb, 847 F.3d 928, 930 (8th Cir. 2017), cert.

denied, 138 S. Ct. 1438 (2018) (No. 17-5152); United States v.

Franklin, 884 F.3d 331, 336 (7th Cir.), reh’g granted, 895 F.3d

954 (2018).

Moreover, the relevant state high court is poised to issue a

conclusive ruling on the statute’s divisibility. See United States

v. Franklin, No. 2018AP1346 (argued Feb. 11, 2019).

If the

petition were denied and that court definitively interpreted the

state statute as indivisible, it is possible that petitioner could

seek postconviction relief under 28 U.S.C. 2255.

Alternatively,

consideration

of

if

the

this

petition

Court

wishes,

pending

the

it

could

Supreme

defer

Court

of

Wisconsin’s decision in Franklin, and dispose of it as appropriate

thereafter in light of that decision.

See Stephen M. Shapiro et

al., Supreme Court Practice § 5.9, at 340 (10th ed. 2013).

8

CONCLUSION

The petition for a writ of certiorari should be denied.

In

the alternative, if the Court wishes, it could defer consideration

of the petition pending the Supreme Court of Wisconsin’s decision

in United States v. Franklin, No. 2018AP1346 (argued Feb. 11,

2019), and dispose of it as appropriate thereafter.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

SONJA M. RALSTON

Attorney

APRIL 2019