                United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-2399
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                Jonathon Adam Lamb

                     lllllllllllllllllllll Defendant - Appellant
                                     ____________

                   Appeal from United States District Court
                 for the Southern District of Iowa - Davenport
                                ____________

                            Submitted: January 18, 2017
                              Filed: February 3, 2017
                                  ____________

WOLLMAN, BRIGHT, and LOKEN, Circuit Judges.*
                        ____________

LOKEN, Circuit Judge.




      *
       This opinion is being filed by Judge Wollman and Judge Loken pursuant to
8th Cir. Rule 47E.
       Jonathon Adam Lamb pleaded guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced Lamb to 180
months in prison, the mandatory minimum sentence under the Armed Career Criminal
Act (“ACCA”) for a defendant who has three prior “violent felony” convictions. 18
U.S.C. § 924(e)(1). Lamb appealed his sentence. We affirmed, applying the familiar
but often perplexing “categorical approach” to assess whether his prior convictions
were violent felonies as defined in 18 U.S.C. § 924(e)(2)(B). See Descamps v.
United States, 133 S. Ct. 2276, 2283-85 (2013); Johnson v. United States, 559 U.S.
133, 144-45 (2010). We concluded that Lamb’s two prior Michigan unarmed robbery
convictions were violent felonies under the ACCA’s force clause, § 924(e)(2)(B)(i),
and that a state court charging document established that his prior Wisconsin burglary
conviction was for the crime of generic burglary, an enumerated violent felony in
§ 924(e)(2)(B)(ii). United States v. Lamb, 638 F. App’x 575 (8th Cir. 2016). We
noted the Supreme Court had granted a writ of certiorari to review our decision in
United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015), where we upheld applying
the ACCA to an Iowa burglary conviction.

       The Supreme Court reversed our decision in Mathis, 136 S. Ct. 2243 (2016),
granted Lamb’s petition for a writ of certiorari, vacated our judgment, and remanded
“for further consideration in light of Mathis.” Lamb v. United States, 137 S. Ct. 494
(2016). We recalled our mandate and reopened the case but did not vacate our prior
opinion. We now conclude that the Supreme Court’s decision in Mathis, which did
not address the ACCA’s force clause, does not alter our prior decision that Lamb’s
Michigan robbery convictions were ACCA violent felonies. That portion of our prior
opinion is reinstated. Lamb, 638 F. App’x at 576-77. Mathis does require additional
analysis of whether Lamb’s Wisconsin burglary conviction was an enumerated
ACCA violent felony. As we will explain, Mathis does not alter our conclusion that


      1
        The Honorable John A. Jarvey, Chief Judge of the United States District Court
for the Southern District of Iowa.

                                         -2-
he was convicted of generic burglary. Therefore, we again affirm the judgment of the
district court.

                                          I.

       The ACCA defines the term violent felony to include any state or federal
felony that “is burglary.” 18 U.S.C. § 924(e)(2)(B)(ii). In Taylor v. United States,
the Supreme Court concluded that Congress in the ACCA intended to adopt “the
generic, contemporary meaning of burglary [which] 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.” 495 U.S. 575, 598 (1990). Thus, to
determine whether a prior burglary conviction was for the violent felony of generic
burglary, the Court “focus[es] solely on whether the elements of the crime of
conviction sufficiently match the elements of generic burglary, while ignoring the
particular facts of the case.” Mathis, 136 S. Ct. at 2248.

       Many state burglary statutes are overinclusive, that is, they define burglary
more broadly than generic burglary. For example, a statute may include unlawful
entry into places other than buildings, such as automobiles and vending machines.
If an overinclusive statute has a “divisible” structure -- defining multiple crimes by
listing one or more elements in the alternative -- the Court applies a “modified
categorical approach” that “permits [federal] sentencing courts to consult a limited
class of documents, such as indictments and jury instructions, to determine which
alternative formed the basis of the defendant’s prior conviction.” Descamps, 133 S.
Ct. at 2281. However, if the statute is overinclusive and not divisible, as in
Descamps, no prior conviction under that statute qualifies for the ACCA mandatory
minimum sentence enhancement.

      In Mathis, the Court resolved a circuit conflict regarding the meaning of the
term “divisible.” Under Mathis, when “faced with an alternatively phrased statute

                                         -3-
[we must first] determine whether its listed items are elements or means.” 136 S. Ct.
at 2256. “Elements” are “the things the prosecution must prove to sustain a
conviction.” Id. at 2248 (quotation omitted). “Means” are “[h]ow a given defendant
actually perpetrated the crime.” Id. at 2251. To distinguish between elements and
means, federal sentencing courts should look at “authoritative sources of state law”
such as “a state court decision [that] definitively answers the question,” or the
statute’s text. If necessary, the court may “peek” at the record of the prior conviction,
but only to determine if the statutory alternatives are elements or means. Id. at 2256-
57 (quotation omitted). If the statute lists alternative elements, it is divisible, and
therefore the prior conviction is subject to modified categorical analysis. Id.

                                           II.

      In 2006, Lamb pleaded no contest to a felony charge that he violated Wis. Stat.
§ 943.10(1m)(a), a subsection of the Wisconsin burglary statute:

      943.10(1m) 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 F 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 such home; or
      (f) A room within any of the above.

       A. Without question, § 943.10(1m), viewed as a whole, encompasses a broader
range of conduct than generic burglary as defined in Taylor, such as burglary of
railroad cars, ships, trucks, and motor homes. But viewing subsections (a) - (f) as a
whole, we agree with the District of Minnesota that Section (1m) is a divisible statute,

                                          -4-
indeed, “a textbook example of one with alternative elements.” United States v.
Jones, 2016 WL 4186929, at *3 (D. Minn. Aug. 8, 2016).

       We find support for this conclusion in Wisconsin precedent and practice.
Consistent with the face of the statute, prior reported decisions all reflect that
defendants were convicted of violating a specific subsection of § 943.10(1m). See,
e.g., Anderson v. State, 223 N.W.2d 879, 882 (Wis. 1974) (subsection (d), locked
cargo trailer of truck); State v. Champlain, 744 N.W.2d 889, 899 (Wis. App. 2007)
(subsection (a), building); State v. Curtis, 424 N.W.2d 719, 719-20 (Wis. App. 1988)
(subsection (f), room inside a dwelling). Likewise, taking the permitted “peek” at the
record of Lamb’s prior conviction, we find that he was charged with and pleaded no
contest to “Burglary-Building or Dwelling,” a violation of “943.10(1m)(a).”
Wisconsin’s model burglary jury instructions reinforce this interpretation, explaining
that “[t]he model instruction is drafted for a case involving entry into a ‘building.’
It must be modified if entry involved any of the other places listed in § 943.10(1)(a)
through (f).” Wis. J.I.-Crim. No. 1421 n.2 (2001). The Supreme Court noted in
Mathis that “an indictment and jury instructions could indicate, by referencing one
alternative term to the exclusion of all others, that the statute contains a list of
elements, each one of which goes toward a separate crime.” 136 S. Ct. at 2257.

       In Mathis, the Court found that a Supreme Court of Iowa decision definitively
resolved the elements/means issue under state law; thus, the Court declared, the
question “is easy in this case.” 136 S. Ct. at 2256. Here, we have found no definitive
Supreme Court of Wisconsin decision. However, that Court decided in State v.
Baldwin, 304 N.W.2d 742, 747 (Wis. 1981), subsection (a) of Wis. Stat. § 940.225(2)
“differs significantly from the offenses described in paragraphs (b), (c), (d) and (e),
violation of each of which also constitutes second degree sexual assault.” This is
strong evidence the Wisconsin Supreme Court would conclude that unlawful entry




                                         -5-
into the various “places” described in subsections (a)-(f) of § 943.10(1m) are
elements of distinct burglary offenses.2

       For these reasons, we conclude that subsections (a)-(f) of § 943.10(1m) list the
locational elements of divisible burglary offenses. Therefore, the district court
properly used the modified categorical approach to determine that Lamb’s prior
conviction was for a violation of subsection (a), burglary of a building or dwelling.
See Jones, 2016 WL 4186929, at *3; cf. United States v. Gundy, 842 F.3d 1156,
1166-68 (11th Cir. 2016) (Georgia burglary statute’s “alternative locational elements”
are overinclusive and divisible).

       B. On appeal, Lamb does not argue that the various subsections of
§ 943.10(1m) are indivisible. Rather, he argues (i) that subsection (a) itself is
indivisible; (ii) that subsection (a) is overinclusive because “dwelling” can include
places other than those encompassed by generic burglary; and (iii) that Descamps and
Mathis preclude use of the modified categorical approach to determine that he was
convicted of generic burglary of a building, rather than non-generic burglary of a
dwelling. In our prior opinion, we assumed that subsection (a) is overinclusive and
applied the modified categorical approach to determine that Lamb was convicted of
generic burglary. 638 F. App’x at 577. After Mathis, that analysis is unsound if
subsection (a) is both overinclusive and indivisible.


      2
       Compare State v. Derango, 613 N.W.2d 833, 839 (Wis. 2000), where the
Court ruled, without citing Baldwin, that Wis. Stat. § 948.07 “creates one offense
with multiple modes of commission” stated in six discrete subparagraphs. In
construing these other criminal statutes, the Court in Baldwin and Derango dealt with
the important but distinct issue of jury unanimity. We know of no rational way to
decide which of these state court decisions should govern the elements/means
question that controls ACCA divisibility in this case. As Justice Breyer predicted:
“What was once a simple matter [has] produce[d] a time-consuming legal tangle.”
Mathis, 136 S. Ct. at 2264 (Breyer, J., dissenting).

                                         -6-
      The Seventh Circuit recently concluded, after the careful review of Wisconsin
law required by Mathis, “that subsection (a) lists alternative means rather than
elements and is therefore indivisible.” United States v. Edwards, 836 F.3d 831, 838
(7th Cir. 2016). Although the issue is not free from doubt, we will defer to the
Seventh Circuit’s greater familiarity with Wisconsin law and assume without
deciding that § 943.10(1m)(a) is indivisible under Mathis.3

       If subsection (a) is indivisible under Mathis, as the Seventh Circuit concluded
in Edwards, we must apply the categorical approach to determine whether burglary
of a “building or dwelling” is generic burglary as defined in Taylor -- “unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime.” 495 U.S. at 599 (emphasis added). Lamb argues that a conviction
under subsection (a) does not fall, categorically, within the definition of generic
burglary because “‘dwelling’ might encompass non-generic places such as vehicles
or curtilage.” The notion that “dwelling” in § 943.10(1m)(a) might be construed to
include vehicles is contrary to the statute because burglary of various vehicles is
encompassed by the separate crimes enumerated in subsections (b), (d) and (e).

      Lamb’s speculation that burglary of a “dwelling” might encompass burglary of
a non-structural curtilage is at odds with the Supreme Court’s categorical approach:

             [T]o find that a state statute creates a crime outside the generic
      definition of a listed crime in a federal statute requires more than the
      application of legal imagination to a state statute’s language. It requires
      a realistic probability, not a theoretical possibility, that the State would
      apply its statute to conduct that falls outside the generic definition of a
      crime.



      3
       Edwards went on to decide a distinct issue under the Sentencing Guidelines
career offender provisions that is not before us and we do not consider.

                                          -7-
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), quoted in James v. United
States, 550 U.S. 192, 208 (2007). Lamb has cited no case, and we have found none,
that extended § 943.10(1m)(a) to include burglary of a dwelling’s curtilage. Rather,
prior ACCA decisions have held that a defendant who violates this subsection of the
Wisconsin burglary statute is convicted of “generic burglary.” See Jones, 2016 WL
4186929, at *3 (subsection (a) “corresponds with the ‘building or structure’ element
of generic burglary”); United States v. Anderson, 249 F. App’x 337, 338 (5th Cir.
2007); United States v. Franklin, 1996 WL 536498, at *1 (7th Cir. 1996).

       Section 943.10(1m) is part of the Trespass subchapter of the Wisconsin
Statutes Crimes Against Property chapter. Although “dwelling” is not defined in
§ 943.10, the term is defined in another section of this subchapter, entitled criminal
trespass to dwellings, as meaning “a structure or part of a structure that is used or
intended to be used as a home or residence.” Wis. Stat. § 943.14(1) (emphasis
added). In § 943.10(1m), burglary of a dwelling is linked in subsection (a) to
burglary of a building, a linkage that strongly suggests the word “dwelling” means
a particular type or subset of a “building or other structure,” consistent with the
express definition in § 943.14. As the Seventh Circuit reasoned in Edwards, “the
phrase ‘building or dwelling’ in subsection (a) is best understood as . . . providing
two examples of enclosed structures.” 836 F.3d at 837. We agree. Therefore, Lamb
was convicted of generic burglary and properly sentenced under the ACCA.

      The judgment of the district court is affirmed.
                     ______________________________




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