United States of America v. Dennis M. Franklin

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Decided July 2, 2019
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-1580
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENNIS M. FRANKLIN,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District
of Wisconsin
No. 3:14-CR-00128
James D. Peterson,
Chief Judge.
____________________________________________________________________________
No. 16-1872
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHANE SAHM,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District
of Wisconsin
No. 3:15-CR-00110
James D. Peterson,
Chief Judge.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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Nos. 16-1580 & 16-1872 Page 2
O R D E R
The Supreme Court of Wisconsin has answered the question of state law that this
court certified to it. United States v. Franklin, 928 N.W.2d 545 (Wis. 2019). Burglary under
Wisconsin law, Wis. Stat. § 943.10(1m), applies to burglaries of vehicles as well as
buildings and dwellings. That means the state crime is broader than the federal generic
crime of burglary that may serve as a predicate for enhanced offenses under the federal
Armed Career Criminal Act, 18 U.S.C. § 924(e). See Mathis v. United States, 136 S. Ct.
2243 (2016) (Iowa burglary statute broader than federal generic burglary because it
applies to burglaries of vehicles). In response to our request, the Supreme Court of
Wisconsin has decided definitively that the state crime is not “divisible” among
different locations for purposes of applying the Armed Career Criminal Act. As a result,
the prior Wisconsin burglary convictions of defendants-appellants Dennis Franklin and
Shane Sahm do not qualify as prior convictions for “violent felonies” to support their
federal sentences under the Armed Career Criminal Act. The parties have submitted
statements of position under Circuit Rule 52. They and we agree on the next step. The
federal sentences for both Franklin and Sahm in these appeals are hereby VACATED
and their cases are REMANDED to the district court for resentencing without applying
the Armed Career Criminal Act, 18 U.S.C. § 924(e).

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