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United States v. Lamb

United States Court of Appeals, Eighth Circuit

February 3, 2017

United States of America Plaintiff- Appellee
v.
Jonathon Adam Lamb Defendant-Appellant

          Submitted: January 18, 2017

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

          WOLLMAN, BRIGHT LOKEN Circuit Judges.[*]

          LOKEN, Circuit Judge.

         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 court[1] 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 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

         [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 ...

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