Guenther v. Marske, 17-3409

997 F.3d 735

Dean GUENTHER, Petitioner-Appellant,

v.Matthew MARSKE, Warden, Respondent-Appellee.

No. 17-3409

United States Court of Appeals, Seventh Circuit.

Argued September 30, 2020

Decided May 12, 2021

Joseph Aragorn Bugni, Attorney, Shelley M. Fite, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Petitioner-Appellant.

William A. Glaser, Attorney, Department of Justice, Criminal Division, Washington, DC, Alice H. Green, Attorney, Office of the United States Attorney, Madison, WI, for Respondent-Appellee.

Before Sykes, Chief Judge, and Wood and Brennan, Circuit Judges.

Sykes, Chief Judge.

In 2005 Dean Guenther was convicted of a federal firearms crime in Minnesota and was sentenced as an armed career criminal based in part on his prior Minnesota burglary convictions. His direct appeal failed in the Eighth Circuit, as did his petition for collateral review under 28 U.S.C. § 2255. He is currently serving his lengthy sentence in a federal prison in Wisconsin. In 2017 Guenther sought habeas relief under 28 U.S.C. § 2241 in the Western District of Wisconsin. Relying on Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016), and United States v. McArthur , 850 F.3d 925 (8th Cir. 2017), he argued that his sentence is unlawful because his Minnesota burglary convictions are not "violent felonies" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The district judge denied the petition.

We reverse. A § 2255 motion in the sentencing court is normally the exclusive method to collaterally attack a federal sentence, but the "saving clause" in § 2255(e) provides a limited exception.¹ The clause permits a prisoner to seek § 2241 habeas relief in the district where he is confined if "the remedy by motion is inadequate or ineffective to test the legality of his detention." § 2255(e). We have construed the saving clause to preserve a path for § 2241 relief in a narrow set of circumstances—namely, when the prisoner relies on an intervening statutory decision announcing a new, retroactive rule that could not have been invoked in his first § 2255 motion and the error is serious enough to amount to a miscarriage of justice. See Chazen v. Marske , 938 F.3d 851, 856 (7th Cir. 2019) (synthesizing the doctrine).

Our decision in Chazen is analogous in all material respects and makes clear that Guenther has satisfied most of the requirements for the saving-clause gateway to § 2241. The only question left unanswered by Chazen is whether Guenther's ACCA-enhanced sentence amounts to a miscarriage of justice. That question folds into the merits of whether Guenther's Minnesota burglary convictions are ACCA predicates.

The parties disagree on whether the answer to this question should come from the law of our circuit (the circuit of confinement) or the Eighth Circuit (the circuit of conviction). We declined to settle the choice-of-law debate in Chazen because the government argued in the district court that the law of the circuit of confinement—this circuit—should control. Id. at 860. That position, if accepted, meant no relief. Although the Eighth Circuit had held in McArthur that Minnesota burglary is not an ACCA predicate, our circuit had not addressed the question. By the time Chazen reached this court, however, the tables had turned. McArthur ’s validity had become clouded, and we had broadly concluded in Van Cannon v. United States , 890 F.3d 656, 665 (7th Cir. 2018), that Minnesota burglary is not an ACCA predicate. Chazen , 938 F.3d at 860.

In Chazen we held the government to the position it took in the district court and applied the law of this circuit. Id. at 860–63. We follow the same approach here. Under Van Cannon , Guenther's Minnesota burglary convictions are not ACCA predicates. We remand with instructions to grant the habeas petition.

I. Background

In May 2005 a federal jury in the District of Minnesota convicted Guenther of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). The offense usually carries a maximum sentence of ten years in prison, id. § 924(a)(2), but the ACCA increases the penalty to a 15-year minimum and a maximum of life in prison if the defendant has three prior convictions for a "violent felony," id. § 924(e)(1). Guenther's presentence report ("PSR") identified four possible ACCA predicates: two convictions for first-degree burglary (in 1990 and 1992), one for second-degree burglary (in 1986), and one for kidnapping (in 1990), all under Minnesota law.

The ACCA defines "violent felony" as any federal or state crime punishable by a prison term exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another," id. § 924(e)(2)(B)(i) (the "elements clause"); or "is burglary, arson, or extortion," id. § 924(e)(2)(B)(ii) (the "enumerated offenses clause"); or "otherwise involves conduct that presents a serious potential risk of physical injury to another," id. (the "residual clause"). At the time of sentencing, Guenther's burglary convictions qualified as ACCA predicates under the enumerated-offenses clause, and his kidnapping conviction qualified under the residual clause.² The district judge applied the enhanced penalties under the ACCA and imposed a prison term of 327 months, the top of the range under the Sentencing Guidelines.

The Eighth Circuit affirmed on direct appeal. In 2008 Guenther filed a pro se motion seeking collateral relief under § 2255, raising a claim of ineffective assistance of counsel and also challenging his ACCA-enhanced sentence. The judge denied the motion and declined to issue a certificate of appealability. The Eighth Circuit likewise declined to certify the case for appeal.

The legal landscape shifted following Guenther's § 2255 motion. As we explained in Chazen , the doctrinal path is quite circuitous. Because this case is materially identical, a shortened version will suffice here. To understand the relevant legal developments requires a bit of background about Minnesota's burglary statute, so we begin there.

The Minnesota crimes of first-degree and second-degree burglary are set forth in a single statute and start from the same basic definition, then add different sets of aggravating circumstances. More specifically, "[w]hoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice," commits second-degree burglary if certain aggravating circumstances are present (the second-degree aggravators mostly relate to the nature of the burglarized premises). MINN. STAT. § 609.582(2)(a). The same basic act is elevated to first-degree burglary if more serious aggravating circumstances are present (the first-degree aggravators mostly relate to the use of a weapon or the presence of a person in the burglarized premises). Id. § 609.582(1).

To qualify as ACCA predicates, the elements of Guenther's burglary crimes must categorically match those of "generic burglary," which the Supreme Court has said "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." Taylor v. United States , 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This categorical approach, as is now well understood, entails a comparison of legal elements of the crimes; the underlying facts do not matter. At the time of Guenther's § 2255 motion in 2008, Eighth Circuit precedent supported a categorical match. Cf. United States v. LeGrand , 468 F.3d 1077, 1081 (8th Cir. 2006) (holding that Minnesota burglary qualifies under the analogous "crime of violence" definition in the Sentencing Guidelines).

Seven years after Guenther's § 2255 motion, the Supreme Court held that the ACCA's residual clause is unconstitutionally vague. Johnson v. United States , 576 U.S. 591, 597–98, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). That knocked out Guenther's kidnapping conviction as an ACCA predicate. His qualifying convictions were down to three.

Then came Mathis , 136 S. Ct. 2243, which clarified Taylor ’s categorical approach for classifying prior convictions for purposes of recidivist sentencing enhancements. Mathis addressed the common problem of alternatively phrased criminal statutes—a problem first identified in Taylor and Shepard v. United States , 544 U.S. 13, 25–26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and elaborated in Descamps v. United States , 570 U.S. 254, 262–63, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Briefly, an alternatively phrased criminal statute may list different sets of elements (thus defining more than one crime) or it may simply list different factual means of committing an element of a single crime. If the statutory alternatives are separate elements, then the statute defines multiple separate crimes and is said to be "divisible," which permits the court to look to the charging document and a limited set of additional sources "to determine what crime, with what elements, [the] defendant was convicted of." Mathis , 136 S. Ct. at 2249. If, on the other hand, the statutory alternatives are simply different factual means of committing the crime, then the statute is said to be "indivisible" and the court must find a categorical match between its elements and those of the generic offense. Id. at 2248.

Mathis effectively "narrowed the range of state statutes that qualify as violent felony predicates," leading the Eighth Circuit to rethink its understanding of Minnesota burglary. Chazen , 938 F.3d at 855. In McArthur the court concluded that Minnesota's third-degree burglary offense, which appears in the same statute as the first- and second-degree offenses, sweeps more broadly than generic burglary and thus does not qualify as an ACCA violent felony. 850 F.3d at 939–40.

The third-degree offense is defined in similar language as the first- and...