United States v. Fisher

25 F.4th 1080

UNITED STATES of America, Plaintiff - Appellee

v.Wayne Michael FISHER, also known as Burrito, Defendant - Appellant

No. 21-2151

United States Court of Appeals, Eighth Circuit.

Submitted: December 17, 2021

Filed: February 18, 2022

Bradley M. Endicott, Lisa D. Kirkpatrick, Assistant U.S. Attorneys, U.S. Attorney's Office, Saint Paul, MN, Andrew Robert Winter, U.S. Attorney's Office, District of Minnesota, for Plaintiff-Appellee.

Wayne Michael Fisher, Federal Correctional Institution, Pekin, IL, Pro Se.

Daniel L. Gerdts, Law Office of Daniel Gerdts, Minneapolis, MN, for Defendant-Appellant.

Before SMITH, Chief Judge, GRUENDER and KOBES, Circuit Judges.

GRUENDER, Circuit Judge.

Wayne Fisher appeals the district court's¹ determination that his prior Minnesota first-degree burglary conviction qualifies as a violent felony under 21 U.S.C. § 841(b)(1)(A) and the district court's denial of his request to reduce his sentence based on time served in tribal jail. We affirm.

I.

Wayne Fisher was charged with one count of conspiracy to distribute fifty grams or more of methamphetamine and two counts of possession with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The Government also filed an information claiming that Fisher was subject to an enhanced sentence based on his prior conviction for first-degree burglary under Minnesota Statutes section 609.582, subdivision 1(c). See 21 U.S.C. §§ 841(b)(1)(A), 851.

Fisher pleaded guilty to one count of possession with intent to distribute methamphetamine but objected to the enhanced sentence. In addition, Fisher requested sentencing credit for the time he served in tribal jail for a tribal court conviction based on the same conduct.

The district court overruled Fisher's objection to the sentence enhancement, concluding that his prior burglary conviction qualifies as a "serious violent felony" under 21 U.S.C. § 841(b)(1)(A). The district court also denied Fisher's request to credit his time served in tribal jail against his sentence on the ground that it did not have the authority to impose a sentence below the mandatory minimum. The district court sentenced Fisher to 180 months’ imprisonment, the statutory minimum for a defendant with a prior "serious violent felony" conviction. See § 841(b)(1)(A). Fisher appeals, challenging the district court's determination that his prior burglary conviction qualifies as a "serious violent felony" under § 841(b)(1)(A) and the district court's refusal to credit his time served in tribal jail against his sentence.

II.

We begin with Fisher's challenge to the district court's conclusion that his Minnesota conviction for first-degree burglary qualifies as a "serious violent felony" under § 841(b)(1)(A). We review the district court's "legal determination that a prior conviction is a predicate offense de novo." United States v. Oliver , 987 F.3d 794, 805 (8th Cir. 2021) (internal quotation mark omitted).

Although a person convicted of an offense involving fifty grams or more of methamphetamine normally faces a minimum sentence of 10 years’ imprisonment, § 841(b)(1)(A)(viii), the minimum sentence is 15 years’ imprisonment if the person committed the offense "after a prior conviction for a serious drug felony or serious violent felony ha[d] become final," § 841(b)(1)(A). An offense is a "serious violent felony" if it is specifically enumerated in 18 U.S.C. § 3559(c)(2)(F), which does not include burglary, or is "any other offense ... that has as an element the use, attempted use, or threatened use of physical force against the person of another." See 21 U.S.C. § 802(58) (defining "serious violent felony" with reference to the definition in 18 U.S.C. § 3559(c)(2) ).

To determine whether a conviction "has as an element the use, attempted use, or threatened use of physical force against the person of another," § 3559(c)(2)(F)(ii), we apply a categorical approach. See Oliver , 987 F.3d at 806 ; Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 2247-48, 195 L.Ed.2d 604 (2016). "In that analysis, we compare the elements of the statute under which the defendant was convicted with the ‘generic’ definition of [the crime]." United States v. McArthur , 850 F.3d 925, 937 (8th Cir. 2017). The "generic crime" is "the offense as commonly understood." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). If a crime of conviction's elements are the same or narrower than the generic crime's elements, and the generic crime is a "violent felony," then the crime of conviction is also a "violent felony." See McArthur , 850 F.3d at 937 ; United States v. Martin , 15 F.4th 878, 883-84 (8th Cir. 2021). In other words, the crime of conviction must "fit[ ] within" the generic crime, such that anyone who commits the former has also committed the latter. See Martin , 15 F.4th at 883-84. If a statute contains alternatives, some of which do not have a force element, then we must determine whether the statute is divisible into alternative elements—separate crimes—or instead sets forth alternative factual means to commit a single offense. Mathis , 136 S. Ct. at 2249 ; United States v. Mata , 869 F.3d 640, 642 (8th Cir. 2017). "If statutory alternatives carry different punishments, then ... they must be elements," meaning they are treated as separate crimes. Mathis , 136 S. Ct. at 2256. When making the means-or-elements determination, we may consider authoritative state court decisions. Id . "[I]f state law fails to provide clear answers," we may look at "the record of a prior conviction itself ... for the sole and limited purpose of determining whether [the listed items are] element[s] of the offense." Id. at 2256-57 (internal quotation marks omitted) (second and third alterations in original).

"[I]f the statute is divisible, setting forth ‘multiple, alternative versions of the crime,’ and not all of the alternatives satisfy the generic definition, then we apply the ‘modified categorical approach’ to decide which of the alternatives was the basis for the conviction." McArthur , 850 F.3d at 937-38 (quoting Descamps , 570 U.S. at 262-65, 133 S.Ct. 2276 ). "[T]o determine what crime, with what elements, a defendant was convicted of," we may consider "a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy)." Mathis , 136 S. Ct. at 2249 ; see also Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Then, we determine whether that crime is broader than the generic offense. Descamps , 570 U.S. at 263, 133 S.Ct. 2276. The crime of conviction qualifies as a "serious violent felony" only if it is not broader than the generic offense. See id. at 260-65, 133 S.Ct. 2276.

Minnesota's first-degree burglary statute makes it a crime to

enter[ ] a building without consent and with intent to commit a crime, or enter[ ] a building without consent and commit[ ] a crime while in the building ... if:

(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building;

(b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or

(c) the burglar assaults a person within the building or on the building's appurtenant property.

Minn. Stat. § 609.582, subd. 1. The statute provides a mandatory minimum sentence of six months for violations of paragraph (a), "burglary of an occupied dwelling," but no mandatory minimum sentence for violations of paragraphs (b) or (c). Id. at subd. 1a.

Fisher and the Government agree that the statute is broader than the generic definition of burglary. Thus, we must determine whether the statute is divisible. See Mathis , 136 S. Ct. at 2249. Because (a) has a different punishment from (b) and (c), (a) "must be [an] element[ ]," indicating a separate crime. See id. at 2256. Fisher argues that (b) and (c)—(c) being the paragraph he was convicted under—cannot denote elements of separate crimes because they do not have different punishments. See id. But if (a) is an element, then first-degree burglary is not a distinct crime in and of itself, and the statutory structure suggests that (b) and (c) are separate crimes like (a).

Minnesota state court cases treat each paragraph as a distinct crime rather than as an alternative factual means of committing the same crime. Defendants are specifically charged and convicted of (a), (b), or (c), see, e.g., State v. Spence , 768 N.W.2d 104, 107 (Minn. 2009) ; State v. Hodges , 384 N.W.2d 175, 178 n.1, 182-83 (Minn. Ct. App. 1986), the elements of which need to be proven beyond a reasonable doubt, see, e.g. , State v. Kelley , No. A19-0997, 2020 WL 3635298, at *1 (Minn. Ct. App. July 6, 2020) (unpublished); State v. Nyansikera , No. A14-0993, 2015 WL 1401573, at *1-2 (Minn. Ct. App. March 30, 2015) (unpublished). The Minnesota Court of Appeals has also referred to each paragraph as a separate crime. State v. Mitchell , 881 N.W.2d 558, 562 (Minn. Ct. App. 2016) (referring to "the elements of first-degree burglary (dangerous weapon)" and "the elements of first-degree burglary (assault)"). Discussing (b) and (c), it explained that "[s]ince each crime requires proof of an element that the other does not, neither crime necessarily is proved when the other is proved." Id. (emphasis added).

Fisher's arguments do not persuade us that Minnesota courts treat the paragraphs as means. Fisher argues that Minnesota courts have treated similarly structured statutes as having alternative means. But those statutes are distinguishable because none of them has separate punishments for different paragraphs like first-degree burglary does. See Minn. Stat. §§ 609.2242, .25, .582. And Minnesota courts...