November 14, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16 C 6606 -
Robert W. Gettleman, Judge.
from the United States District Court for the Southern
District of Illinois. No. 3:15-CR-30013-DRH-1 - David R.
Bauer, Easterbrook, and Sykes, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
appeals, which we have consolidated for decision, present the
question whether a conviction for residential burglary in
Illinois under 720 ILCS 5/19-3 (1982) counts as
"burglary" for the purpose of the Armed Career
Criminal Act, 18 U.S.C. §924(e). Taylor v. United
States, 495 U.S. 575 (1990), holds that a state's
label is not dispositive and that a conviction counts only if
the offense meets a federal definition of "generic
burglary". We held in United States v. Haney,
840 F.3d 472 (7th Cir. 2016), that the pre-1982 version of
Illinois law covering ordinary burglary did not satisfy the
federal definition. Michael Smith and Michael Khoury
(collectively "defendants") ask us to hold the same
about the residential-burglary statute under which they were
facts and procedural histories of these cases do not matter.
It is enough to say that each defendant was convicted of
possessing a firearm, see 18 U.S.C. §922(g)(1), despite
earlier convictions making that illegal. Each is serving 180
months' imprisonment, the statutory floor for someone
convicted of this crime who has three or more earlier
convictions for a violent felony or serious drug offense.
Section 924(e)(2)(B)(ii) includes "burglary" in the
list of violent felonies but does not define
"burglary." For both defendants a 180-month
sentence is proper only if a conviction for residential
burglary in Illinois under the 1982 revision of 720 ILCS
5/19-3 is "generic burglary" under Taylor.
The appeals in both defendants' cases arise from
collateral attacks, but the United States waived all
procedural defenses in order to facilitate appellate
resolution of the question, which affects many other
sentences. None of the procedural matters is jurisdictional,
so the waivers are conclusive. See Wood v. Mi-lyard,
566 U.S. 463 (2012).
district judges relied on Dawkins v. United States,
809 F.3d 953 (7th Cir. 2016), which they read as conclusively
establishing that residential burglary in Illinois satisfies
Taylor. But the only question addressed in
Dawkins was whether residential burglary in Illinois
includes the element of breaking and entering; we answered
yes. Dawkins did not consider whether the Illinois
offense includes the element of entering a "building or
other structure" (Taylor, 495 U.S. at 598).
That a given decision resolves one legal argument bearing on
a subject does not mean that it has resolved all possible
legal arguments bearing on that subject. See
Rodriguez-Contreras v. Sessions, 873 F.3d 579, 580
(7th Cir. 2017). So defendants' argument about the
building-or-structure element is open.
Illinois, "[a] person commits residential burglary who
knowingly and without authority enters the dwelling place of
another with the intent to commit therein a felony or
theft." 720 ILCS 5/19-3(a). (This is how that statute
read between 1982 and 2001; changes since then are irrelevant
for the purpose of §924(e).) Another statute defines
(a)Except as otherwise provided in subsection (b) of this
Section, "dwelling" means a building or portion
thereof, a tent, a vehicle, or other enclosed space which is
used or intended for use as a human habitation, home or
(b) For the purposes of Section 19-3 of this Code,
"dwelling" means a house, apartment, mobile home,
trailer, or other living quarters in which at the time of the
alleged offense the owners or occupants actually reside or in
their absence intend within a reasonable period of time to
720 ILCS 5/2-6. (This definition has been in force since
1987, before defendants' predicate crimes occurred.)
Defendants maintain that "a tent, a vehicle, or other
enclosed space" is not a "structure" as the
Supreme Court required in Taylor- which adopted as
the common-law definition of burglary
any crime, regardless of its exact definition or label,
having the basic elements of unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent
to commit a crime.
U.S. at 599. Subsection (a), in which the phrase "a
tent, a vehicle, or other enclosed space" appears, does
not apply to the crime of residential burglary. To be
convicted of that offense, a person must enter "a house,
apartment, mobile home, trailer, or other living
quarters". And that phrase seems to come ...