Jerry L. Van Cannon, Petitioner-Appellant,
United States of America, Respondent-Appellee.
January 18, 2018
from the United States District Court for the Western
District of Wisconsin. No. 16-cv-433-bbc - Barbara B. Crabb,
Sykes and Hamilton, Circuit Judges, and Lee, District Judge.
Jerry Van Cannon pleaded guilty to possessing a firearm as a
felon in violation of 18 U.S.C. § 922(g)(1). He was
sentenced under the Armed Career Criminal Act
("ACCA"), which imposes higher penalties on §
922(g) violators who have three prior convictions for a
"violent felony" or "serious drug
offense." Id. § 924(e). Van Cannon's
presentence report identified five qualifying ACCA
predicates, including Iowa convictions for burglary and
attempted burglary and a Minnesota conviction for
second-degree burglary. The district judge accepted this
tally and imposed the mandatory minimum 15-year prison term.
the Supreme Court invalidated, on vagueness grounds, the
provision in the "violent felony" definition known
as the "residual clause." Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015). Within a year Van
Cannon filed for relief under 28 U.S.C. § 2255 in light
of Johnson. A few days later, the Supreme Court held
that Iowa burglary does not qualify under another part of the
definition. Mathis v. United States, 136 S.Ct. 2243,
government conceded the Johnson error. The Iowa
attempted burglary was a residual-clause offense and no
longer counted toward Van Cannon's ACCA total. And
Mathis knocked out the Iowa burglary. Still, three
predicates remained, so the government argued that the
Johnson error was harmless. The judge agreed and
denied § 2255 relief.
weeks later, the judge withdrew her order. A recent Eighth
Circuit opinion had cast doubt on whether one of the
remaining predicates-the Minnesota second-degree
burglary-still counted after Mathis. See United
States v. McArthur, 836 F.3d 933 (8th Cir. 2016),
amended & superseded by United States v.
McArthur, 850 F.3d 925 (8th Cir. 2017). The judge
appointed counsel and ordered briefing. Van Cannon argued
that Minnesota second-degree burglary is not an ACCA
predicate; the government maintained that it is. The judge
ultimately sidestepped the issue, concluding instead that Van
Cannon's claim was untimely.
reverse. First, Van Cannon's § 2255 claim was
timely; he properly challenged his sentence within one year
of Johnson. Second, we agree with the Eighth Circuit
that the Minnesota crime of second-degree burglary does not
qualify as an ACCA predicate. See United States v.
Crumble, 878 F.3d 656, 661 (8th Cir. 2018); see also
McArthur, 850 F.3d at 937-40. A burglary counts for ACCA
purposes only if its elements match the elements of
"generic" burglary, defined as "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 (1990). The Minnesota
statute covers a broader swath of conduct than generic
burglary. It permits conviction without proof of burglarious
intent-that is, without proof that the offender had the
intent to commit a crime at the moment he unlawfully entered
or unlawfully "remained in" the building or
structure. Accordingly, the Minnesota burglary drops out of
the ACCA total, leaving only two predicates. Van Cannon is
entitled to resentencing.
Cannon is no stranger to trouble with the law. From 1984 to
2008, he was convicted of multiple crimes in three states. As
relevant here, his record includes an Iowa second-degree
burglary (1984), an Iowa attempted burglary (1992), an Iowa
drug felony (1993), a Wisconsin armed robbery (1996), a
Minnesota second-degree burglary (2003), and a Wisconsin
fall of 2008, police received a tip that Van Cannon was
selling methamphetamine out of a motel in Eau Claire County,
Wisconsin. Several days later the tipster reported that Van
Cannon had expressed interest in purchasing an assault rifle
and hinted at possible robberies in the near future.
informant agreed to cooperate with police and introduced Van
Cannon to an undercover officer posing as a source for
firearms. Van Cannon told the officer he wanted "nothing
less than a .357 magnum." Recorded phone conversations
followed, and the officer eventually called Va n Cannon and
offered to sell him a Rock Island Armory .45-caliber pistol
for $400. Van Cannon was short on cash, so the officer agreed
to front the gun on the condition that Van Cannon would pay
$800 to $900 after he completed a "job." The two
met in a Walmart parking lot for the exchange. Van Cannon
took possession of the gun and was promptly arrested.
jury indicted Van Cannon for possessing a firearm as a felon
in violation of § 922(g)(1). He pleaded guilty as
charged. The crime ordinarily carries a 10-year maximum,
see 18 U.S.C. § 924(a)(2), but the ACCA sets a
15-year minimum term and lifts the maximum to life in prison
if the defendant has three or more prior convictions for a
"violent felony" or "serious drug offense,
" § 924(e).
ACCA defines "violent felony" as "any crime
punishable by imprisonment for a term exceeding one
• "has as an element the use, attempted use, or
threatened use of physical force against the person of
• "is burglary, arson, or extortion, [or] involves
the use of explosives"; or
• "otherwise involves conduct that presents a
serious potential risk of physical injury to another."
presentence report ("PSR") identified five
qualifying ACCA predicates: Iowa convictions for burglary and
attempted burglary, the Iowa drug offense, the Wisconsin
armed robbery, and the Minnesota second-degree burglary. Van
Cannon's Wisconsin fleeing conviction also qualified at
the time, see Sykes v. United States, 564 U.S. 1
(2011), overruled by Johnson, 135 S.Ct. 2551, but
the PSR didn't include it in the ACCA count, perhaps
because it was surplus. The judge ...