Jamie Nilsen v. United States ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2878
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Jamie Nicol Nilsen
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: June 15, 2018
Filed: July 26, 2018
[Unpublished]
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Before KELLY, ARNOLD, and STRAS, Circuit Judges.
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PER CURIAM.
Jamie Nicol Nilsen appeals the district court’s denial of his motion to vacate,
set aside, or correct his sentence under 28 U.S.C. § 2255 and Johnson v. United
States, 135 S. Ct. 2551 (2015). In 2012, Nilsen pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and in 2013, he was
sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),
based on his prior North Dakota aggravated assault conviction, and two North Dakota
burglary convictions under N.D. Cent. Code § 12.1-22-02(1). The district court
denied Nilsen’s § 2255 motion, concluding that his aggravated assault and burglary
convictions still qualified as violent felonies under the ACCA. During the pendency
of this appeal, another panel of this court held that North Dakota burglary convictions
do not qualify as violent felonies under the ACCA. See United States v. Kinney, 888
F.3d 360, 363–65 (8th Cir. 2018) (“[C]onvictions under N.D. Cent. Code § 12.1-22-
02 . . . cannot categorically qualify as violent felonies under the ACCA.”), reh’g
denied, No. 16-3764 (8th Cir. July 6, 2018) (unpublished order). “It is a cardinal rule
in our circuit that one panel is bound by the decision of a prior panel.” Mader v.
United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (quoting Owsley v.
Luebbers, 281 F.3d 687, 690 (8th Cir. 2002)). Accordingly, the judgment of the
district court is reversed and this case is remanded to the district court for further
proceedings.
ARNOLD, Circuit Judge, concurring.
I concur fully in the per curiam opinion, but write separately to make a point
not raised by this appeal, namely, that the North Dakota burglary statute, N.D. Cent.
Code § 12.1-22-02, is divisible on its face. The statute proscribes a class C felony
offense, see § 12.1-22-02(1), and a class B felony offense, see § 12.1-22-02(2). Since
those offenses carry different punishments, see N.D. Cent. Code § 12.1-32-01(3), (4),
they are different offenses, instead of different means of committing a single offense.
See Mathis v. United States, 136 S. Ct. 2243, 2256 (2016).
In United States v. Kinney, 888 F.3d 360 (8th Cir. 2018), we asserted that
"convictions under N.D. Cent. Code § 12.1-22-02 . . . cannot categorically qualify as
violent felonies under the ACCA." Id. at 364. But we could not have meant that both
subsections of the statute are overbroad since Kinney never even looked at the second
subsection. We considered only whether the class C burglary offense in N.D. Cent.
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Code § 12.1-22-02(1) is indivisible and overbroad: We did not mention the narrower
class B burglary offense(s) in § 12.1-22-02(2). In Kinney, moreover, we applied the
categorical approach only to the phrase "building or occupied structure" in subsection
(1) of the statute. See id. We did not evaluate subsection (2) and had no reason to do
so. Kinney's North Dakota burglary convictions were only of the class C offense, and
the arguments on appeal focused only on subsection (1). Though Kinney speaks
broadly, we need to read it in the context of the issue it addressed and decided and
ought to interpret its holding as being restricted to that issue. See German All. Ins. Co.
v. Home Water Supply Co., 226 U.S. 220, 234 (1912).
In an appropriate future case, in other words, I believe parties are free to raise
the issue of whether N.D. Cent. Code § 12.1-22-02(2) is indivisible or overbroad.
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