United States v. Wakinyan McArthur , 836 F.3d 931 ( 2016 )


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  • United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-3335
    ___________________________
    United States of America,
    lllllllllllllllllllll Plaintiff - Appellee,
    v.
    Wakinyan Wakan McArthur,
    lllllllllllllllllllll Defendant - Appellant.
    ___________________________
    No. 14-3336
    ___________________________
    United States of America,
    lllllllllllllllllllll Plaintiff - Appellee,
    v.
    William Earl Morris,
    lllllllllllllllllllll Defendant - Appellant.
    ___________________________
    No. 14-3367
    ___________________________
    United States of America,
    lllllllllllllllllllll Plaintiff - Appellee,
    v.
    Anthony Francis Cree,
    lllllllllllllllllllll Defendant - Appellant.
    ____________
    Appeals from United States District Court
    for the District of Minnesota - St. Paul
    ____________
    Submitted: May 18, 2016
    Filed: September 8, 2016
    ____________
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
    ____________
    COLLOTON, Circuit Judge.
    A jury convicted Anthony Cree, William Morris, and Wakinyan McArthur of
    criminal offenses stemming from their involvement with the Native Mob, a
    Minnesota prison and street gang. All three appeal and argue that the district court
    erred as to the sufficiency of the evidence, jury instructions, or sentencing. We affirm
    in part, reverse in part, and remand for further proceedings.
    I.
    A.
    As each defendant challenges the sufficiency of the evidence in support of his
    convictions, we recite the facts in the light most favorable to the verdicts. United
    -2-
    States v. Paris, 
    816 F.3d 1037
    , 1038-39 (8th Cir. 2016). The Native Mob is a prison
    and street gang that started in south Minneapolis in the mid-1990s. The Mob
    developed a large presence in Minnesota and now has over two hundred members in
    the state. Its members participate in a variety of criminal acts, including sales of
    controlled substances and assaults on members of rival gangs. Through these
    activities, Mob members seek to promote the gang’s reputation and to protect its
    members and territory.
    In December 2009, McArthur called for a Mob meeting. At the meeting, Mob
    members elected a new group of leaders in the gang’s hierarchical structure. Kenneth
    Roberts was elected War Chief, and Christopher Wuori was named Cass Lake
    Representative. Members also agreed to hold monthly statewide meetings.
    McArthur served as Chief of the Mob, the top leadership position, from 2010
    until 2012. Under McArthur, members had easy access to firearms. Members could
    request a firearm from another member, or they could retrieve a firearm from one of
    several Mob associates who stored the weapons. The Mob also placed a premium on
    retaining firearms. At one meeting, McArthur instructed Mob members to “cherish”
    firearm ownership and to stop losing Mob weapons.
    McArthur and Wuori also increased the Mob’s drug trafficking operations.
    The two men “pooled their money together” to purchase cocaine and divided equally
    the income derived from their drug sales. Wuori obtained cocaine from suppliers, and
    then converted the cocaine into crack cocaine. Wuori often completed the conversion
    process in a residence that he and McArthur shared in Cass Lake, Minnesota.
    Members frequented the house and assisted McArthur and Wuori in obtaining,
    packaging, and storing the drugs. McArthur and Wuori sold crack cocaine to several
    members, who then resold the drugs to individuals throughout Minnesota.
    -3-
    During McArthur’s term as Chief, he often encouraged members to harm rival
    gang leaders and others who posed a threat to the gang, urging members to be willing
    to “go out and shoot-‘em up.” At one of the Mob’s meetings, McArthur told
    members to attack an enemy of the Mob, instructing one member to shoot at the
    enemy’s residence. McArthur also said that the Mob “need[ed] to whack” the leader
    of an opposition gang, and that the leader’s death “would benefit us all.”
    Amos LaDuke, a former associate of the Mob, was the victim of a Mob attack.
    In early 2010, Mob members, including Wuori and Cree, concluded that LaDuke
    “needed to be whacked.” Morris also participated in discussions about LaDuke, and
    Wuori planned to give Morris a “gun . . . in case he seen Amos somewhere.” On
    March 4, 2010, LaDuke was walking in Cass Lake when a car, owned by Cree,
    approached. Cree, Morris, and two other people were in the vehicle. Morris got out
    of the car, carrying a firearm as LaDuke started to run away. Morris fired several
    rounds toward LaDuke, striking LaDuke three times before a former police officer
    drove his truck between Morris and LaDuke and ended the encounter. Morris fled
    the scene; authorities arrested him nearby shortly thereafter. Cree and the others in
    the car drove away during the shooting, and Cree was apprehended in an unrelated
    incident later that month.
    The Mob also went to great lengths to protect its drug distribution territory.
    Of particular concern to the Mob was Lawrence Daniels, a drug dealer who competed
    against the gang for control of the Cass Lake drug trade. Starting in May 2010, Mob
    members talked about harming Daniels in hopes of removing him from their territory.
    During one conversation, McArthur and Wuori told Mob members Roberts, Emilio
    Bunker, Jeremee Kraskey, Cory Oquist, and Pedro Sayers that they wanted to find
    Daniels and “eliminate him by any means.” McArthur and Wuori decided to send
    members to “get . . . information out” of a known associate of Daniels about Daniels’s
    whereabouts; from that excursion Mob members determined that Daniels was living
    in Bemidji, Minnesota.
    -4-
    Shortly after learning Daniels’s location, McArthur and other members,
    including Wuori, Bunker, Kraskey, and Roberts, discussed “going to Bemidji . . . and
    shooting” Daniels. On August 21, 2010, Wuori drove Bunker, Oquist, and Sayers to
    Bemidji, where the three men shot into a home where they believed Daniels lived.
    They realized soon after, however, that Daniels had no connection to the residence.
    In the presence of McArthur and Roberts, the four members recounted their error.
    Days later, on August 24, some of the same members made a second attempt on
    Daniels, shooting at the Raisch residence where Daniels was staying.
    The Mob continued to pursue Daniels. At the request of McArthur and Wuori,
    Mob member Dale Pindegayosh agreed to participate in a home invasion to intimidate
    Daniels. On March 28, 2011, Pindegayosh and three other members, armed with
    firearms, broke into the home of Daniels’s father-in-law, John Wilke. Approximately
    two months later, McArthur and Wuori requested that Pindegayosh rob the Wilke
    home. Pindegayosh opted not to complete the crime, and that was the last evidence
    concerning Mob activity toward Daniels.
    B.
    Federal and state authorities began investigating the Native Mob as early as
    2004. The investigation expanded after the LaDuke shooting. During the
    investigation, members-turned-informants wore recording devices to four Mob
    meetings in 2010 and 2011. Law enforcement officers conducted surveillance of
    several Mob members and installed GPS devices on vehicles used by members.
    In January 2012, a grand jury charged Cree, Morris, McArthur, and others in
    a multicount indictment. Cree, Morris, and McArthur proceeded to trial. After a six-
    week trial, which included testimony from victims of Mob attacks, former Mob
    members, and investigators, a jury convicted the men of several charges. After the
    -5-
    trial, the district court denied the defendants’ motions for judgments of acquittal or,
    in the alternative, new trials.
    Cree was convicted of conspiracy to participate in racketeering activity, see 18
    U.S.C. § 1962(d), and conspiracy to distribute and possess with intent to distribute
    controlled substances. See 21 U.S.C. §§ 841(a), (b), 846. He also was convicted of
    four counts related to his involvement in the LaDuke shooting: conspiracy to use and
    carry firearms during and in relation to a crime of violence, see 18 U.S.C. § 924(o),
    attempted murder in aid of racketeering, see 
    id. §§ 1959(a)(5),
    2, assault with a
    dangerous weapon in aid of racketeering, see 
    id. §§ 1959(a)(3),
    2, and use and
    carrying of a firearm during and in relation to a crime of violence. See 
    id. §§ 924(c),
    2. The district court sentenced Cree to 292 months’ imprisonment.
    Morris’s convictions stemmed from the LaDuke shooting. He was convicted
    of attempted murder in aid of racketeering, assault with a dangerous weapon in aid
    of racketeering, use and carrying of a firearm during and in relation to a crime of
    violence, and possession of a firearm as a previously convicted felon. See 
    id. § 922(g).
    Over Morris’s objection, the district court at sentencing ruled that Morris’s
    three prior Minnesota third-degree burglary convictions constituted “violent felonies”
    for purposes of the Armed Career Criminal Act. See 
    id. § 924(e).
    Because the court
    found that Morris had at least three previous convictions for violent felonies, he was
    subject to a mandatory minimum 180-month sentence and a maximum of life on his
    conviction for possession of a firearm as a previously convicted felon, Count 6. See
    
    id. The court
    sentenced Morris to 360 months’ imprisonment on that count and to
    420 months’ imprisonment total.
    McArthur was convicted of conspiracy to participate in racketeering activity,
    conspiracy to use and carry firearms during and in relation to a crime of violence,
    conspiracy to distribute and possess with intent to distribute controlled substances,
    and distribution of a controlled substance. See 21 U.S.C. § 841(a), (b); 18 U.S.C. § 2.
    -6-
    He also was convicted of two counts of use and carrying of a firearm during and in
    relation to a crime of violence. See 18 U.S.C. §§ 924(c), 2. The first § 924(c)
    conviction, Count 10, was based on McArthur’s involvement in the shooting at the
    Raisch home, and the district court sentenced him to a mandatory 60-month term on
    that charge. 
    Id. § 924(c)(1).
    The second § 924(c) conviction, Count 11, related to
    McArthur’s role in the Wilke home invasion. The court imposed a mandatory 300-
    month consecutive sentence for that conviction. 
    Id. In total,
    the district court
    sentenced McArthur to 516 months’ imprisonment.
    II.
    A.
    Cree’s lone argument on appeal is that the district court erred in denying his
    motion for judgment of acquittal because the government presented insufficient
    evidence to sustain his convictions. We review the denial of a motion for judgment
    of acquittal de novo, viewing the evidence in the light most favorable to the verdict.
    
    Paris, 816 F.3d at 1038-39
    . We will reverse only if no reasonable jury could have
    found the defendant guilty beyond a reasonable doubt. Id.; see Fed. R. Crim. P. 29.
    Cree first disputes the evidence in support of his conviction for conspiracy to
    participate in racketeering activity. See 18 U.S.C. § 1962(d). The government
    charged Cree with conspiring to violate 18 U.S.C. § 1962(c), a substantive provision
    of the Racketeer Influenced and Corrupt Organization (“RICO”) Act. Section
    1962(c) prohibits “any person . . . associated with any enterprise engaged in . . .
    interstate . . . commerce, to conduct or participate, directly or indirectly, in the
    conduct of such enterprise’s affairs through a pattern of racketeering activity.” To
    convict Cree under § 1962(d), the government was required to prove, inter alia, that
    a RICO enterprise existed and that Cree agreed that he or a coconspirator would
    -7-
    engage in a “pattern of racketeering activity.” Cree contests the evidence supporting
    these two findings.
    A RICO enterprise includes “any union or group of individuals associated in
    fact although not a legal entity.” 18 U.S.C. § 1961(4). An informal association of
    individuals constitutes a RICO enterprise when it is “a continuing unit that functions
    with a common purpose.” Boyle v. United States, 
    556 U.S. 938
    , 946, 948 (2009); see
    also United States v. Turkette, 
    452 U.S. 576
    , 583 (1981). Thus, an enterprise has “at
    least three structural features: a purpose, relationships among those associated with
    the enterprise, and longevity sufficient to permit these associates to pursue the
    enterprise’s purpose.” 
    Boyle, 556 U.S. at 946
    .
    Cree argues that the Mob was not a RICO enterprise. Members, according to
    Cree, had no shared purpose and were a “loose assembly of acquaintances,”
    committing crimes randomly and in their own interests.
    Trial testimony, however, provided ample support for the jury’s finding that the
    Mob constituted a RICO enterprise. The Mob had several purposes: Members
    worked to promote the Mob, develop its reputation, and protect its territory and
    members. At one meeting, McArthur reminded those in attendance that “[t]his ain’t
    about me. It ain’t about no individual person, man. It’s about us all.” For nearly two
    decades, the Mob operated as a coherent unit. Many members joined the Mob as
    teenagers and were in the gang for several years. The Mob had meetings, colors,
    signals, and symbols. Both written and unwritten rules governed members’ behavior.
    When a member violated one of the rules, Mob leaders meted out punishment, often
    in the form of a physical assault at the hands of other members. The Mob also used
    a hierarchical leadership structure, and when one leader stepped down, another
    member was selected for the role.
    -8-
    Sufficient evidence also supported the jury’s finding that Cree agreed that he
    or a coconspirator would engage in a “pattern of racketeering activity.” Section
    1961(1) labels dozens of federal and state offenses as racketeering activities,
    including “any act or threat involving murder . . . or dealing in a controlled
    substance . . . , which is chargeable under State law and punishable by imprisonment
    for more than one year.” A “‘pattern of racketeering activity’ requires at least two
    acts of racketeering activity, . . . the last of which occurred within ten years . . . after
    the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5).
    To establish a “pattern of racketeering activity,” the government also must
    prove two constituent elements: that the predicate acts of racketeering are related,
    and “that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v.
    Nw. Bell Tel. Co., 
    492 U.S. 229
    , 239 (1989). “Criminal acts are sufficiently
    related . . . if they had the same or similar purposes, results, participants, victims or
    methods of commission, or if they were otherwise ‘interrelated by distinguishing
    characteristics’ as opposed to being ‘isolated events.’” United States v. Hively, 
    437 F.3d 752
    , 761-62 (8th Cir. 2006) (quoting H.J. 
    Inc., 492 U.S. at 240
    ).
    Continuity of racketeering activity, “or its threat, simpliciter,” is a “temporal
    concept.” H.J. 
    Inc., 492 U.S. at 241-42
    . One manner of proving continuity is open-
    ended continuity, which asks whether “the related predicates themselves involve a
    distinct threat of long-term racketeering activity, either implicit or explicit.” 
    Id. at 242-43.
    Open-ended continuity may be established by showing that the racketeering
    acts “include a specific threat of repetition extending indefinitely into the future.” 
    Id. Cree contends
    that the racketeering activity of which he was convicted, the
    charges relating to the shooting of LaDuke and drug distribution, were neither related
    to one another nor sufficient to show a threat of continued criminal activity. On this
    view, he thus never agreed to participate in a “pattern of racketeering activity.”
    -9-
    Cree’s arguments are unpersuasive. Evidence supported the jury’s finding that
    the LaDuke shooting and Cree’s drug distribution amounted to a pattern of
    racketeering activity. The acts were related, in that Cree, Wuori, and other Mob
    members participated in both crimes, and the acts represented a consistent desire to
    further the Mob’s activities. See United States v. Darden, 
    70 F.3d 1507
    , 1525 (8th
    Cir. 1995). Because these two acts “by their very nature threaten repetition,” the jury
    also could find open-ended continuity. 
    Hively, 437 F.3d at 761
    . Mob members were
    known for assaulting competing drug dealers or others believed to pose a threat to the
    Mob’s interests. It is likely that members would, and testimony suggested they did
    in fact, continue these tactics after the LaDuke shooting and Cree’s arrest. See United
    States v. Delgado, 
    401 F.3d 290
    , 298 (5th Cir. 2005); United States v. Diaz, 
    176 F.3d 52
    , 93-94 (2d Cir. 1999). A reasonable jury, therefore, could convict Cree of
    conspiracy to participate in racketeering activity.
    Cree next complains that there was insufficient evidence to convict him of
    conspiring to distribute and possess with intent to distribute controlled substances.
    But sufficient evidence supported this conviction as well. Testimony showed that
    Mob members were engaged in a drug conspiracy and that Cree knowingly
    participated in the conspiracy. See United States v. Ramirez, 
    350 F.3d 780
    , 783-85
    (8th Cir. 2003). Mob members testified that Cree was present when Wuori cooked
    crack cocaine, and that Cree received distribution quantities of crack cocaine from
    Wuori on consignment that Cree then sold in the Cass Lake area. It was for the jury
    to judge the truthfulness of these witnesses, and witness credibility is virtually
    unreviewable on appeal. A reasonable jury could convict Cree of the charge based
    on this evidence.
    Cree’s last argument is that the evidence did not demonstrate his “complicity”
    in the LaDuke shooting, a finding necessary for his four convictions relating to that
    incident. Cree insists that he did not know Morris was going to shoot LaDuke. The
    record, however, shows that Cree was aware of the impending attack on LaDuke and
    -10-
    assisted Morris in completing the crime. Cree discussed harming LaDuke with
    Morris and other members, and he was present when Wuori agreed to provide a gun
    to Morris in case Morris encountered LaDuke. And LaDuke testified that about
    fifteen minutes before the shooting, he twice observed Cree staring at him as Cree and
    another man drove past his location. It was the jury’s prerogative to determine
    LaDuke’s credibility.
    Cree’s recounting of the day of the attack to fellow members further
    demonstrates his knowing participation in the incident. Cree told members that he
    had found locations that LaDuke frequented and saw LaDuke “slippin’” (i.e., leaving
    himself vulnerable to attack) in one such location. Cree then retrieved a firearm and
    picked up Morris to “take care” of LaDuke. On this record, a reasonable jury could
    convict Cree of the charges relating to the LaDuke attack, and the district court
    properly denied Cree’s motion for judgment of acquittal.
    Cree also argues that the district court should have granted his motion for a
    new trial because the verdict was against the weight of the evidence. In the district
    court, however, Cree did not move for a new trial based on the weight of the
    evidence; as a result, his claim is procedurally barred on appeal, and we need not
    consider it. United States v. Flynn, 
    196 F.3d 927
    , 932 (8th Cir. 1999). We thus
    affirm the judgment of the district court as to Cree.
    B.
    Morris raises three claims of error. Morris first avers that the district court
    wrongly denied his motion for judgment of acquittal because there was insufficient
    evidence to convict him of either attempted murder in aid of racketeering or assault
    with a dangerous weapon in aid of racketeering. See 18 U.S.C. §§ 1959(a), 2. Morris
    does not dispute the existence of a RICO enterprise engaged in racketeering activity
    that affected interstate commerce or that he assaulted and attempted to murder
    -11-
    LaDuke with a firearm. Morris instead alleges that the government did not
    demonstrate that he attacked LaDuke for a purpose listed in the statute—in this case,
    to maintain or increase his position in the Mob—because there was not proof beyond
    a reasonable doubt that he was, in fact, a Mob member. See 
    id. § 1959(a).
    The evidence was sufficient for the jury to conclude that Morris was a Mob
    member and that he shot LaDuke to maintain or increase his status in the gang.
    Morris discussed shooting LaDuke with other members, and some of those members
    later assisted Morris in carrying out the attack. A former member testified that in
    2010, Wuori introduced him to Morris “as if [Morris] was Fam,” a term members
    used to denote membership in the gang. While some members may not have been
    aware of Morris, witnesses attested that members often did not know everyone in the
    Mob due to the Mob’s large membership. Morris’s communications on the day of the
    shooting and during his subsequent incarceration further support a finding that he was
    a Mob member. Near the time of the shooting, Morris used a cellular telephone to
    call a telephone number at which both McArthur and Wuori were known to receive
    calls. While in prison, Morris contacted several Mob members via telephone and
    mail, including Cree, McArthur, and Wuori, and represented himself as a member of
    the Mob. And it is undisputed that members increased their standing in the gang by
    committing violent crimes. Thus, the jury reasonably decided that Morris attacked
    LaDuke to maintain or increase his position in the Mob.
    Morris next asserts that the jury instructions on the § 1959(a) charges
    constructively amended the indictment. An indictment is constructively amended
    when the government or court alters the essential elements of an offense set forth in
    the indictment. United States v. Mariano, 
    729 F.3d 874
    , 880 (8th Cir. 2013). The
    indictment here charged that Morris attacked LaDuke “for the purpose of maintaining
    and increasing” his position in the Native Mob. Morris complains that the district
    court’s instruction on that element did not match the indictment, because it asked
    whether Morris assaulted LaDuke “to gain entrance to, or to maintain, or to increase
    -12-
    his position” in the Mob. But Morris requested the precise jury instruction used by
    the district court, and he has therefore waived any claim of error based on an alleged
    constructive amendment. 
    Id. at 880-82;
    Petschl v. United States, 
    369 F.2d 769
    , 774
    (8th Cir. 1966).
    Morris’s last argument is that the district court erred in ruling that his prior
    third-degree burglary convictions constituted violent felonies under the Armed Career
    Criminal Act. Morris was convicted for possession of a firearm as a previously
    convicted felon. See 18 U.S.C. § 922(g). This offense carries a maximum sentence
    of 120 months’ imprisonment. 
    Id. § 924(a)(2).
    The Armed Career Criminal Act,
    however, provides for an enhanced sentence of 180 months to life in prison on a
    § 922(g) conviction, if the defendant “has three previous convictions . . . for a violent
    felony.” See 
    id. § 924(e)(1).
    Over Morris’s objection, the district court found that
    Morris had four prior “violent felony” convictions, three of which were for third-
    degree burglary in Minnesota, and that he was subject to the enhancement. The court
    thus imposed a 360-month sentence for Morris’s violation of § 922(g).
    Morris contends on appeal that the Minnesota third-degree burglary statute,
    Minn. Stat. Ann. § 609.582, subd. 3, sets forth multiple, alternative versions of the
    crime, that at least one of the statute’s alternatives is not a violent felony, and that the
    district court should have applied the “modified categorical approach” to determine
    whether his convictions were violent felonies. We conclude that Morris is correct.
    The Minnesota third-degree burglary statute provides that:
    Whoever enters a building without consent and with intent to steal or
    commit any felony or gross misdemeanor while in the building, or enters
    a building without consent and steals or commits a felony or gross
    misdemeanor while in the building, . . . commits burglary in the third
    degree and may be sentenced to imprisonment for not more than five
    years . . . .
    -13-
    Minn. Stat. Ann. § 609.582, subd. 3. “Enters a building without consent” includes
    either entering or remaining in a building without the owner’s consent. 
    Id. § 609.581,
    subd. 4.
    The Armed Career Criminal Act defines “violent felony” to include burglary
    that is “punishable by imprisonment for a term exceeding one year.” 18 U.S.C.
    § 924(e)(2)(B). To determine whether a prior burglary conviction is a violent felony,
    we typically apply the “categorical approach.” Mathis v. United States, 
    136 S. Ct. 2243
    , 2247-48 (2016). In that analysis, we compare the elements of the statute under
    which the defendant was convicted with the “generic” definition of burglary set forth
    in Taylor v. United States, 
    495 U.S. 575
    , 598-99 (1990). See Descamps v. United
    States, 
    133 S. Ct. 2276
    , 2283 (2013). Only when the statute has the same or narrower
    elements as the generic crime does the prior conviction count as a violent felony. 
    Id. But if
    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. 
    Id. at 2283-86.
    Section 609.582, subd. 3, is divisible, so we must consider whether each
    statutory alternative qualifies as a “violent felony.” The government argues that we
    have ruled already that convictions under either alternative in § 609.582, subd. 3,
    qualify as violent felonies. But the cases on which the government relies are
    inapposite. The decision in United States v. Sonczalla, 
    561 F.3d 842
    , 846 (8th Cir.
    2009), concerned an earlier version of the third-degree burglary statute, enacted in
    1986, that did not contain the second alternative in the current statute. See Minn.
    Stat. Ann. § 609.582, subd. 3 (1986). United States v. Constantine, 
    674 F.3d 985
    ,
    990 (8th Cir. 2012), did hold that § 609.582, subd. 3, “qualifies as a ‘violent felony’
    under 18 U.S.C. § 924(e)(2)(B)(ii).” But Constantine cited Sonczalla, which
    involved the 1986 statute and thus addressed only one of the two statutory
    alternatives. Constantine also relied on precedent suggesting that burglary
    -14-
    convictions qualified as violent felonies under the “residual clause” of
    § 924(e)(2)(B)(ii), 
    id., but the
    Supreme Court later declared the residual clause
    unconstitutional. Johnson v. United States, 
    135 S. Ct. 2551
    , 2557 (2015). Because
    Constantine did not specify that a conviction under both of the alternatives in the
    current version of the Minnesota third-degree burglary statute qualified as a generic
    burglary under Taylor, we do not consider it controlling on the question.
    The first alternative of § 609.582, subd. 3, forbids “enter[ing] a building
    without consent and with intent to steal or commit any felony or gross misdemeanor”
    while inside. Taylor defines “generic” burglary as “an unlawful or unprivileged entry
    into, or remaining in, a building or other structure, with intent to commit a 
    crime.” 495 U.S. at 598
    . Because the first alternative of the Minnesota statute contains all of
    the elements in the Taylor definition, convictions based on that alternative count as
    violent felonies.
    The second alternative of the Minnesota statute provides that “whoever enters
    a building without consent and steals or commits a felony or gross misdemeanor”
    while inside commits third-degree burglary. That portion of the statute, however,
    does not include the element of “intent to commit a crime” at the time of the unlawful
    entry or remaining. See State v. Benedict, No. A13-1324, 
    2014 WL 2921869
    , at *2
    (Minn. Ct. App. June 30, 2014). Whether the second alternative qualifies as a violent
    felony thus depends on when, under the definition of generic burglary, an offender
    must form the intent to commit a crime within the building.
    The government contends that the generic definition of burglary is broad
    enough to encompass the second alternative under § 609.582, subd. 3. Taylor said
    that generic burglary includes “remaining in” a building with intent to commit a
    
    crime. 495 U.S. at 598
    . The government argues that a person convicted under the
    second alternative for entering a building without consent and then later stealing or
    committing a felony or gross misdemeanor while in the building meets the “remaining
    -15-
    in” aspect of Taylor’s definition. The offender necessarily has “remained in” the
    building with intent to commit a crime, the argument goes, because he must have
    developed the requisite intent at some point while “remaining in” the building.
    We reject this reading of Taylor. Taylor provides that burglary occurs when
    an offender enters or remains in a building or structure “with intent to commit a
    crime.” 
    Id. (emphasis added).
    The most natural reading of Taylor and the sources on
    which it relied show that a generic burglary requires intent to commit a crime at the
    time of the unlawful or unprivileged entry or the initial “remaining in” without
    consent. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law
    § 8.13(b), (e), at 468, 473-74 & n.101 (1986) (noting that the “intent to commit a
    crime within need only exist at the time the defendant unlawfully remained within”);
    Model Penal Code § 221.1, cmt. (1), (3) (Am. Law Inst. 1980) (referencing the
    “purpose that accompanies the entry,” and “the purpose that must accompany the
    intrusion”).
    The act of “remaining in” a building, for purposes of generic burglary, is not
    a continuous undertaking. Rather, it is a discrete event that occurs at the moment
    when a perpetrator, who at one point was lawfully present, exceeds his license and
    overstays his welcome. See LaFave & Scott, supra, § 8.13(b), (e), at 467-68 & n.47,
    473-75 (distinguishing between burglary statutes that require intent to be
    contemporaneous with the unlawful entry or remaining and those providing “that
    actual commission of the offense within is an alternative basis for conviction”). If the
    defendant does not have the requisite intent at the moment he “remains,” then he has
    not committed the crime of generic burglary. The government’s reading of Taylor
    would render the “unlawful entry” element of generic burglary superfluous, because
    every unlawful entry with intent would become “remaining in” with intent as soon as
    the perpetrator enters.
    -16-
    Our understanding of Taylor, requiring the existence of “contemporaneous
    intent,” is consistent with the views of the Fifth and Ninth Circuits. See United States
    v. Herrera-Montes, 
    490 F.3d 390
    , 392 & n.1 (5th Cir. 2007); United States v. Bonat,
    
    106 F.3d 1472
    , 1475-76 (9th Cir. 1997). A divided panel of the Fourth Circuit
    reached a contrary conclusion in United States v. Bonilla, 
    687 F.3d 188
    , 192-94 (4th
    Cir. 2012). The Bonilla panel reasoned that even when a state burglary statute does
    not require contemporaneous intent, it corresponds “in substance” to Taylor’s
    definition of generic burglary. 
    Id. (quotation omitted).
    A dissenting judge disagreed,
    concluding that generic burglary as defined by Taylor includes a requirement of
    contemporaneous intent, and that a state statute without that element does not qualify
    as generic burglary. 
    Id. at 196-98
    (Traxler, C.J., dissenting). For the reasons
    discussed, we believe the Bonilla dissent, along with the Fifth and Ninth Circuits, has
    the better view. With respect, we also believe the Fourth Circuit’s concern that a
    requirement of contemporaneous intent is “too 
    rigid,” 687 F.3d at 194
    , is at odds with
    the exacting standard applied by the Supreme Court in its recent decisions in this
    area. See, e.g., 
    Mathis, 136 S. Ct. at 2251-54
    , 2257; 
    id. at 2270-71
    (Alito, J.,
    dissenting); 
    Descamps, 133 S. Ct. at 2283-86
    , 2293.
    Because a conviction under the second alternative of § 609.582, subd. 3, does
    not require that the defendant have formed the “intent to commit a crime” at the time
    of the nonconsensual entry or remaining in, it does not qualify as a violent felony.
    Section 609.582, subd. 3, thus includes at least one alternative that does not satisfy
    Taylor. The district court should have applied the modified categorical approach to
    ascertain which alternative formed the basis of Morris’s third-degree burglary
    convictions and then to decide whether the convictions were violent felonies. See
    
    Descamps, 133 S. Ct. at 2283-85
    . Accordingly, we vacate Morris’s sentence and
    remand for further proceedings.
    -17-
    C.
    1.
    McArthur raises three claims of error on appeal. All three involve his two
    convictions for aiding and abetting the use or carrying of a firearm during and in
    relation to, or the possession of a firearm in furtherance of, a crime of violence. See
    18 U.S.C. §§ 924(c), 2. He first argues that the district court violated his rights under
    the Double Jeopardy Clause by imposing consecutive sentences for those convictions,
    because the convictions arose from one predicate offense, conspiracy to participate
    in a pattern of racketeering activity. Although our circuit precedent rejects this claim,
    see, e.g., Hamberg v. United States, 
    675 F.3d 1170
    , 1172-73 (8th Cir. 2012); United
    States v. Lucas, 
    932 F.2d 1210
    , 1222-23 (8th Cir. 1991), the government nonetheless
    asks us to vacate one of McArthur’s convictions based on an internal Justice
    Department policy to refrain from pursuing multiple § 924(c) charges in this
    circumstance. The relevant policy provides that each § 924(c) charge in an
    indictment should be based on a separate predicate offense. See Brief for the United
    States in Opposition to Petition for Writ of Certiorari, Carter v. United States, 
    537 U.S. 1187
    (2002), (No. 02-655), 
    2002 WL 32133544
    , at *8. The United States
    Attorney evidently charged McArthur in violation of Department policy and now
    requests that we vacate one of the § 924(c) convictions so that the government may
    belatedly comply with the policy.
    The Supreme Court addressed a comparable situation in Rinaldi v. United
    States, 
    434 U.S. 22
    , 29 (1977) (per curiam), where the government prosecuted a
    defendant in violation of its Petite policy against multiple prosecutions by separate
    sovereigns for the same act. See Petite v. United States, 
    361 U.S. 529
    , 530-31 (1960)
    (per curiam). Although the conviction did not violate the Double Jeopardy Clause,
    see Abbate v. United States, 
    359 U.S. 187
    (1959), the Court held that the district court
    should have granted the government’s belated motion to dismiss the indictment. The
    -18-
    Court concluded that the “overriding purpose of the Petite policy is to protect the
    individual from any unfairness associated with needless multiple prosecutions,” and
    that the defendant “should receive the benefit of the policy whenever its application
    is urged by the Government.” 
    Rinaldi, 434 U.S. at 31
    . The policy here, although not
    premised on the “dual sovereignty principle inherent in our federal system,” does seek
    “to protect interests . . . embraced by the Double Jeopardy Clause.” 
    Id. at 29.
    The
    Justice Department has opted, as a matter of policy, to follow the view of other
    circuits that “the imposition of consecutive sentences under subsection 924(c) for
    using multiple weapons during a single crime of violence would impinge upon
    fundamental ‘double jeopardy’ principles.” United States v. PenÞa-Lora, 
    225 F.3d 17
    ,
    32 (1st Cir. 2000); see U.S. Dep’t of Justice, Office of Legal Education, Federal
    Firearms Manual § 4.25, at 192-93 (3d ed. 2001) (attached as Appendix B to the
    Brief for the United States in Opposition to Petition for Writ of Certiorari in Carter).
    We see no material distinction between this case and Rinaldi, and therefore grant the
    government’s request to vacate McArthur’s conviction on Count 11.
    McArthur next contends that the jury instructions as to Count 10, the remaining
    § 924(c) charge, did not comply with Rosemond v. United States, 
    134 S. Ct. 1240
    (2014). This charge concerned the shooting at the Raisch residence. A person who
    “aids, abets, counsels, commands, induces or procures” the commission of a federal
    offense “is punishable as a principal.” 18 U.S.C. § 2. To convict a defendant of
    aiding and abetting a § 924(c) offense, the government must prove: (1) that a
    predicate crime of violence or drug trafficking was committed; (2) that a gun was
    used in a prohibited manner during the predicate offense; (3) that the defendant
    facilitated the firearm use, the predicate crime, or both; and (4) that the defendant had
    advance knowledge that one of his confederates would use or carry a gun during and
    in relation to the commission of the predicate crime, or would possess a gun in
    furtherance of the predicate offense. 
    Rosemond, 134 S. Ct. at 1245
    , 1247, 1248-51.
    -19-
    Although the Supreme Court decided Rosemond after McArthur’s trial, we
    apply the case retroactively to cases on direct review. Johnson v. United States, 
    520 U.S. 461
    , 467 (1997). But because McArthur did not object in the district court to the
    instructions he now challenges, we review only for plain error. 
    Id. at 466.
    To obtain
    relief, McArthur must show that there was an error that was obvious, rather than
    subject to reasonable dispute, and that the error affected his substantial rights and
    seriously affected the fairness, integrity, or public reputation of judicial proceedings.
    
    Id. at 466-68;
    see Puckett v. United States, 
    556 U.S. 129
    , 135 (2009).
    McArthur complains that the district court’s instructions for the charges of
    aiding and abetting a violation of § 924(c) did not require the jury to find that he had
    advance knowledge that a confederate would use or carry a firearm during the Raisch
    shooting. The elements instruction for aiding and abetting Count 10 required the jury
    to find beyond a reasonable doubt that McArthur “must . . . have known that someone
    was going to knowingly use or carry a firearm during or in relation to, or possess a
    firearm in furtherance of, the crime of conspiracy to participate in a racketeering
    enterprise.” McArthur argues that the instruction permitted the jury to convict him
    based on a finding that he had advance knowledge that a coconspirator would use,
    carry, or possess a firearm at some point during the conspiracy in general, as opposed
    to advance knowledge that a coconspirator would use, carry, or possess a firearm
    during the attack on the Raisch home.
    The government does not address McArthur’s premise that what he refers to
    as “general” knowledge is insufficient to support a § 924(c) conviction under an
    aiding and abetting theory of liability. Rosemond says that the defendant must know
    in advance that a confederate will carry a gun during commission of the predicate
    
    crime. 134 S. Ct. at 1245
    , 1249-51. The predicate crime here was conspiracy to
    participate in racketeering activity, not a substantive offense of shooting at the Raisch
    home. See United States v. Hinds, 435 F. App’x 832, 835-36 (11th Cir. 2011) (per
    curiam) (upholding a conviction for aiding and abetting possession of firearms in
    -20-
    furtherance of a drug conspiracy where the defendant provided firearms to his
    coconspirators for their use in furtherance of the conspiracy); cf. Pinkerton v. United
    States, 
    328 U.S. 640
    , 645-48 (1946); United States v. Bailey, 
    235 F.3d 1069
    , 1074
    (8th Cir. 2000). But the government defends the conviction solely on the ground that
    the jury instructions adequately elicited a finding on whether McArthur had advance
    knowledge that a confederate would use a firearm in the Raisch shooting. Because
    we deem that avenue sufficient to sustain the judgment, we need not address whether
    McArthur’s premise is correct.
    Assuming, therefore, that Rosemond required McArthur to have advance
    knowledge that a firearm would be used during the Raisch shooting, the jury
    instructions about which McArthur complains were not plainly erroneous. The jury
    was instructed that to convict McArthur for aiding and abetting in the commission of
    Count 10, McArthur “must . . . have known that someone was going to knowingly use
    and carry a firearm during and in relation to, or possess a firearm in furtherance of,
    the crime of conspiracy to participate in a racketeering enterprise.” The jury knew,
    however, that Count 10 charged that “on or about August 24, 2010, Defendant
    McArthur . . . knowingly used and carried a firearm during and in relation to, and
    possessed a firearm in furtherance of, a crime of violence.” The instruction listing the
    elements required by § 924(c) likewise directed the jury that a necessary element of
    the charge was that “on or about August 24, 2010, the defendant, or another person
    aided and abetted by the defendant, did knowingly use or carry a firearm during and
    in relation to, or possess a firearm in furtherance of, that crime.” And the jury was
    told that it was considering whether McArthur “aided and abetted in the commission
    of Count 10.” Given that the references to the date of the Raisch shooting focused
    the jury on the specific firearm use on which Count 10 was premised, there is at least
    a reasonable dispute about whether the instructions, taken as a whole, fairly and
    adequately submitted to the jury the “advance knowledge” question. Any error is thus
    not plain.
    -21-
    We also conclude that the district court did not err in denying McArthur’s
    motion for judgment of acquittal on Count 10. There was evidence that McArthur
    wanted to “eliminate [Daniels] by any means,” and that he was part of the group that
    decided to find Daniels and “shoot him.” Members involved in those conversations
    then mistakenly shot into a home in which they believed Daniels was staying; they
    informed McArthur of the mishap. Days later, members attacked the Raisch
    residence with Daniels as the target. Based on this evidence, along with testimony
    concerning the Mob’s propensity for firearms and McArthur’s decision-making
    authority as Chief, a reasonable jury could have found him guilty on Count 10.
    2.
    Having concluded that one of McArthur’s convictions should be vacated on the
    government’s request, we must determine the appropriate remedy. The district court
    sentenced McArthur to a total of 516 months’ imprisonment, but 300 months were
    attributable to the second § 924(c) conviction that will be vacated. The government
    contends that under the “sentencing package” doctrine, we should vacate McArthur’s
    sentences on all of his convictions and remand for resentencing. McArthur responds
    that the court should vacate only the sentence for Count 11, and remand with
    instructions to leave the sentences on his remaining convictions unchanged. Under
    that approach, McArthur’s total sentence would be reduced from 516 months to 216
    months’ imprisonment.
    Under the sentencing package doctrine, we “may vacate the entire sentence on
    all counts so that, on remand, the trial court can reconfigure the sentencing plan to
    ensure that it remains adequate to satisfy the sentencing factors in 18 U.S.C.
    § 3553(a).” Greenlaw v. United States, 
    554 U.S. 237
    , 253 (2008); see United States
    v. Bruguier, 
    735 F.3d 754
    , 764 (8th Cir. 2013) (en banc). The doctrine often arises
    in cases involving “multicount indictments and a successful attack by a defendant on
    some but not all of the counts of conviction.” 
    Greenlaw, 554 U.S. at 253
    .
    -22-
    This is an appropriate case for application of the sentencing package doctrine.
    McArthur was charged in a multicount indictment and convicted of several crimes.
    He has successfully challenged one of those convictions on appeal. When the district
    court determined McArthur’s sentence on the remaining counts, the court acted on
    the assumption that he would receive a 300-month consecutive sentence for Count 11.
    With that sentence vacated, the district court should have an opportunity to decide
    whether a term of 216 months’ imprisonment is sufficient to comply with the
    purposes set forth in 18 U.S.C. § 3553(a)(2). See United States v. Cureton, 
    739 F.3d 1032
    , 1045 (7th Cir. 2014).
    McArthur claims that the sentencing package doctrine applies only when the
    vacatur of one conviction permits the district court at resentencing to apply a new
    enhancement under the advisory sentencing guidelines. See Gardiner v. United
    States, 
    114 F.3d 734
    , 736 (8th Cir. 1997). But Gardiner simply mentioned that
    possibility as one factor favoring resentencing, and our precedent should not be read
    as narrowly as McArthur suggests. In Bruguier, for example, this court vacated all
    of the defendant’s sentences and remanded for resentencing without purporting to
    satisfy the limitation that McArthur 
    proposes. 735 F.3d at 764
    . McArthur also
    argues that the district court may not alter his sentences on his remaining convictions
    without violating the Double Jeopardy Clause. A defendant, however, has no
    expectation of finality in his sentence until an appeal is concluded, and the Double
    Jeopardy Clause “does not bar resentencing on all counts to carry out the sentencing
    judge’s original intent.” United States v. Evans, 
    314 F.3d 329
    , 333 (8th Cir. 2002).
    *      *       *
    For the foregoing reasons, we affirm the judgment as to Cree. We affirm
    Morris’s convictions but vacate his sentence and remand for further proceedings. We
    -23-
    vacate McArthur’s conviction on Count 11, affirm his remaining convictions, vacate
    McArthur’s entire sentence, and remand for resentencing.
    ______________________________
    -24-
    

Document Info

Docket Number: 14-3335

Citation Numbers: 836 F.3d 931

Filed Date: 9/8/2016

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (30)

united-states-v-luis-manuel-pea-lora-united-states-of-america-v-jorge , 225 F.3d 17 ( 2000 )

united-states-v-jose-diaz-also-known-as-jolly-jesse-rodriguez-also-known , 176 F.3d 52 ( 1999 )

Edward John Petschl v. United States , 369 F.2d 769 ( 1966 )

Wayne Anthony Gardiner v. United States of America, Ernesto ... , 114 F.3d 734 ( 1997 )

United States v. Delgado , 401 F.3d 290 ( 2005 )

United States v. Juan Jose Herrera-Montes, Also Known as ... , 490 F.3d 390 ( 2007 )

United States v. Scott Phillip Flynn , 196 F.3d 927 ( 1999 )

United States v. Sergio Ramirez , 350 F.3d 780 ( 2003 )

United States v. Thomas James Hively, Also Known as T.J. ... , 437 F.3d 752 ( 2006 )

Hamberg v. United States , 675 F.3d 1170 ( 2012 )

United States v. Constantine , 674 F.3d 985 ( 2012 )

United States v. Sonczalla , 561 F.3d 842 ( 2009 )

united-states-v-kim-randolph-lucas-united-states-of-america-v-keith , 932 F.2d 1210 ( 1991 )

united-states-v-gerald-rey-bailey-united-states-of-america-v-anthony , 235 F.3d 1069 ( 2000 )

UNITED STATES of America, Plaintiff-Appellee, v. Richard ... , 106 F.3d 1472 ( 1997 )

Pinkerton v. United States , 66 S. Ct. 1180 ( 1946 )

Rosemond v. United States , 134 S. Ct. 1240 ( 2014 )

united-states-v-carlton-darden-united-states-of-america-v-carla-simone , 70 F.3d 1507 ( 1995 )

United States v. Turkette , 101 S. Ct. 2524 ( 1981 )

Abbate v. United States , 79 S. Ct. 666 ( 1959 )

View All Authorities »