United States v. Jason Nebinger ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1504
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON J. NEBINGER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 16 CR 40024 — James E. Shadid, Judge.
____________________
ARGUED MARCH 31, 2020 — DECIDED FEBRUARY 11, 2021
____________________
Before KANNE, WOOD, and HAMILTON, Circuit Judges.
WOOD, Circuit Judge. After Jason Nebinger pleaded guilty
to the charge of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), the Probation Office
determined that he qualified as an armed career criminal,
based on his prior convictions for Illinois residential burglary,
drug possession with intent to deliver, and aggravated
battery. See the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(1). This had dire consequences for Nebinger: it
2 No. 19-1504
changed his sentencing exposure from a maximum sentence of
10 years to a minimum sentence of 15 years. Nebinger objected
to the use of the residential-burglary conviction to support the
enhancement, but he said nothing about the other two prior
convictions. The district court agreed with Nebinger that his
residential-burglary conviction was an improper ACCA
predicate. The court imposed a sentence of 10 years’
imprisonment, along with three years of supervised release.
The government appealed, and we vacated and remanded
in light of our decision in Smith v. United States, 877 F.3d 720(7th Cir. 2017), in which we held that the Illinois residential-
burglary statute corresponds to generic burglary for ACCA
purposes. United States v. Nebinger, No. 17-3411 (7th Cir. Feb.
27, 2018). That decision meant that Nebinger did qualify as an
armed career criminal. At resentencing, the district court in-
creased his prison sentence to 15 years (180 months), the min-
imum under the ACCA, see § 924(e)(1).
This time Nebinger has appealed. First, entirely apart from
his ACCA point, he contends that his guilty plea should be
vacated based on the Supreme Court’s decision in Rehaif v.
United States, 139 S. Ct. 2191 (2019), which held that the gov-
ernment must prove that the defendant knew that he fell
within one of the categories of people who are not entitled to
possess guns. Second, he argues his residential-burglary and
drug-offense convictions under Illinois law cannot be used as
ACCA predicates.
We are satisfied that Rehaif does not undermine the valid-
ity of Nebinger’s guilty plea, and so we affirm his conviction.
His sentence is another matter. While this litigation has been
pending, the Illinois Supreme Court has authoritatively ruled
on the scope of the state offense, and in so doing, has clarified
No. 19-1504 3
that it cannot be used for ACCA purposes. We therefore re-
mand for resentencing.
I
In Rehaif, the Supreme Court held that in a prosecution for
possession of a firearm by a restricted person, the government
must prove that the defendant knew both that he possessed
the firearm and that he was in one of the categories of re-
stricted persons under 18 U.S.C. § 922(g). 139 S. Ct. at 2194.
One of these categories covers a person who has “been con-
victed in any court of, a crime punishable by imprisonment
for a term exceeding one year.” 18 U.S.C. § 922(g)(1). In United
States v. Maez, 960 F.3d 949 (7th Cir. 2020), we clarified that
the knowledge element requires only that the defendant
knew, at the time he possessed the firearm, that he was a felon
(as pertinent here); he did not also need to know that his sta-
tus prohibited him from possessing a firearm. Id. at 955.
Nebinger pleaded guilty in 2016 to violating section
922(g)(1). This pre-dated Rehaif, and so neither the indictment
nor the government’s proffered factual basis for the convic-
tion said anything about Nebinger’s knowledge of his status
as a felon. Nebinger now seeks to vacate his guilty plea as un-
knowing because he was not made aware of, nor given the
opportunity to contest, that element. He did not try to with-
draw his guilty plea in the district court, and so our review is
only for plain error. United States v. Williams, 946 F.3d 968, 971
(7th Cir. 2020).
On plain error review, we consider whether: (1) an error
occurred; (2) the error was plain, i.e., clear and obvious; (3) the
error affected the defendant’s substantial rights, i.e., there is a
“reasonable probability that, but for the error, the outcome of
4 No. 19-1504
the proceeding would have been different”; and (4) the error
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Molina-Martinez v. United States, 136
S. Ct. 1338, 1343 (2016) (internal quotation marks omitted).
Our recent decisions in Williams and United States v.
Dowthard, 948 F.3d 814 (7th Cir. 2020), settle this matter. They
show that, while Nebinger can clear the first two hurdles, he
stumbles on the third. With the benefit of Rehaif, we know that
“the district court’s failure to inquire into [a defendant’s]
knowledge of his status or to confirm a factual basis for that
element of the offense” was both an error and an obvious one.
Williams, 946 F.3d at 971; see also Dowthard, 948 F.3d at 818.
But where is the prejudice? In Williams, we said that a defend-
ant seeking to withdraw a guilty plea because of Rehaif bears
the burden of persuading the court that there is “a reasonable
probability that he would not have pleaded guilty if he knew
of Rehaif.” 946 F.3d at 973. Nebinger cannot meet that burden.
He had six prior felony convictions for an array of crimes:
simple burglary, theft, residential burglary, drug possession
with intent to deliver, aggravated fleeing and eluding the po-
lice, and aggravated battery of a police officer. The residential
burglary, drug trafficking, aggravated fleeing and eluding,
and aggravated battery convictions each came with prison
sentences of four or five years, and Nebinger served signifi-
cant time on each one of them. He admitted these prior con-
victions at his plea colloquy. He could not have stood before
the judge and said, with a straight face, that he was unaware
of his status as a person with a prior felony conviction.
As we did in Williams and Dowthard, we conclude here that
Nebinger was not prejudiced by the Rehaif error. There is no
reasonable probability that he would have gone to trial if he
No. 19-1504 5
had known that the government would need to prove his
knowledge of his status. The district court thus did not plainly
err by accepting his guilty plea, and his conviction stands.1
II
Next, we turn to the validity of Nebinger’s sentence.
Nebinger argues that the district court improperly relied on
two of his prior convictions as ACCA predicates, when it
abandoned the regular maximum of ten years and used the
ACCA minimum of 15 years.
The ACCA is triggered in a prosecution under section
922(g) if the defendant has three previous convictions for ei-
ther a violent felony or a serious drug offense, he committed
those offenses on separate occasions, and each violent felony
offense carries a potential sentence of imprisonment exceed-
ing one year. If those criteria are satisfied, the defendant is
subject to a mandatory minimum sentence of fifteen years in
prison. 18 U.S.C. § 924(e). Burglary is one of the enumerated
violent felonies. Id. § 924(e)(2)(B)(ii). The statute also defines
1 We recognize that the Fourth Circuit has taken the position that Re-
haif problems qualify as structural error, and thus that they automatically
amount to plain error and entitle the defendant to relief. See United States
v. Gary, 954 F.3d 194, 205–07 (4th Cir. 2020), cert. granted, No. 20-444, 2021
WL 77245 (mem.), (U.S. Jan. 8, 2021). The Court has also agreed to hear
Greer v. United States, No. 19-8709, 2021 WL 77241 (mem.), (U.S. Jan. 8,
2021). Greer was a decision of the Eleventh Circuit, 798 F. App’x 483 (11th
Cir. 2020), which rejected the defendant’s contention that a Rehaif error
was plain error that affected his substantial rights. In light of the grant of
certiorari in Gary and Greer, we have considered whether to hold the pre-
sent case pending the Supreme Court’s decision in those cases. We believe,
however, that the best approach for Nebinger is to send this case along its
way and allow him to seek relief in the Supreme Court, should the Justices
disagree with the approach we have taken.
6 No. 19-1504
serious drug offenses, id. § 924(e)(2)(A), but that part plays
only a minor role in Nebinger’s case, and so the details do not
matter.
A
Nebinger contends that his 2000 conviction for Illinois res-
idential burglary cannot be used as an ACCA predicate be-
cause the state crime is broader than the corresponding fed-
eral crime and thus as a categorical matter does not qualify.
See Taylor v. United States, 495 U.S. 575 (1990). He reasons as
follows: first, the state crime does not require that the place
that is burglarized be a “building” or “structure” as those
terms are used by the Supreme Court; and second, the state
crime does not make breaking and entering, or its equivalent,
an element of the offense. For a time, we rejected this position,
see Smith, 877 F.3d at 724–25, and Dawkins v. United States, 809
F.3d 953 (7th Cir. 2016), but upon further thought, we decided
to ask the Illinois Supreme Court what falls within the scope
of the state statute. See United States v. Glispie, 943 F.3d 358(7th Cir. 2019).
The government contends that it is too late for Nebinger
to take advantage of anything the state court said. It argues
that he is precluded by the law-of-the-case doctrine and the
mandate rule from challenging the applicability of Dawkins to
his case, because he did not raise this precise challenge in the
first appeal. The government says that we may consider only
the district court’s application of Smith and United States v.
Stitt, 139 S. Ct. 399 (2018), in which the Court addressed the
type of structure that the burglary must target. But the
government is forgetting a key point: it was the appellant in
the first appeal, which occurred because the district court
initially had agreed with Nebinger. Moreover, Nebinger did
No. 19-1504 7
not neglect any argument in the district court. In his initial
sentencing memorandum, he challenged the use of his Illinois
residential-burglary conviction as an ACCA predicate on both
grounds raised here. The validity of the first argument was an
open question at the time, and the second argument directly
confronted Dawkins. The district court decided in Nebinger’s
favor that Illinois burglary is broader than generic burglary
with respect to the nature of the site burglarized, and thus it
had no occasion to reach the Dawkins breaking-and-entering
question.
The government then appealed and requested a summary
remand in light of Smith, which had recently been issued.
Given the government’s focus on Smith, there was no reason
for Nebinger to raise the Dawkins issue on his own in his op-
position to the government’s motion in this court. He did,
however, reiterate the Dawkins argument in his resentencing
memorandum and at the resentencing hearing, to preserve
the issue for appeal. The district court, considering itself
bound by Smith and Dawkins, resentenced Nebinger to the
ACCA-enhanced statutory minimum of 15 years.
Nothing in this history supports a finding that Nebinger
waived his arguments under Dawkins and related cases. We
therefore proceed to the merits.
1. Categorical Approach
Under the categorical approach of Taylor, supra, clarified in
Descamps v. United States, 570 U.S. 254 (2013) and Mathis v.
United States, 136 S. Ct. 2243 (2016), in order to qualify as a
prior violent felony for purposes of the ACCA enhancement,
the state crime must be defined in the same way or more nar-
rowly than the corresponding federal crime. We focus on the
8 No. 19-1504
elements of the crime, which the prosecution must prove at
trial, rather than the means. Mathis, 136 S. Ct. at 2248–49.
Nebinger’s 2000 Illinois conviction for residential burglary
rested on 720 ILCS 5/19-3. At the time, the statute provided:
“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). A “dwelling” was defined as follows:
(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 residence. (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 occu-
pants actually reside or in their absence intend within
a reasonable period of time to reside.
720 ILCS 5/2-6.
“Burglary” is an enumerated qualifying violent felony un-
der the ACCA for sentencing-enhancement purposes, 18
U.S.C. § 924(e)(2)(B)(ii). In order to decide whether a state of-
fense falls within the terms of the federal statute, the court
must determine whether that state offense corresponds to the
generic definition of burglary that is “used in the criminal
codes of most States.” Taylor, 495 U.S. at 598. The Court
acknowledged that “the exact formulations vary,” but that
“the generic, contemporary meaning of burglary contains at
No. 19-1504 9
least the following elements: an unlawful or unprivileged en-
try into, or remaining in, a building or other structure, with
intent to commit a crime.” Id.
2. Dwelling Requirement
In Smith, we held that Illinois’s definition of a “dwelling”
for purposes of residential burglary corresponds with the Su-
preme Court’s formulation of “a building or occupied struc-
ture.” 877 F.3d at 724. Later, the Supreme Court decided Stitt,
in which it reiterated the standard for generic burglary from
Taylor and said that “burglary of a structure or vehicle that has
been adapted or is customarily used for overnight accommo-
dation” qualifies as generic burglary for ACCA purposes. 139
S. Ct. at 403–04.
Nebinger argues that Smith runs afoul of Stitt and should
be overruled. He says that “the Illinois residential burglary
statute extends to places where one actually resides or intends
to reside, and not just places adapted for overnight accommo-
dation,” and thus “is overbroad and inclusive of places and
enclosures beyond those covered in generic burglary” under
the Stitt standard. We do not read Illinois’s law that way.
The applicable definition of a “dwelling,” 720 ILCS 5/2-
6(b), does not, as Nebinger urges, include anywhere “owners
or occupants actually reside or in their absence intend within
a reasonable period of time to reside,” regardless of the nature
of the place. Instead, it includes only a “house, apartment,
mobile home, trailer, or other living quarters[.]” In context,
the term “other living quarters” is not as open-ended as
Nebinger portrays it. Rather, consistently with Stitt, it in-
cludes a “structure or vehicle that has been adapted or is cus-
tomarily used for overnight accommodation.” This stands in
10 No. 19-1504
contrast with the definition of “dwelling” for all purposes be-
sides residential burglary, which is broader: “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 residence.” 720 ILCS 5/2-6(a). Given the distinct stat-
utory definitions of “dwelling,” it is unreasonable to interpret
the term for residential burglary purposes as expansively as
Nebinger suggests.
Ultimately, Nebinger provides no compelling reason to
overrule Smith. His challenge to the use of his residential bur-
glary conviction as an ACCA predicate based on the defini-
tion of the term “building” therefore fails.
3. Breaking-and-Entering Requirement
Nebinger’s challenge to Dawkins is a separate matter.
Dawkins held that the Illinois statute’s requirement of an
unlawful entry is the “practical equivalent” of the “breaking
and entering” requirement of the generic burglary offense for
ACCA purposes. 720 ILCS 5/19-3(a); 809 F.3d at 956 (7th Cir.
2016). But in Dawkins, we failed to consider the question
“whether the limited-authority doctrine applies to the Illinois
residential burglary statute.” Glispie, 943 F.3d at 359. Under
that doctrine, authority to enter a building open to the public
extends only to the purpose for which the building is open; if
someone enters with the intent of committing burglary, the
entry will be considered unlawful. Id. at 365.
Recognizing the importance of the limited-authority issue,
we certified to the Illinois Supreme Court the question
whether the limited-authority doctrine applies to residential
burglary as well as business burglary. United States v. Glispie,
No. 19-1504 11
943 F.3d 358, 372 (7th Cir. 2019). The state supreme court an-
swered it in the affirmative. United States v. Glispie, No.
125483, 2020 WL 5668984 *1 (Ill. Sept. 24, 2020). With that
guidance, we held “that a conviction for residential burglary
by entry under the Illinois statute does not qualify as generic
burglary as the Supreme Court of the United States has de-
fined that term[] [and] … cannot be used to enhance [a] sen-
tence under the ACCA.” United States v. Glispie, No. 19-1224,
2020 WL 6055356 at *1 (7th Cir. Oct. 14, 2020). This is so be-
cause Illinois does not always require an unlawful or unau-
thorized entry.
Nebinger’s appeal raises the same question as Glispie’s
did—whether his Illinois residential-burglary conviction can
serve as an ACCA predicate. Our answer, consistently with
the state supreme court’s decision, is that it cannot. Because
of the limited-authority doctrine, the state statute reaches
more conduct than the federal definition of generic burglary
encompasses, and under Taylor’s categorical approach, that is
the end of the matter.
B
Nebinger also challenges the use of his prior Illinois drug
conviction as an ACCA predicate on the basis that it is
broader than the corresponding federal law. He argues that
the Illinois statute criminalizes both a broader category of
controlled substance analogues and a broader category of co-
caine isomers.
Nebinger did not object to the use of his prior state drug
conviction as an ACCA predicate in the district court, even
while he challenged the use of his prior residential burglary
conviction. Nor did he raise this claim in the first appeal as an
12 No. 19-1504
alternative basis for affirming the district court’s determina-
tion that the ACCA enhancement does not apply. The govern-
ment therefore argues that he waived this point. His earlier
remand was exclusively for reconsideration of the residential-
burglary issue. See United States v. Whitlow, 740 F.3d 433, 438
(7th Cir. 2014) (“[A]n issue that could have been raised on ap-
peal but was not is waived and, therefore, not remanded.”);
United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996) (“A
party cannot use the accident of a remand to raise in a second
appeal an issue that he could just as well have raised in the
first appeal because the remand did not affect it.”). Nebinger
tries to avoid waiver by pointing to intervening authorities,
including United States v. Elder, 900 F.3d 491 (7th Cir. 2018);
United States v. De La Torre, 940 F.3d 938 (7th Cir. 2019); and
Lorenzo v. Whitaker, 752 F. App’x 482 (9th Cir. 2019).
But those cases did not make any new argument available
to Nebinger. To the contrary, these points are well-trodden.
In Elder, we held that the categorical approach from Taylor,
Descamps, and Mathis applies to our analysis of ACCA-
predicate drug offenses under 21 U.S.C. §§ 841 and 802(44).
Nebinger could have made the same argument Elder did—
that his state drug conviction did not qualify as an ACCA
predicate under the categorical approach—in the district
court or in the first appeal in 2017. Nothing in either Supreme
Court or Seventh Circuit precedent foreclosed it or even made
it a long shot.
Nebinger also relies on United States v. Ruth, 966 F.3d 642(7th Cir. 2020) to support his challenge. In Ruth, we found that
“the Illinois [cocaine] statute is categorically broader than the
federal definition.” 966 F.3d at 647. Ruth made the same argu-
ment that Elder made and that Nebinger could have made.
No. 19-1504 13
See id. at 644 (“Ruth now appeals and claims that the district
court erred in sentencing him because, using the categorical
approach, the overbreadth of the Illinois statute disqualifies
his prior conviction as a predicate felony drug offense.”).
At a minimum, Nebinger has forfeited this argument; it
may even be that he waived it. He has not offered any com-
pelling reason for us to overlook that forfeiture. We thus
choose not to reach this point.
III
We AFFIRM the judgment of conviction, and we VACATE
Nebinger’s sentence and REMAND to the district court for re-
sentencing.