United States v. Boman, No. 14-3312 (8th Cir. 2017)
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The Supreme Court granted a petition for writ of certiorari, vacated the district court's judgment, and remanded for further consideration in light of Mathis v. United States, 136 S. Ct. 2243 (2016).
The Eighth Circuit applied the categorical approach and held that petitioner's prior conviction for use of a firearm during the commission of a violent crime under 18 U.S.C. 924(c)(3) is not a predicate offense under the Armed Career Criminal Act. The court held that section 924(c)(3) is not divisible where a judge decides whether an underlying offense constitutes a crime of violence, and the definition of crime of violence as it is used in section 924(c)(1) is contained in a separate statutory section, section 924(c)(3). Furthermore, petitioner's substantial rights were affected. The court also held that the district court did not clearly err in applying a four-level sentencing enhancement under USSG 2K2.1(b)(6)(B). Accordingly, the court reversed and remanded.
Court Description: Melloy, Author, with Chief Judge Smith and Murphy, Circuit Judges] Criminal Case - sentence. On remand from the Supreme Court for further consideration in light of Mathis v. United States, and applying the categorical approach, we conclude Boman's prior conviction for use of a firearm during the commission of a violent crime under 18 U.S.C. sec. 924(c)(3) is not a predicate offense under the Armed Career Criminal Act. The statute is not a divisible statute, as a judge decides whether an underlying offense constitutes a crime of violence and the term crime of violence is intended to be an element of the crime not an alternative means. Applying plain error review, Boman's sentence of 262 months' imprisonment under the ACCA, more than ten years longer than he would have received, seriously affects the fairness and integrity of the judicial proceedings and is reversed. Application of the four-level sentence enhancement under USSG sec. 2K2.1(b)(6)(B) was not clear error, as the finding that Boman discharged a firearm was supported by a preponderance of the evidence and there was not substantial evidence of self- defense; thus the district court did not clearly err in finding Boman committed the Iowa Felony offense of Intimidation with a Dangerous Weapon. [ October 19, 2017
This opinion or order relates to an opinion or order originally issued on January 7, 2016.
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