United States v. McArthur, No. 14-3335 (8th Cir. 2016)
Annotate this CaseDefendants Cree, Morris, and McArthur were convicted of criminal offenses stemming from their involvement with the Native Mob, a Minnesota prison and street gang. The court concluded that the evidence was sufficient to support Cree's conviction for conspiracy to participate in racketeering activity, conspiracy to distribute controlled substances, distribution of drugs, attempted murder or assault in aid of racketeering, and various firearms offenses; the evidence was sufficient to convict Morris of attempted murder in aid of racketeering and assault with a dangerous weapon in aid of racketeering; Morris waived any claim of error based on an alleged constructive amendment; 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; the court granted the government’s request to vacate McArthur’s conviction on Count 11; in light of Rosemond v. United States, the jury instructions about which McArthur complains were not plainly erroneous; and the district court did not err in denying McArthur’s motion for judgment of acquittal on Count 10. Under the sentencing package doctrine, the court vacated McArthur's sentence and remanded for further proceedings. The court also vacated Moriss's conviction. The court affirmed in all other respects.
Court Description: Colloton, Author, with Riley, Chief Judge, and Kelly, Circuit Judge] Criminal case - Criminal law and sentencing. Evidence was sufficient to support defendants' convictions for conspiracy to participate in racketeering activity, conspiracy to distribute controlled substances, distribution of drugs, attempted murder or assault in aid of racketeering and various firearms offenses; the jury instructions on defendant Morris's charge of attempted murder and assault in aid of racketeering did not constructively amend the indictment; the district court erred in determining Morris's prior third-degree burglary convictions constituted violent felonies under the Armed Career Criminal Act, and his sentence is vacated and the matter remanded for further proceedings; the government's motion to vacate one of defendant McArthur's two 18 U.S.C. Sec. 924(c) charges is granted as the Justice Department has opted, as a matter of policy, to follow the view of other circuits that the imposition of consecutive sentence under subsection 924(c) for using multiple weapons during a single crime of violence would impinge on fundamental double jeopardy principles; instructions on the remaining Section 924(c) against McArthur were not erroneous under Rosemond v. United States, 134 S. Ct. 1240 (2014); applying the "sentencing packaging doctrine," McArthur's entire sentence is vacated and the matter is remanded for further proceedings; on remand the district court may alter the sentences on the remaining counts without violating the Double Jeopardy Clause as a defendant has no expectation of finality in his sentence until as appeal is concluded.
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