United States v. McMillan, No. 16-2436 (8th Cir. 2017)
Annotate this CaseThe Eighth Circuit vacated defendant's 84 month sentence after he pleaded guilty to being a felon in possession of a firearm. The court held that defendant's prior conviction for third degree riot does not qualify as a crime of violence under the force clause of USSG 4B1.2(a), because the statute encompasses crimes against property. The court remanded for the district court to consider the government's alternate argument that third degree riot may qualify as a crime of violence under the residual clause.
Court Description: Murphy, Author, with Gruender and Kelly, Circuit Judges] Criminal case - Sentencing. The district court erred in finding defendant's conviction for third degree riot for the benefit of a gang in violation of Minn. Stat. Sec. 609.71, Subd. 3 (2009) was a crime of violence for sentencing purposes because the offense does not automatically qualify as a crime of violence under the force clause of Guidelines Sec. 4B1.2(a)(1) as the statute encompasses crimes against property; the offense may, however, qualify under the 2015 version of the residual clause of Guidelines Sec. 4B1.2(a) which was in effect at the time of sentencing; the matter is remanded, therefore, to permit the district court to determine whether the conviction qualified under the residual clause and, if so, whether the district court should consider the proposed amendment to the section which was pending at the time. Judge Gruender, dissenting.
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