Levering v. United States, No. 16-3454 (8th Cir. 2018)
Annotate this CaseThe Eighth Circuit affirmed petitioner's new sentence after the district court vacated his original sentence under 28 U.S.C. 2255 and again applied an enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e). The court held that petitioner's two prior Iowa assault convictions were committed on occasions different from one another and qualified as separate predicate offenses under section 924(e). Therefore, the district court properly enhanced petitioner's sentence under the ACCA and the corresponding sentencing guideline. The court also held that defendant's sentence was substantively reasonable where the district court had wide latitude in deciding how to weigh the relevant 18 U.S.C. 3553(a) factors and the district court did not abuse its discretion in sentencing defendant.
Court Description: Colloton, Author, with Loken, Circuit Judges] [Filed Pursuant to Eighth Circuit Rule 47E] Criminal Case - Armed Career Criminal Act. Upon resentencing following the decision in Johnson v. United States and determination that one of Levering?s prior convictions was no longer a violent felony, the district court determined Levering was still an armed career criminal based on two 1994 Iowa convictions for assault while participating in a felony. Levering argued the two Iowa convictions occurred on a single occasion and should be counted as one predicate offense. Because Levering committed two assaults on the same date but at different times in different counties against different victims, and thus were ?committed on occasions different from one another,? the district court did not err in counting the two convictions as two separate qualifying convictions. The sentence, in which district court varied downward from the advisory guideline range by 22 months, was substantively reasonable and there was no abuse of discretion.
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