Okera Kirk v. USA, No. 11-3337 (6th Cir. 2012)
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0810n.06 No. 11-3337 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT OKERA J. KIRK, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. ) ) ) ) ) ) ) ) ) FILED Jul 27, 2012 LEONARD GREEN, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO Before: SUTTON, GRIFFIN and WHITE, Circuit Judges. PER CURIAM. Okera Kirk pled guilty in November 2005 to being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). After determining that his prior felony convictions qualified him for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), the district court sentenced Kirk to 190 months in prison. R. 31 at 9. Kirk later moved to vacate his sentence under 28 U.S.C. § 2255, asserting ineffective assistance of both trial and appellate counsel based on their failure to challenge his being sentenced as an armed career offender. The district court denied Kirk s motion. R. 46. The government acknowledges that intervening case law makes clear that Kirk s aggravatedvehicular-assault conviction does not qualify as a violent felony because the relevant state statute punished conduct that was merely reckless. Gov t Br. at 21 22; see Begay v. United States, 553 U.S. 137, 144 45 (2008); United States v. McMurray, 653 F.3d 367, 375 (6th Cir. 2011). The No. 11-3337 Kirk v. United States government therefore concedes that Kirk has only two qualifying ACCA predicates and urges us to remand the case so the district court may impose a non-enhanced sentence. Gov t Br. at 22. We may vacate Kirk s sentence under 28 U.S.C. § 2255 based on this statutory error only if it resulted in a miscarriage of justice. Davis v. United States, 417 U.S. 333, 345 46 (1974). As a result of his erroneous classification as an armed career criminal, Kirk received a sentence of 190 months, well above the 120-month statutory maximum that would otherwise apply to his felon-inpossession conviction. 18 U.S.C. § 924(a)(2). This sentence one that the law cannot impose upon [Kirk] undoubtedly represents a miscarriage of justice, making relief under § 2255 appropriate. United States v. Shipp, 489 F.3d 1084, 1091 (10th Cir. 2009); see Narvaez v. United States, 674 F.3d 621, 628 29 (7th Cir. 2011). Because we resolve the case on statutory grounds, we do not reach Kirk s alternative argument that his attorney provided constitutionally ineffective assistance by failing to object to the ACCA enhancement at sentencing. For these reasons, we reverse the district court s judgment and remand for further proceedings. -2-
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