United States v. Richard Lee Counts, No. 06-2919 (8th Cir. 2008)
Annotate this CaseCourt Description: Criminal case - Sentencing. On remand from the Supreme Court for further consideration under Begay. The district court erred in finding that defendant's conviction for tampering by operation is a violent felony; as a result, defendant does not qualify for sentencing as an armed career criminal and his sentence must be vacated. Case remanded for resentencing.
This opinion or order relates to an opinion or order originally issued on August 17, 2007.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 06-2919 ___________ United States of America, Appellee, v. Richard Lee Counts, Appellant. * * * * Appeal from the United States * District Court for the * Western District of Missouri. * * [UNPUBLISHED] * ___________ Submitted: May 28, 2008 Filed: December 30, 2008 (Corrected 1/21/09) ___________ Before COLLOTON, BEAM, and BENTON, Circuit Judges. ___________ PER CURIAM. This case is before the court on remand from the Supreme Court for further consideration in light of Begay v. United States, 128 S. Ct. 1581 (2008). Counts was sentenced to a statutory minimum term of 180 months imprisonment for unlawful possession of a firearm as a felon. The sentence was based on the district court s determination that Counts qualified as an armed career criminal within the meaning of 18 U.S.C. § 924(e), because he had sustained three prior convictions for a violent felony or a serious drug offense. See 18 U.S.C. § 924(e)(2). One of those convictions involved the offense of tampering with a vehicle by operation in Missouri. See Mo. Rev. Stat. § 569.080. In a prior opinion, we affirmed the judgment of the district court, including its determination that Counts s prior conviction for tampering by operation was a violent felony. See United States v. Counts, 498 F.3d 802 (8th Cir. 2007) (per curiam), vacated, 128 S. Ct. 2049 (2008). After this case was remanded, another panel of this court, relying on Begay, overruled circuit precedent and held that auto tampering by operation in Missouri is not a crime of violence under USSG § 4B1.2. United States v. Williams, 537 F.3d 969, 974-75 (8th Cir.), reh g denied, 546 F.3d 961 (8th Cir. 2008). The Williams opinion stated that the inquiry applicable to § 4B1.2 also governs whether an offense is a violent felony under § 924(e), and thus effectively abrogated circuit precedent holding that tampering by operation is a violent felony. See United States v. Johnson, 417 F.3d 990, 999 (8th Cir. 2005). In light of Williams, Counts s prior offense of tampering by operation is not a violent felony, and Counts does not qualify as an armed career criminal based on his prior conviction for this offense. Accordingly, the district court s judgment is vacated, and the case is remanded for resentencing. ______________________________ -2-
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