USA v. Damon Flamont Smith, No. 06-3942 (8th Cir. 2009)
Annotate this CaseCourt Description: Criminal Case - sentencing. On remand from Supreme Court to reconsider sentence in light of Begay v. United States, Smith's prior convictions for tampering in the first degree cannot serve as basis for enhanced sentence or an armed-career criminal classification and case is remanded for resentencing.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 06-3942 ___________ United States of America, * * Plaintiff Appellee, * * On Remand from the v. * United States Supreme Court. * Damon Flamont Smith, * [UNPUBLISHED] * Defendant Appellant. * ___________ Submitted: May 29, 2008 Filed: July 15, 2009 ___________ Before BYE, RILEY, and MELLOY, Circuit Judges. ___________ PER CURIAM. This case is before us on remand from the Supreme Court of the United States, which vacated the judgment previously entered and directed reconsideration of the case in light of Begay v. United States, 128 S. Ct. 1581 (2008). Smith v. United States, 128 S. Ct. 2049 (2008). Damon Flamont Smith pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Based on Smith s multiple prior felony convictions for tampering in the first degree under Missouri state law, see Mo. Rev. Stat. § 569.080.1(2), the district court found Smith had been convicted three times or more of a violent felony as defined in 18 U.S.C. § 924(e), thus also triggering classification as an armed career criminal and a sentence enhancement under U.S. Sentencing Guidelines ( USSG ) § 4B1.4. All three of the convictions upon which the district court relied in determining that Smith had the predicate violent felonies necessary to trigger an enhanced sentence were tampering in the first degree by operat[ing] an automobile . . . without the consent of the owner. Mo. Rev. Stat. § 569.080.1(2). While this court had previously held that tampering convictions under Missouri law constituted violent felonies for the purposes of 18 U.S.C. § 924(e), see United States v. Johnson, 417 F.3d 990, 997 (8th Cir. 2005), following the Supreme Court s decision in Begay, we revisited this precedent and determined that automobile tampering under Missouri law is not a crime of violence and cannot be used as the basis for a career-offender enhancement. See United States v. Williams, 537 F.3d 969, 975 (8th Cir. 2008); see also id. at 971 (noting no distinction between the Guidelines definition of crime of violence and violent felony under 18 U.S.C. § 924(e)(2)(B), which was the interpretative focus of Begay, for the purposes of determining the applicability of a career-criminal enhancement). Thus, we conclude that Smith s convictions cannot serve as the basis of a sentence under 18 U.S.C. § 924(e) or an armed-career criminal classification under USSG § 4B1.4. Accordingly, we vacate our prior opinion and remand to the district court for resentencing. ______________________________ -2-
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