United States v. Brown, No. 13-1590 (8th Cir. 2015)

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Brown pled guilty as a felon possessing a firearm, 18 U.S.C. 922(g). The district court sentenced him under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), to 180 months’ imprisonment, finding that Brown had three predicate convictions, including possession of a short-barreled shotgun. In 2013 the Eighth Circuit affirmed, agreeing that the shotgun conviction was a violent felony under the ACCA’s “residual clause,” which provides that crime is a violent felony if it “otherwise involves conduct that presents a serious potential risk of physical injury to another. The Supreme Court vacated and remanded for reconsideration in light of its 2015 decision, Johnson v. United States, which struck down the residual clause as unconstitutionally vague. The Eighth Circuit vacated and remanded for resentencing.

Court Description: Per Curiam - Before Bye, Smith and Benton, Circuit Judges] Criminal case - Sentencing. On remand from the Supreme Court for reconsideration in light of Johnson v. United States, 135 S. Ct. 2551 (2015). For the court's earlier opinion in the case, see United States v. Brown, 734 F.3d 824 (8th Cir. 2013). Under Johnson, defendant's conviction for possession of a short-barreled shotgun is not a violent felony for purposes of sentencing under the Armed Career Criminal Act; without this conviction, defendant only had two qualifying convictions, and it was error to sentence him under the Act; remanded for resentencing.

This opinion or order relates to an opinion or order originally issued on October 30, 2013.

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 13-1590 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Wendell Terrell Brown lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the District of Minnesota - St. Paul ____________ Submitted: August 4, 2015 Filed: August 7, 2015 [Published] ____________ Before BYE, SMITH, and BENTON, Circuit Judges. ____________ PER CURIAM. This court previously affirmed Wendell Terrell Brown’s sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See United States v. Brown, 734 F.3d 824 (8th Cir. 2013). The Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Having jurisdiction under 28 U.S.C. § 1291, this court vacates Brown’s sentence and remands. Brown pled guilty to possessing a firearm in violation of 18 U.S.C. § 922(g). The district court sentenced him as an armed career criminal to 180 months’ imprisonment. See § 924(e)(1) (mandatory minimum of 180 months if a felon in possession of a firearm has three prior convictions for violent felonies or serious drug offenses). At sentencing, it found Brown had three predicate convictions, including possession of a short-barreled shotgun. This court affirmed, agreeing that the shotgun conviction was a violent felony under the ACCA’s “residual clause.” See § 924(e)(2)(B)(ii) (crime is a violent felony if it “otherwise involves conduct that presents a serious potential risk of physical injury to another”). In Johnson, the Supreme Court struck down the residual clause as unconstitutionally vague. See Johnson, 135 S. Ct. at 2556-57 (noting vagueness in criminal statutes is prohibited by due process). In light of Johnson, Brown’s shotgun conviction is not a violent felony under the ACCA. Thus, the district court erred by sentencing him as an armed career criminal based on only two qualifying convictions. The judgment is vacated and the case remanded for resentencing consistent with this opinion. ______________________________ -2-

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