Court Description: Per Curiam. Before Loken, Gruender, and Grasz, Circuit Judges] Criminal Case - sentencing. On remand from Supreme Court to reconsider the question whether Webster?s Wisconsin burglary convictions qualified under the Armed Career Criminal Act in light of United States v. Franklin, Wisconsin?s burglary statute, Wis. Stat. sec. 943.10(1m), is broader than generic burglary and case is remanded to district court for resentencing without the ACCA enhancement. Judge Loken concurs.
This opinion or order relates to an opinion or order originally issued on July 11, 2018.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-2758 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Vernon Montrell Webster, also known as Webster Connell Spunky, Jr., also known as Tracy Connell Webster, Jr. lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Waterloo ____________ Submitted: November 8, 2019 Filed: November 21, 2019 [Unpublished] ____________ Before LOKEN, GRUENDER, and GRASZ, Circuit Judges. ____________ PER CURIAM. Vernon Webster pleaded guilty to being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), and he received an enhanced sentence as an armed career criminal, see id. § 924(e). We affirmed his sentence, despite his argument that his three prior Wisconsin convictions for burglary under Wis. Stat. § 943.10(1m) did not qualify as violent felonies under the Armed Career Criminal Act (“ACCA”), on the authority of United States v. Lamb, 847 F.3d 928 (8th Cir. 2017), cert. denied, 138 S. Ct. 1438 (2018), in which we held that an identical burglary conviction qualified as a violent felony under the ACCA. See United States v. Webster, 730 F. App’x 396 (8th Cir. 2018) (per curiam). Webster then petitioned the Supreme Court for a writ of certiorari, which granted it, vacated our judgment, and remanded the case to us with instructions to reconsider the matter in light of United States v. Franklin, 2019 WI 64, 387 Wis. 2d 259, 928 N.W.2d 545. See Webster v. United States, 589 U.S. ---, 2019 WL 4921146 (Oct. 7, 2019). The parties agree, as we have already recognized, that Lamb is no longer good law following Franklin. See United States v. Holston, 773 F. App’x 336, 337 (8th Cir. 2019) (per curiam). In light of Franklin, they also agree that the Wisconsin burglary statute under which Webster was convicted is broader than generic burglary under the ACCA. Thus, these convictions “do not qualify as violent felonies under the ACCA.” See id. The Government “agrees that the case should be remanded to the district court for resentencing” without the ACCA enhancement. Accordingly, we vacate Webster’s sentence and remand for resentencing without application of the ACCA. LOKEN, Circuit Judge, concurring. United States v. Holston is an unpublished opinion that is not controlling precedent, and I believe it was wrongly decided. However, as the government agrees this case should be remanded for resentencing, I concur. ______________________________ -2-
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