Okera Kirk v. USA

Filing

Per Curiam OPINION filed : REVERSED the district court's judgment and REMANDED for further proceedings, decision not for publication pursuant to local rule 206. Jeffrey S. Sutton, Circuit Judge; Richard Allen Griffin, Circuit Judge and Helene N. White, Circuit Judge.

Case: 11-3337

Document: 006111382702

Filed: 07/27/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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

Case: 11-3337

Document: 006111382702

Filed: 07/27/2012

Page: 2

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-