USA v. Terrance Dowlen

Filing

Per Curiam OPINION filed : In light of Johnson's holding, Dowlen's 2004 conviction for second-degree burglary no longer qualifies as an ACCA predicate offense, as the government concedes. As a result, Dowlen no longer has three predicate convictions under ACCA. We therefore REVERSE the district court's determination that Dowlen is an armed career criminal, VACATE his sentence, and REMAND for resentencing; decision not for publication. Gilbert S. Merritt, Martha Craig Daughtrey, and Richard Allen Griffin, Circuit Judges.

Case: 14-4238

Document: 22-2

Filed: 10/01/2015

Page: 1

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0671n.06
No. 14-4238
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRANCE DOWLEN,
Defendant-Appellant.

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FILED
Oct 01, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

BEFORE: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.
PER CURIAM.
Terrance Dowlen pleaded guilty to being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court determined that Dowlen
had committed three previous “violent” felonies and sentenced him to a mandatory minimum
term of fifteen years in prison under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e). Dowlen appeals, arguing that the district court erred in sentencing him as an armed
career criminal. Based on the Supreme Court’s intervening decision in Johnson v. United States,
135 S. Ct. 2551 (2015), we agree, vacate Dowlen’s sentence, and remand for resentencing.
Under the ACCA, a person convicted of being a felon in possession is subject to a
mandatory fifteen-year prison term if that person has three prior convictions for a “violent
felony.” 18 U.S.C. § 924(e)(1). “Violent felony” is defined as “any crime punishable by

Case: 14-4238

Document: 22-2

Filed: 10/01/2015

Page: 2

No. 14-4238
United States v. Dowlen
imprisonment for a term exceeding one year” that satisfies one of three requirements: (1) it “has
as an element the use, attempted use, or threatened use of physical force against the person of
another”; (2) it “is burglary, arson, or extortion, involves use of explosives”; or (3) it “otherwise
involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(i) and (ii). The third option is known as the “residual clause.”
Dowlen argues the district court incorrectly counted his 2004 Ohio conviction for seconddegree burglary, Ohio Rev. Code § 2911.12(A)(2), as a previous “violent felony.”

Over

Dowlen’s objection, the district court held Ohio’s second-degree burglary statute falls under the
“residual clause” of § 924(e)(2)(B)(ii) because it otherwise presents an inherent risk of serious
injury to others. See December 4, 2014, Sent. Trans., pp. 6–8 (citing United States v. Coleman,
655 F.3d 480, 483 (6th Cir. 2011) (holding that Ohio’s third-degree burglary statute qualifies as a
“violent felony” under the residual clause)). However, in Johnson, the Supreme Court held that
the residual clause violated the Fifth Amendment’s Due Process Clause because it was
unconstitutionally vague. 135 S. Ct. at 2563. In light of Johnson’s holding, Dowlen’s 2004
conviction for second-degree burglary no longer qualifies as an ACCA predicate offense, as the
government concedes (see 9/1/15 Appellee Rule 28(j) Letter).1 As a result, Dowlen no longer
has three predicate convictions under the ACCA. We therefore reverse the district court’s
determination that Dowlen is an armed career criminal, vacate his sentence, and remand for
resentencing.

1

The government does not argue that Dowlen’s burglary conviction satisfies either of the
other two “violent felony” requirements of § 924(e)(2)(B).
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