USA v. Daniel Austin, Jr.

Filing

Per Curiam OPINION filed : We VACATE Austin s sentence and REMAND the case to the district court for resentencing in light of Johnson, decision not for publication. Jane Branstetter Stranch, Circuit Judge; Bernice Bouie Donald, Circuit Judge and Kermit Victor Lipez, Circuit Judge for the First Circuit, sitting by designation.

Case: 15-3210

Document: 17-1

Filed: 12/03/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0782n.06
No. 15-3210
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL T. AUSTIN, JR.,
Defendant-Appellant.

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FILED
Dec 03, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

BEFORE: STRANCH, DONALD, and LIPEZ, Circuit Judges.*

PER CURIAM. Daniel T. Austin, Jr., a federal prisoner, appeals the 180-month sentence
imposed following his guilty plea to a charge of being a felon in possession of a firearm and
ammunition.
The district court sentenced Austin as an armed career criminal under 18 U.S.C. § 924(e)
because he had three prior violent felony convictions: attempted aggravated burglary, felonious
assault, and aggravated robbery with a firearm specification. Austin argued that one of the cases
was improperly transferred from juvenile court, but the district court rejected that argument and
sentenced Austin to the mandatory minimum sentence of 180 months.
Austin reasserts his argument on appeal and also argues that the holding in Johnson v.
United States, 135 S. Ct. 2551 (2015), finding the “residual clause” of § 924(e)

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The Honorable Kermit V. Lipez, Circuit Judge of the United States Court of Appeals for
the First Circuit, sitting by designation.

Case: 15-3210

Document: 17-1

Filed: 12/03/2015

Page: 2

No. 15-3210, United States v. Austin
unconstitutionally vague, renders his sentencing as an armed career criminal erroneous. The
government concedes that Johnson controls and that the sentence must be vacated and the case
remanded for resentencing. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“[A] new rule
for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal,
pending on direct review or not yet final, with no exception for cases in which the new rule
constitutes a ‘clear break’ with the past.”). Accordingly, we vacate Austin’s sentence and
remand the case to the district court for resentencing in light of Johnson.

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