United States v. Wendell Brown

Filing

PER CURIAM OPINION FILED - THE COURT: Kermit E. Bye, Lavenski R. Smith and Duane Benton (PUBLISHED) [4303764] [13-1590]

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,

Appellate Case: 13-1590

Page: 1

Date Filed: 08/07/2015 Entry ID: 4303764

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-

Appellate Case: 13-1590

Page: 2

Date Filed: 08/07/2015 Entry ID: 4303764