United States v. Richard Lee Counts

Eighth Circuit

United States v. Richard Lee Counts

305 F. App'x 304

CourtCourt of Appeals for the Eighth Circuit

DecidedDecember 30, 2008

Docket06-2919

StatusUnpublished

This text of 305 F. App'x 304 (United States v. Richard Lee Counts) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Richard Lee Counts, 305 F. App'x 304 (8th Cir. 2008).

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Opinion

PER CURIAM.

This case is before the court on remand from the Supreme Court for further consideration in light of Begay v. United States, — U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Counts was sentenced to a statutory minimum term of 180 months’ imprisonment for unlawful possession of a firearm as a felon. The sentence was based on the district court’s determination that Counts qualified as an armed career criminal within the meaning of 18 U.S.C. § 924(e), because he had sustained three prior convictions for a violent felony or a serious drug offense. See 18 U.S.C. § 924(e)(2). One of those convictions involved the offense of tampering with a vehicle by operation in Missouri. See Mo. Rev.Stat. § 569.080. In a prior opinion, we affirmed the judgment of the district court, including its determination that Counts’s prior conviction for tampering by operation was a “violent felony.” See United States v. Counts, 498 F.3d 802 (8th Cir.2007) (per curiam), vacated, — U.S. -, 128 S.Ct. 2049, 170 L.Ed.2d 790 (2008).

After this case was remanded, another panel of this court, relying on Begay, overruled circuit precedent and held that auto tampering by operation in Missouri is not a crime of violence under USSG § 4B1.2. United States v. Williams, 537 F.3d 969, 974-75 (8th Cir.), reh’g denied, 546 F.3d 961 (8th Cir.2008). The Williams opinion stated that the inquiry applicable to § 4B1.2 also governs whether an offense is a violent felony under § 924(e), and thus effectively abrogated circuit precedent holding that tampering by operation is a violent felony. See United States v. Bockes, 447 F.3d 1090, 1092-93 (8th Cir. *305 2006). In light of Williams, Counts’s prior offense of tampering by operation is not a violent felony, and Counts does not qualify as an armed career criminal based on his prior conviction for this offense. Accordingly, the district court’s judgment is vacated, and the case is remanded for resentencing.

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PER CURIAM.

This case is before the court on remand from the Supreme Court for further consideration in light of Begay v. United States, — U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Counts was sentenced to a statutory minimum term of 180 months’ imprisonment for unlawful possession of a firearm as a felon. The sentence was based on the district court’s determination that Counts qualified as an armed career criminal within the meaning of 18 U.S.C. § 924(e), because he had sustained three prior convictions for a violent felony or a serious drug offense. See 18 U.S.C. § 924(e)(2). One of those convictions involved the offense of tampering with a vehicle by operation in Missouri. See Mo. Rev.Stat. § 569.080. In a prior opinion, we affirmed the judgment of the district court, including its determination that Counts’s prior conviction for tampering by operation was a “violent felony.” See United States v. Counts, 498 F.3d 802 (8th Cir.2007) (per curiam), vacated, — U.S. -, 128 S.Ct. 2049, 170 L.Ed.2d 790 (2008).

After this case was remanded, another panel of this court, relying on Begay, overruled circuit precedent and held that auto tampering by operation in Missouri is not a crime of violence under USSG § 4B1.2. United States v. Williams, 537 F.3d 969, 974-75 (8th Cir.), reh’g denied, 546 F.3d 961 (8th Cir.2008). The Williams opinion stated that the inquiry applicable to § 4B1.2 also governs whether an offense is a violent felony under § 924(e), and thus effectively abrogated circuit precedent holding that tampering by operation is a violent felony. See United States v. Bockes, 447 F.3d 1090, 1092-93 (8th Cir. *305 2006). In light of Williams, Counts’s prior offense of tampering by operation is not a violent felony, and Counts does not qualify as an armed career criminal based on his prior conviction for this offense. Accordingly, the district court’s judgment is vacated, and the case is remanded for resentencing.

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305 F. App'x 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-lee-counts-ca8-2008.

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