United States v. James Kearney ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0499n.06
No. 21-5132
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Dec 05, 2022
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, )
ON APPEAL FROM THE
)
v. UNITED STATES DISTRICT
)
COURT FOR THE WESTERN
)
JAMES E. KEARNEY, DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
OPINION
)
)
Before: KETHLEDGE, WHITE, and BUSH, Circuit Judges.
KETHLEDGE, Circuit Judge. This case has a complicated procedural history, but the
relevant parts are these. Both parties agree that James Kearney’s sentence is procedurally
unreasonable because the district court mistakenly concluded that a 2013 conviction was a
predicate offense under the Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e)(1). And the
court’s determination that Kearney was an armed career criminal affected the entirety of his
sentence. We therefore vacate and remand for resentencing in light of his actual criminal history.
In September 2020, James Kearney pled guilty to federal charges of distributing
methamphetamines and possessing a firearm as a convicted felon. Given his multiple state-court
convictions, the government contended that Kearney was an armed career criminal—a
classification that mandated a statutory-minimum sentence of 180 months. The parties agreed that
Kearney’s sentence should not exceed 188 months, but Kearney disputed the ACCA designation
and reserved the right to appeal that issue. The district court found that Kearney was an armed
career criminal and sentenced him to 180 months’ imprisonment.
No. 21-5132, United States v. Kearney
Kearney appealed his sentence, challenging his status as an armed career criminal. While
we considered that appeal, he filed a motion—which the government joined—to remand the case
to the district court to identify the prior convictions that supported its determination that Kearney
was an armed career criminal. We granted that motion and remanded for the district court to clarify
its reasoning.
The district court thereafter issued an order explaining that three state-court convictions
supported Kearney’s enhancement: one in 2007 for cocaine trafficking, and two in 2013 for
complicity to traffic heroin. Each conviction carried a maximum penalty of at least 10 years’
imprisonment, which is a prerequisite to treat them as predicate offenses under the ACCA. See 18
U.S.C. § 924(e)(2).
Kearney then filed a motion to reconsider, arguing that newly discovered evidence (a plea
agreement and courtroom video) showed that one of his 2013 heroin convictions did not qualify
as an ACCA predicate offense. In that 2013 case, Kearney had been charged with complicity to
trafficking two grams or more of heroin, which carried a maximum sentence of 10 years’
imprisonment. But Kearney in fact pled guilty to complicity to trafficking less than two grams of
heroin, which carried a maximum sentence of only five years. Kearney produced the original,
written plea agreement indicating his actual sentence and the courtroom video of his plea to the
lesser charge; and the government agreed that Kearney’s new evidence showed that this conviction
was not an ACCA predicate. Yet the district court denied Kearney’s motion on the ground that
our earlier remand did not permit the court to consider it.
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No. 21-5132, United States v. Kearney
Whatever the merits of that determination, we agree with Kearney and the government that
one of his 2013 heroin convictions did not constitute an ACCA predicate offense. As a result, his
sentence was procedurally unreasonable. Gall v. United States, 552 U.S. 38, 51 (2007). Thus we
vacate and remand for plenary resentencing.
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