United States v. Anthony Villarreal , 314 F. App'x 911 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1698
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Anthony R. Villarreal, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 14, 2008
Filed: March 20, 2009 (Corrected March 24, 2009)
(Corrected March 31, 2009)
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Before COLLOTON, BOWMAN and BENTON, Circuit Judges.
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PER CURIAM.
Anthony Villarreal pled guilty to unlawful possession of a firearm as a
previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the
district court determined that Villarreal was a career offender under USSG § 4B1.1,
and that his base offense level was 26 under USSG § 2K2.1(a)(1), because he had
sustained one prior conviction for a felony controlled substance offense and one prior
conviction for a felony crime of violence. The crime of violence was a Missouri
conviction for tampering with a motor vehicle by operation. See Mo. Rev. Stat.
§ 569.080. After other adjustments based on USSG §§ 2K2.1(b)(3)(B) and 3E1.1, the
court calculated the advisory guideline range to be 110 to 120 months’ imprisonment.
Villarreal did not object to the guideline calculation, but argued that the district
court should vary from the advisory guidelines because of sentencing disparity caused
by the crime-of-violence determination, and because of mitigating factors surrounding
the offense of conviction. The district court rejected Villarreal’s arguments and
imposed a sentence of 110 months’ imprisonment, at the bottom of the advisory range.
Villarreal appeals, arguing that the district court erred in finding that his prior
Missouri conviction for tampering with a motor vehicle by operation is a crime of
violence within the meaning of USSG § 4B1.2, and in failing to consider adequately
the sentencing factors set forth in § 3553(a).
While Villarreal’s appeal was pending, the Supreme Court decided Begay v.
United States, 128 S. Ct. 1581 (2008), which held that the New Mexico offense of
driving under the influence was not a “violent felony” under 18 U.S.C. § 924(e).
Thereafter, another panel of this court, relying on Begay, overruled circuit precedent
and held that the Missouri offense of auto tampering by operation is not a crime of
violence under USSG § 4B1.2. See United States v. Williams, 537 F.3d 969, 974-75
(8th Cir.), reh’g denied, 546 F.3d 961 (8th Cir. 2008). Therefore, under current law,
the district court plainly erred in determining that Villarreal’s previous conviction for
tampering by operation was a crime of violence. See United States v. Davidson, 551
F.3d 807, 808 (8th Cir. 2008) (per curiam). Without such a determination, Villarreal’s
advisory guideline range would have been 46-57 months’ imprisonment rather than
110-120 months’ imprisonment. Although the district court briefly indicated that it
would consider imposing the same sentence without Villarreal’s career offender
status, S. Tr. 47, we nonetheless believe there is at least a reasonable probability that
a reduced advisory range would have influenced the district court to impose a more
lenient sentence. Davidson, 551 F.3d at 808. Accordingly, we conclude that relief is
warranted under a plain error standard of review. See id.
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For these reasons, we vacate the judgment of the district court and remand for
resentencing. We decline at this juncture to address Villarreal’s challenge to the
district court’s consideration of the § 3553(a) factors. See United States v. Huber, 404
F.3d 1047, 1063 (8th Cir. 2005).
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