United States v. Micah A. Johnson ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2913
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Micah A. Johnson, * Western District of Missouri.
*
Appellant. * [PUBLISHED]
*
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Submitted: May 5, 2006
Filed: May 15, 2006
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Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
After Micah Johnson pleaded guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the district court1 sentenced him
to 30 months in prison and three years of supervised release. In determining
Johnson’s Guidelines imprisonment range, the district court calculated a base offense
level of 20 under U.S.S.G. § 2K2.1(a)(4)(A), which is applicable when a defendant
commits the offense of conviction after sustaining a felony conviction for a “crime of
1
The Honorable Fernando J. Gaitan, United States District Judge for the
Western District of Missouri.
violence,” as defined under U.S.S.G. § 4B1.2. See U.S.S.G. § 2K2.1, comment. (n.1).
Over Johnson’s objection, the district court concluded that Johnson’s Florida grand
theft auto conviction was for a crime of violence within the meaning of section 4B1.2.
Johnson appeals, renewing his argument that his Florida conviction was not for a
crime of violence, and we affirm.
As he did below, Johnson concedes that in United States v. Sun Bear, 307 F.3d
747, 753 (8th Cir. 2002), cert. denied, 539 U.S. 916 (2003), we held that vehicle theft
is a crime of violence within the meaning of section 4B1.2. He argues, however, that
the district court erred in light of Leocal v. Ashcroft, 543 U.S. 1 (2004), and our
decision in United States v. Walker, 393 F.3d 819 (8th Cir. 2005), and he points to
concurrences and dissents in Sun Bear and United States v. Sprouse, 394 F.3d 578
(8th Cir. 2005) as support for his position.
Regardless of any questions raised about the reasoning and the continued
vitality of Sun Bear, it remains the law of this circuit until and unless our court en
banc concludes otherwise. See United States v. Scott, 413 F.3d 839, 840 (8th Cir.
2005) (expressing awareness of disagreement in other circuits, concluding that Leocal
involved different category of offenses and was inapposite, and affirming
enhancement for prior vehicle-theft conviction based on Sun Bear), cert. denied, 126
S. Ct. 1091 (2006); Sprouse, 394 F.3d at 581 (panel is bound by prior Eighth Circuit
decision unless overruled by court en banc). Accordingly, it is dispositive here.
We note that Johnson’s reliance on Walker is misplaced, because Walker
involved an entirely different crime, operating a motor vehicle while intoxicated
(OWI). See Walker, 393 F.3d at 825-27 (holding that OWI under Iowa law is not
crime of violence under § 4B1.2). In addition, our Court en banc recently rejected the
reasoning of Walker in United States v. McCall, 439 F.3d 967, 970-73 (8th Cir. 2006)
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(en banc) (holding that a felony conviction for driving, as opposed to merely causing
the vehicle to function by starting its engine, while intoxicated is a crime of violence).
Accordingly, we affirm.
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