United States v. Jeremy Foglesong , 314 F. App'x 904 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3662
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
*
Jeremy Lynn Foglesong, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 3, 2008
Filed: December 2, 2008
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Before MURPHY, BYE, and BENTON, Circuit Judges.
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PER CURIAM.
Jeremy Foglesong challenges the 51-month prison sentence the district court
imposed after he pleaded guilty to being a felon in possession of firearms. On appeal,
Foglesong argues that the district court erred in classifying his prior Iowa conviction
for operating a vehicle without the owner’s consent as a “crime of violence” under
U.S.S.G. § 2K2.1.
In reviewing a sentence, we must first ensure that the district court did not
commit a significant procedural error, such as improperly calculating the Guidelines
range. See Gall v. United States, 128 S. Ct. 586, 597 (2007). We review de novo the
district court’s application of the Guidelines. See United States v. Espinosa, 539 F.3d
926, 928-29 (8th Cir. 2008) (error in calculating Guidelines range would be
procedural error within meaning of Gall; reviewing de novo district court’s
application of Guidelines).
In United States v. Lindquist, 421 F.3d 751, 753-55 (8th Cir. 2005), we held
that a prior Iowa conviction for operating a vehicle without the owner’s consent
qualified as a “crime of violence” under section 2K2.1, because of its similarity to the
Missouri offense of tampering with an automobile by operation, which this court had
previously declared to be a “crime of violence.” Since then, however, the Supreme
Court issued its decision in Begay v. United States, 128 S. Ct. 1581, 1583, 1585-86
(2008) (to be “violent felony” under Armed Career Criminal Act, crime must be
“roughly similar, in kind as well as in degree of risk posed,” to examples listed in
statute; listed crimes all typically involve purposeful, violent, and aggressive conduct).
Following Begay, we held in United States v. Williams, 537 F.3d 969, 970-71, 974-76
(8th Cir. 2008) (rehearing denied), that the Missouri offenses of auto tampering and
auto theft without consent were no longer “crimes of violence” for purposes of section
2K2.1. We now likewise hold that the Iowa offense of operating a vehicle without the
owner’s consent is no longer a “crime of violence” under section 2K2.1.
Accordingly, we vacate Foglesong’s sentence, and we remand for resentencing
in accordance with this opinion.
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