United States v. Patrick Hott ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1494
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Patrick Donald Hott, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 4, 2008
Filed: February 8, 2008
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Patrick Donald Hott appeals the 120-month prison sentence the district court1
imposed after he pleaded guilty to distribution of, and aiding and abetting the
distribution of, in excess of 50 grams of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A)(viii), and 18 U.S.C. § 2. The court classified him as a career
offender under U.S.S.G. § 4B1.1 on the basis of his prior Minnesota convictions for
theft of a motor vehicle and second degree assault, resulting in an advisory Guidelines
range of 262-327 months in prison, but departed downward after granting a U.S.S.G.
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
§ 5K1.1 substantial-assistance motion by the government. For reversal, Hott argues
that the career-offender provision should not have been applied because attempted
theft of a motor vehicle is not a crime of violence, and that this Circuit’s categorical
approach classifying this offense as such in United States v. Sun Bear, 307 F.3d 747(8th Cir. 2002), conflicts with the Supreme Court’s holding in Leocal v. Ashcroft, 543
U.S. 1 (2004).
Hott’s challenge is foreclosed by United States v. Barbour, 395 F.3d 826 (8th
Cir. 2005), in which this court concluded that Sun Bear remains binding precedent
after Leocal, and only the court sitting en banc may reverse Sun Bear’s holding. See
Barbour, 395 F.3d at 827-28 (Eighth Circuit precedent bound panel to hold vehicle-
theft conviction constituted crime of violence); Sun Bear, 307 F.3d at 752-53 (holding
categorically that “the theft or attempted theft of an operable vehicle is a crime of
violence” under U.S.S.G. § 4B1.2); United States v. Wright, 22 F.3d 787, 788 (8th
Cir. 1994) (panel of this court is bound by prior Eighth Circuit decision unless prior
decision is overruled by this court sitting en banc).
Accordingly, we affirm.
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