United States v. Anthony L. Henderson , 301 F. App'x 574 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3817
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Anthony L. Henderson, *
* [UNPUBLISHED]
Defendant - Appellant. *
___________
Submitted: June 16, 2008
Filed: December 5, 2008
___________
Before BYE, RILEY, and MELLOY, Circuit Judges.
___________
PER CURIAM.
The appellant's conviction and sentence in this case were affirmed in an opinion
filed August 10, 2007. Subsequently, this matter was appealed to the United States
Supreme Court, which granted certiorari and remanded for further consideration in
light of Begay v. United States, 128 S. Ct. 1581 (2008).
Appellant Henderson's Guideline offense level was computed pursuant to
U.S.S.G. § 2K2.1(a)(2) and set at a base offense level 24. That offense level was
predicated upon Mr. Henderson having two prior felony convictions for crimes of
violence. One of the predicate convictions was for auto tampering. This court's
decision in United States v. Williams, 537 F.3d 969 (8th Cir. 2008) determined that
auto tampering no longer qualifies as a crime of violence following the United States
Supreme Court decision in Begay. Consequently, we directed the parties to file briefs
as to whether Mr. Henderson had two prior violent felonies without consideration of
the auto tampering offense. The United States government has now filed a letter brief
indicating that it concedes Mr. Henderson has only one predicate offense for a crime
of violence. This will have the effect of reducing Mr. Henderson's base offense level
to a level 20, pursuant to U.S.S.G. § 2K2.1(a)(4).
Accordingly, the sentence previously imposed in this case is vacated and the
matter is remanded for resentencing consistent with this opinion.
RILEY, Circuit Judge, concurring.
I continue to agree with Judge Colloton’s dissent from denial of rehearing en
banc in United States v. Williams, No. 07-2679, 2008 WL 4767458 (8th Cir. Nov. 3,
2008).
______________________________
-2-