United States v. Richard Lee Counts

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2919
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Richard Lee Counts, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 28, 2008
Filed: December 30, 2008 (Corrected 1/21/09)
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Before COLLOTON, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
This case is before the court on remand from the Supreme Court for further
consideration in light of Begay v. United States, 128 S. Ct. 1581 (2008). Counts was
sentenced to a statutory minimum term of 180 months’ imprisonment for unlawful
possession of a firearm as a felon. The sentence was based on the district court’s
determination that Counts qualified as an armed career criminal within the meaning
of 18 U.S.C. § 924(e), because he had sustained three prior convictions for a violent
felony or a serious drug offense. See 18 U.S.C. § 924(e)(2). One of those convictions
involved the offense of tampering with a vehicle by operation in Missouri. See Mo.
Rev. Stat. § 569.080. In a prior opinion, we affirmed the judgment of the district
court, including its determination that Counts’s prior conviction for tampering by
operation was a “violent felony.” See United States v. Counts, 498 F.3d 802 (8th Cir.
2007) (per curiam), vacated, 128 S. Ct. 2049 (2008).
After this case was remanded, another panel of this court, relying on Begay,
overruled circuit precedent and held that auto tampering by operation in Missouri is
not a crime of violence under USSG § 4B1.2. United States v. Williams, 537 F.3d
969, 974-75 (8th Cir.), reh’g denied, 546 F.3d 961 (8th Cir. 2008). The Williams
opinion stated that the inquiry applicable to § 4B1.2 also governs whether an offense
is a violent felony under § 924(e), and thus effectively abrogated circuit precedent
holding that tampering by operation is a violent felony. See United States v. Johnson,
417 F.3d 990, 999 (8th Cir. 2005). In light of Williams, Counts’s prior offense of
tampering by operation is not a violent felony, and Counts does not qualify as an
armed career criminal based on his prior conviction for this offense. Accordingly, the
district court’s judgment is vacated, and the case is remanded for resentencing.
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