557 F.3d 623 (8th Cir. 2009), 08-1734, United States v. Gordon

Docket Nº:08-1734.
Citation:557 F.3d 623
Party Name:UNITED STATES of America, Appellee, v. George L. GORDON, Appellant.
Case Date:February 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 623

557 F.3d 623 (8th Cir. 2009)

UNITED STATES of America, Appellee,

v.

George L. GORDON, Appellant.

No. 08-1734.

United States Court of Appeals, Eighth Circuit.

February 24, 2009

Submitted: Oct. 14, 2008.

Susan M. Hunt, Kansas City, MO, argued, for appellant.

Stefan C. Hughes, Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee.

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

BEAM, Circuit Judge.

George L. Gordon appeals his sentence after pleading guilty to possessing a firearm as a convicted felon. The district court imposed a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), after finding Gordon had three prior convictions for " violent felon[ies]." Because we conclude Gordon's 2004 Missouri conviction for endangering the welfare of a child in the first degree is not an ACCA predicate offense, we vacate his sentence and remand for resentencing.

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I. BACKGROUND

In November 2006, Kansas City, Missouri, police officers arrested Gordon on an outstanding warrant during the course of a traffic stop. After a search of Gordon's vehicle incident to his arrest revealed a .357 caliber revolver, Gordon pleaded guilty to the felon-in-possession charge underlying the instant appeal. The presentence investigation report (PSR) revealed several prior felony convictions, including a 1996 Missouri conviction for second-degree robbery and armed criminal action; a 2004 Missouri conviction for endangering the welfare of a child in the first degree; and a 2006 Missouri conviction for domestic assault. The PSR deemed those three offenses " violent felon[ies]" within the meaning of the ACCA, and consequently found Gordon was subject to a fifteen-year mandatory minimum sentence.

At sentencing, Gordon argued his child endangerment conviction was not a " violent felony" under the ACCA. Thus, Gordon asserted he had only two convictions for ACCA predicate offenses and was not subject to the fifteen-year mandatory minimum. In response, the government noted Gordon's conviction arose out of his relationship with a young girl, likened his offense to statutory rape and drew the district court's attention to United States v. Mincks, 409 F.3d 898, 900 (8th Cir.2005), in which we found statutory rape categorically qualifies as a violent felony under the ACCA. Although the government recognized child endangerment and statutory rape are distinct offenses, it urged the court to follow Mincks because of the specific facts underlying Gordon's child endangerment conviction. The district court sided with the government, overruled Gordon's objection, and sentenced Gordon to 180 months in prison and three years of supervised release. This appeal followed.

II. DISCUSSION

The ACCA mandates a fifteen-year minimum prison term for those felons who unlawfully possess firearms following three or more convictions for certain drug offenses or violent felonies committed on occasions distinct from one another. 18 U.S.C. § 924(e)(1). For these purposes, a " violent felony" includes any offense punishable by imprisonment for a term exceeding one year which " is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. " Id. § 924(e)(2)(B)(ii) (emphasis added). The only issue before us is whether Gordon's prior offense qualifies as a " violent felony" within the meaning of the italicized language-the ACCA's so-called " otherwise" clause. See United States v. Williams, 537 F.3d 969, 972 (8th Cir.2008).1 We review de novo whether a prior conviction qualifies as an ACCA predicate offense. United States v. Van, 543 F.3d 963, 966 (8th Cir.2008).

Until recently, our decisions interpreting the " otherwise" clause focused on whether the risk of physical injury associated with an unlisted crime was similar in degree to the risks of injury associated with the example crimes: burglary, arson, extortion and offenses involving the use of explosives. Williams, 537 F.3d at 972 (citing various prior cases). See also, e.g., Mincks, 409 F.3d at 900. As the Supreme

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Court recently clarified, however, the " otherwise" clause is not a catchall provision intended to reach every potentially dangerous prior offense. Begay v. United States,...

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