U.S. v. Lindquist

• Decision Date: 31 August 2005
• Docket Number: No. 04-3753.,04-3753.
• Citation: 421 F.3d 751
• Parties: UNITED STATES of America, Appellee, v. James LINDQUIST, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 751

421 F.3d 751

UNITED STATES of America, Appellee, v. James LINDQUIST, Appellant.

No. 04-3753.

United States Court of Appeals, Eighth Circuit.

Submitted: June 22, 2005.

Filed: August 31, 2005.

John J. Bishop, argued, Cedar Rapids, IA, for appellant.

Robert L. Teig, argued, Asst. U.S. Atty., Cedar Rapids, IA, for appellee.

Before MELLOY, HEANEY and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

James Lindquist pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He appeals the district court's finding that his illegal possession of a firearm occurred subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense. U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (2003). He also appeals the district court's finding that he illegally possessed the firearm in connection with another felony offense. U.S.S.G. § 2K2.1(b)(5). Finally, he challenges the propriety of his sentence based on United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm in part, reverse in part, vacate the sentence and remand the case for resentencing.

I. BACKGROUND

James Lindquist pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court calculated Lindquist's base offense level to be 24 after it found that he had sustained at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(2). The first predicate conviction, which is uncontested, was for a controlled substance offense. The second predicate conviction was based alternatively on Lindquist's Iowa conviction for operating a vehicle without the owner's consent or his Iowa conviction for third degree burglary of a motor vehicle. Over Lindquist's objection, the district court concluded that either of these convictions sufficed for purposes of § 2K2.1(a).

The district court then increased Lindquist's offense level by four levels because he illegally possessed the firearm in connection with another felony offense. U.S.S.G. § 2K2.1(b)(5). Again over Lindquist's objection, the district court found that Lindquist possessed the firearm in connection with violating Iowa Code § 724.16, which prohibits acquiring ownership of a handgun without a valid annual permit to acquire handguns. Finally, the district court reduced Lindquist's offense level by three levels because of his acceptance of responsibility. U.S.S.G. § 3E1.1. With a total offense level of 25, a criminal history category of VI, and a statutory maximum sentence of 10 years, the district court calculated a sentencing range of 110 to 120 months.¹ The district court then sentenced Lindquist to 110 months' imprisonment based on a mandatory application of the guidelines and announced an alternative sentence of 110 months' imprisonment based on its discretion after considering the factors set forth in 18 U.S.C. § 3553(a). On appeal, Lindquist challenges the district court's categorization of operating a vehicle without the owner's consent and third degree burglary as crimes of violence for purposes of § 2K2.1(a)(2) and its application of the four-level enhancement under § 2K2.1(b)(5). Lindquist also argues that his sentence violates the Sixth Amendment.

II. DISCUSSION

The proper application of the sentencing guidelines remains the critical starting point for the imposition of a reasonable sentence based on the factors of 18 U.S.C. § 3553(a). United States v. Mashek, 406 F.3d 1012, 1016-17 & n. 4 (8th Cir.2005). Under the first step of the Mashek two-step analysis, we continue to review a challenge to the district court's interpretation and application of the guidelines de novo and its findings of facts for clear error. Id. at 1017. Our de novo review of the application of the guidelines includes the legal question of whether a prior conviction constitutes a crime of violence as defined by U.S.S.G. § 4B1.2. United States v. Johnson, 417 F.3d 990, 995 (8th Cir.2005). "If the sentence was imposed as the result of an incorrect application of the guidelines, we will remand for resentencing as required by 18 U.S.C. § 3742(f)(1) without reaching the reasonableness of the resulting sentence in light of § 3553(a)." Mashek, 406 F.3d at 1017.

Lindquist first challenges the district court's calculation of his base offense level pursuant to § 2K2.1(a)(2). A defendant sentenced under § 2K2.1 faces a base offense level of 24 if he committed the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(2). Since Lindquist has a prior controlled substance conviction, the issue on appeal is whether a conviction for either operating a vehicle without the owner's consent or third degree burglary of a vehicle qualifies as a crime of violence as defined by § 4B1.2. In light of the Court's recent decision in Johnson, which held that the Missouri offense of tampering with an automobile by operation is a crime of violence, we affirm the district court's holding that the Iowa aggravated misdemeanor offense of operating an automobile without the owner's consent constitutes a crime of violence.² See Johnson, 417 F.3d at 996-99.

The commentary to § 2K2.1 directs the district court to the definition of crime of violence found in § 4B1.2. U.S.S.G. § 2K2.1 cmt. n. 5. There, a prior conviction may qualify as a crime of violence if it is an "offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). The guidelines definition of "crime of violence" found in § 4B1.2 is also viewed as interchangeable with the statutory definition of "violent felony" found in 18 U.S.C. § 924(e). United States v. Johnson, 326 F.3d 934, 936 (8th Cir.2003) ("The definitions of `violent felony' and `crime of violence' are almost identical[.]"). Therefore, in determining whether a defendant has committed a predicate crime of violence for purposes of § 2K2.1(a), we are bound by our case law that is related to both crimes of violence under § 4B1.2 and violent felonies under § 924(e). See United States v. Sprouse, 394 F.3d 578, 580 (8th Cir.2005) ("Because the definitions of crime of violence and violent felony are identical, the same analysis applies in determining whether [a defendant's] convictions fall within the conduct defined.").

The Missouri offense of tampering by operation, in violation of Mo.Rev.Stat. § 569.080.1(2), is a crime of violence as defined by § 4B1.2(a)(2). Johnson, 417 F.3d at 996-99. A person commits the offense of tampering by operation in the first degree if he knowingly and unlawfully operates an automobile without the consent of the owner. Mo.Rev.Stat. § 569.080.1(2). "The Missouri offenses of `tampering by operation' [Mo.Rev.Stat. § 569.080.1(2)] and `automobile theft' [Mo.Rev.Stat. § 570.030.1] differ only with respect to the permanence of the offender's intent to deprive the owner of possession." Johnson, 417 F.3d at 997; see also Peiffer v. State, 88 S.W.3d 439, 444 (Mo. banc 2002) (per curiam) (holding that tampering by possession is the lesser included offense of automobile theft for purposes of double jeopardy). By comparison, a person commits the Iowa offense of operating a vehicle without the owner's consent when he "take[s] possession or control of ... any self-propelled vehicle ... without the consent of the owner of such, but without the intent to permanently deprive the owner thereof." Iowa Code § 714.7; see also State v. Hawkins, 203 N.W.2d 555 (Iowa 1973) (holding that the offense of operating a vehicle without the owner's consent is the lesser-included offense of automobile theft). Though "tampering by operation" may not sound exactly like "operating a vehicle without the owner's consent," the Missouri and Iowa offenses proscribe the same conduct and contain essentially the same elements. Therefore, because a violation of § 714.7 involves the same serious risks of physical injury identified in Johnson and United States v. Sun Bear, 307 F.3d 747, 752-53 (8th Cir.2002), we affirm the district court's holding that operating a vehicle without the owner's consent is a crime of violence as defined by § 4B1.2. Accordingly, we need not reach the question of whether third degree burglary is a crime of violence.³

Lindquist also challenges the district court's application of § 2K2.1(b)(5), which requires a four-level enhancement "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense." U.S.S.G. § 2K2.1(b)(5). He argues that his failure to obtain a valid annual permit to acquire handguns, in violation of Iowa Code § 724.16, is an offense for "firearms possession or trafficking" that is specifically excluded from the term "another felony offense" as used in § 2K2.1(b)(5). See U.S.S.G. § 2K2.1, cmt. n. 18. We have previously interpreted the exclusions to "another felony" narrowly, generally limiting them to the types of offenses enumerated in the application note to § 2K2.1. United States v. Kenney, 283 F.3d 934, 937 (8th Cir.2002); see also United States v. Lloyd, 361 F.3d 197, 201 (3d Cir.2004) ("[R]egardless of the interpretation given to the word `another' in 2K2.1(b)(5), `firearms possession or trafficking offenses' are categorically removed from the set of crimes that may constitute `another felony offense.'"). In the context of this appeal, an offense falls within the ambit of "firearms trafficking" when it involves illegal commercial activity involving firearms. United States v. Boumelhem, 339 F.3d 414, 427-28 (6th Cir.2003) (involving the transportation of firearms); see also United States v. English, 329 F.3d 615, 616-617 (8th Cir.2003) (reversing imposition of § 2K2.1(b)(5)...