Defendant was convicted of possession with intent to distribute, using a firearm during drug-trafficking and being a felon in possession of a firearm. At sentencing, the district court overruled defendant’s objection to using his two prior convictions for fleeing an officer in a vehicle as crimes of violence under the residual clause of the Armed Career Criminal Act. The district court then varied downward from the advisory guidelines range, stating it would have imposed the same concurrent sentence without the effect of the ACCA.
Where defendant’s sentence was the same under the non-vacated judgment in another count and the district court expressly stated that its sentence was based on the statutory sentencing factors rather than the ACCA enhancement, the court affirmed defendant’s sentence.
Kelly, J., dissenting: “Today, the court leaves in place a sentence that all agree is unlawful; the statutory maximum sentence on Smith’s ACCA count is 120 months’ imprisonment, yet Smith received a sentence of 220 months. To do so, the court relies on the concurrent sentence doctrine. In my view, that doctrine is inapplicable here, so I respectfully dissent.”
Judgment is affirmed.
Smith v. U.S. (MLW No. 73593/Case No. 17-3201 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, District of Minnesota, Doty, J. (Robin M. Wolpert, of Minneapolis, MN for appellant) (David Genrich, AUSA, of Minneapolis, MN for appellee)