United States v. Dowlen
Opinion of the Court
Terrance Dowlen pleaded guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court determined that Dowlen had committed three previous “violent” felonies and sentenced him to a mandatory minimum term of fifteen years in prison under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Dowlen appeals, arguing that the district court erred in sentencing him as an armed career criminal. Based on the Supreme Court’s intervening decision in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), we agree, vacate Dowlen’s sentence, and remand for resentencing. ^
Under the ACCA, a person convicted of being a felon in possession is subject to a mandatory fifteen-year prison term if that
Dowlen argues the district court incorrectly counted his 2004 Ohio conviction for second-degree burglary, Ohio Rev.Code § 2911.12(A)(2), as a previous “violent felony.” Over Dowlen’s objection, the district court held Ohio’s second-degree burglary statute falls under the “residual clause” of § 924(e)(2)(B)(ii) because it otherwise presents an inherent risk of serious injury to others. See December 4, 2014, Sent. Trans., pp. 6-8 (citing United States v. Coleman, 655 F.3d 480, 483 (6th Cir. 2011) (holding that Ohio’s third-degree burglary statute qualifies as a “violent felony” under the residual clause)). However, in Johnson, the Supreme Court held that the residual clause violated the Fifth Amendment’s Due Process Clause because it was unconstitutionally vague. 135 S.Ct. at 2563. In light of Johnson’s holding, Dow-len’s 2004 conviction for second-degree burglary no longer qualifies as an ACCA predicate offense, as the government concedes (see 9/1/15 Appellee Rule 28(j) Letter).
. The government does not argue that Dow-len's burglary conviction satisfies either of the other two “violent felony” requirements of § 924(e)(2)(B).
Reference
- Full Case Name
- United States v. Terrance DOWLEN
- Status
- Published