United States v. Langston, No. 14-1073 (8th Cir. 2015)

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Defendant pled guilty to illegally possessing a firearm. The district court sentenced defendant to 180 months in prison, the mandatory minimum under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(1). Applying the categorical approach, the court concluded that, by the plain language of the Iowa Code, defendant's terrorism conviction was an ACCA predicate violent felony requiring the use of force, threat, or intimidation. The Eighth Circuit affirmed: Defendant's conviction of going armed with intent under Iowa Code section 708.8 was also a predicate violent felony, falling under the residual clause of section 924(e)(2)(B)(ii); there was no Sixth Amendment violation under Alleyne v. United States; because the challenged enhancement was based solely on defendant's prior felony drug conviction, it continues to fall under the recidivism exception to the jury presentation requirement; and the district court properly determined that defendant had four predicate offenses and was an armed career criminal for sentencing purposes. The Supreme Court vacated and remanded for reconsideration in light of its 2015 decision, Johnson v. United States. The Eighth Circuit again affirmed the conviction, striking a finding that the going-armed-with-intent conviction was a predicate felony under the residual clause.

Court Description: Per Curiam - Before Murphy, Melloy and Benton, Circuit Judges] Criminal case - Sentencing. On remand from the Supreme Court for reconsideration in light of Johnson v U.S., 135 S. Ct. 2551 (2015). For the court's prior opinion see U.S. v. Langston, 772 F.3d 560 (8th Cir. 2014). In light of Johnson, defendant's Iowa state court conviction for going armed with intent is not a qualifying violent felony; however, defendant still has three qualifying convictions and he was properly sentenced as an armed career criminal. The prior panel opinion is reinstated except for two paragraphs, 772 F.3d at 563, finding that going-armed-with intent is a predicate felony under the residual clause.

This opinion or order relates to an opinion or order originally issued on November 19, 2014.

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 14-1073 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Ronnie Lee Langston lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Sioux City ____________ Submitted: August 3, 2015 Filed: August 6, 2015 [Published] ____________ Before MURPHY, MELLOY, and BENTON, Circuit Judges. ____________ PER CURIAM. This court previously affirmed Ronnie Lee Langston’s sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). See United States v. Langston, 772 F.3d 560 (8th Cir. 2014) (per curiam). The Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Having jurisdiction under 28 U.S.C. § 1291, this court affirms the district court1 and reinstates the previous opinion in part. Langston pled guilty to possessing a firearm in violation of 18 U.S.C. § 922(g). The district court sentenced him as an armed career criminal to 180 months’ imprisonment. See § 924(e)(1) (mandatory minimum of 180 months if a felon in possession of a firearm has three prior convictions for violent felonies or serious drug offenses). At sentencing, the court found that four prior convictions were violent felonies: terrorism, going armed with intent, theft, and burglary. Langston did not dispute that the theft and burglary convictions were violent felonies. This court affirmed, holding that the terrorism conviction is a violent felony under the ACCA’s first clause. See § 924(e)(2)(B)(i) (crime is a violent felony if it “has as an element the use, attempted use, or threatened use of physical force against the person of another”). Alternatively, this court found that Langston’s going-armed-with-intent conviction is a violent felony under the “residual clause” of the ACCA. See § 924(e)(2)(B)(ii) (crime is a violent felony if it “otherwise involves conduct that presents a serious potential risk of physical injury to another”). In Johnson, the Supreme Court struck down the residual clause as unconstitutionally vague. See Johnson, 135 S. Ct. at 2556-57 (noting vagueness in criminal statutes is prohibited by due process). In light of Johnson, Langston’s going-armed-with-intent conviction is not a qualifying violent felony. However, Johnson “does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.” Id. at 2563. As explained by the previous opinion, Langston’s terrorism conviction is a violent felony under the ACCA’s first clause. See 772 F.3d at 562-63. 1 The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa. -2- Langston thus has three qualifying convictions. The district court properly sentenced him as an armed career criminal. See § 924(e)(1) (requiring “three previous convictions . . . for a violent felony or a serious drug offense”). See also United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir. 2005) (discussing harmless error), citing, e.g., Chapman v. California, 386 U.S. 18, 24 (1967). The judgment is affirmed. The panel opinion is reinstated except for the two paragraphs, 772 F.3d at 563, finding that the going-armed-with-intent conviction is a predicate felony under the residual clause. ______________________________ -3-

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