Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Riley, Chief Judge.
Submitted: February 12, 2010
Before RILEY,*fn1 Chief Judge, SMITH and SHEPHERD, Circuit Judges.
Jason Donald Hamilton appeals the sentence he received at his resentencing hearing. Hamilton argues the district court*fn2 erred in increasing his base offense level to 22 pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2K2.1(a)(3) based on Hamilton's prior conviction for second degree assault. Because we hold Hamilton forfeited his right to challenge the classification of his prior conviction as a crime of violence, we affirm.
In October 2006, Hamilton pled guilty to being a felon in possession of an explosive device and possession of an unregistered destructive device, namely a pipe bomb, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and 26 U.S.C. §§ 5845, 5861(d) and 5871. Hamilton had two prior felony convictions in Missouri state court:
(1) stealing a car, and (2) assault in the second degree. Based on these prior convictions, the district court found Hamilton's base offense level was 26 pursuant to U.S.S.G. § 2K2.1(a)(1) (establishing a base offense level of 26 "if (A) the offense involved a [destructive device]; and (B) the defendant committed . . . the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense"). The district court sentenced Hamilton to two concurrent terms of 120 months imprisonment.
Hamilton appealed his sentence, asserting the district court incorrectly treated Hamilton's conviction for stealing a car as a crime of violence, and thus miscalculated Hamilton's base offense level. See United States v. Hamilton, 261 F. App'x 928 (8th Cir. 2008). Hamilton also argued "that his guilty plea was involuntary, that his counsel was ineffective, and that the district court improperly included in his criminal history a prior vehicle-tampering conviction." Id. We found no error and affirmed the district court. See id. at 928, 929.
In January 2009, Hamilton filed a motion to vacate, correct, or set aside his sentence pursuant to 28 U.S.C. § 2255. Among other things, Hamilton argued the district court incorrectly categorized Hamilton's prior conviction for stealing a car as a crime of violence. The government conceded, and the district court found, Hamilton was entitled to resentencing pursuant to our court's August 2008 decision in United States v. Williams, 537 F.3d 969, 975 (8th Cir. 2008) ("[A]pplying Missouri law, we conclude that auto theft by deception [and] auto theft without consent . . . are not crimes of violence for purposes of U.S.S.G. § 2K2.1(a)(2)."). The district court denied Hamilton's motion in all other respects.
The district court ordered a new presentence investigation report (PSR) for Hamilton. The new PSR calculated a base offense level of 22 based on Hamilton's second degree assault conviction. See U.S.S.G. § 2K2.1(a)(3) (establishing a base offense level of 22 "if (A) the offense involved a [destructive device]; and (B) the defendant committed . . . the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense"). Hamilton objected to the PSR, arguing his assault conviction did not qualify as a crime of violence because Hamilton had been charged with and convicted of "recklessly caus[ing] serious physical injury to [Hamilton's victim] by repeatedly hitting and kicking him," in violation of Mo. Rev. Stat. § 565.060(3).
Hamilton was resentenced in July 2009. At the resentencing hearing, Hamilton moved to reopen his § 2255 motion to add a challenge to the district court's previous determination that Hamilton's second degree assault conviction was a crime of violence for purposes of U.S.S.G. § 2K2.1(a). The district court denied Hamilton's motion. Hamilton then requested the district court expand the scope of the resentencing hearing and consider, on the merits, whether Hamilton's prior conviction for recklessly causing serious physical injury constituted a crime of violence. The district court determined Hamilton had forfeited his right to object to the district court's classification of the second degree assault conviction as a crime of violence because Hamilton failed to make the objection at an earlier stage in the proceedings. The district court then stated, even if Hamilton had not forfeited his objection, the district court would have found Hamilton's conviction qualified as a crime of violence. The district court sentenced Hamilton to two concurrent terms of 84 months imprisonment. Hamilton again appeals.
Hamilton claims the district court erred in applying a U.S.S.G. § 2K2.1(a)(3) enhancement based on the district court's finding that Hamilton's prior conviction for reckless assault was a crime of violence. "We review de novo a district court's finding that prior convictions constitute crimes of violence as defined in § [2K2.1(a)(3)]." United States v. Davis, 583 F.3d 1081, 1092 (8th Cir. 2009) (quoting United States v. LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006)).
The government asserts Hamilton forfeited his right to challenge whether his prior conviction for reckless assault qualifies as a crime of violence because Hamilton failed to raise that objection at his initial sentencing hearing, in his initial ...