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United States v. Howard

United States Court of Appeals, Eighth Circuit

June 11, 2014

United States of America, Plaintiff - Appellee,
v.
James Jones Howard, Defendant - Appellant

Submitted, November 18, 2013

Appeal from United States District Court for the Southern District of Iowa - Des Moines.

For United States of America, Plaintiff - Appellee: John E. Beamer, Assistant U.S. Attorney, Maureen McGuire, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Des Moines, IA.

James Jones Howard, Defendant - Appellant, Pro se, Lompoc, CA.

For James Jones Howard, Defendant - Appellant: James F. Whalen, Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Southern District of Iowa, Des Moines, IA.

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

OPINION

Page 609

COLLOTON, Circuit Judge.

James Howard pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g). Based on Howard's criminal history, the district court[1] sentenced Howard to the statutory minimum sentence of fifteen years' imprisonment under the Armed Career Criminal Act (" ACCA" ). See 18 U.S.C. § 924(e). Howard appeals, arguing that neither of his sexual-abuse convictions qualifies as a violent felony under the ACCA, and that the Act's residual clause is unconstitutionally vague. We affirm.

Under the ACCA, a defendant convicted pursuant to 18 U.S.C. § 922(g) is subject to a minimum sentence of fifteen years if he has sustained at least three previous convictions for a violent felony, a serious drug offense, or both. Id. § 924(e). The Act defines " violent felony" to include " any crime punishable by imprisonment for a term exceeding one year" that is " burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B).

Howard does not dispute that he sustained two qualifying convictions, one for first-degree theft and another for second-degree murder. But he contends that neither of his sexual-abuse convictions--a 1988 Arkansas conviction for first-degree carnal abuse and a 1992 Iowa conviction for third-degree sexual abuse--constitutes a third violent felony, because neither is similar in kind, or degree of risk posed, to the offenses enumerated in § 924(e)(2)(B)(ii). The district court, citing this court's decisions in United States v. Dawn, 685 F.3d 790 (8th Cir. 2012), United States v. Scudder, 648 F.3d 630, 633 (8th Cir. 2011), and United States v. Mincks, 409 F.3d 898, 900 (8th Cir. 2005), ruled that both of these convictions fell within the ACCA's residual clause. We review that determination de novo. United States v. Whaley, 552 F.3d 904, 905 (8th Cir. 2009).

The Arkansas statute under which Howard was convicted, Arkansas Code § 5-14-104 (1988), provided that " [a] person commits carnal abuse in the first degree if, being eighteen (18) years old or older, he engages in sexual intercourse or deviate

Page 610

sexual activity with another person not his spouse who is less than fourteen (14) years old." Court records showed that Howard was convicted for engaging in sexual ...


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