United States v. O’Connor

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS October 30, 2017 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 16-3300 DARNELL SHARON O'CONNOR, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:15-CR-20079-JAR-1) _________________________________ David Magariel, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender with him on the brief), Office of the Federal Public Defender, Kansas City, Kansas, appearing for Appellant. Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with him on the brief), Office of the United States Attorney, Topeka Kansas, appearing for Appellee. _________________________________ Before BRISCOE, EBEL, and MATHESON, Circuit Judges. _________________________________ MATHESON, Circuit Judge. _________________________________ Darnell O’Connor pled guilty to violating 18 U.S.C. § 922(g)(1), which bars felons from possessing firearms. The Government argued Mr. O’Connor’s sentence should be enhanced under § 2K2.1(a)(4)(A) of the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) because he had a prior felony conviction for robbery under the Hobbs Act, 18 U.S.C. § 1951—a “crime of violence.” See U.S.S.G. § 2K2.1(a)(4)(A). The district court agreed and sentenced Mr. O’Connor to 32 months in prison. On appeal, Mr. O’Connor argues his prior conviction for Hobbs Act robbery is not a “crime of violence” under the Guidelines. We agree. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we vacate his sentence and remand for resentencing. I. BACKGROUND Mr. O’Connor pled guilty to being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1), without the benefit of a plea agreement. The Presentence Investigation Report (“PSR”) determined Mr. O’Connor’s base offense level was 20 based on U.S.S.G. § 2K2.1(a)(4)(A), which applies when a defendant’s instant offense is preceded by one felony conviction for a “crime of violence.”1 The PSR said Mr. O’Connor had sustained two felony convictions for: (1) Aiding and abetting in the interference of commerce by means of robbery, see 18 U.S.C. §§ 2(a), 1951(b)(1); and (2) Aiding and abetting in the brandishing of a firearm during and in relation to a crime of violence, see 18 U.S.C. §§ 2, 924(c)(1)(A)(ii). 1 This Guidelines provision also applies when a defendant has a prior felony conviction for a controlled substance offense, but no such offense is at issue here. 2 The statute underlying his first conviction—18 U.S.C. § 1951—is known as the “Hobbs Act.”2 Mr. O’Connor argued neither conviction triggered § 2K2.1(a)(4)(A) and that his base offense level, as prescribed by § 2K2.1(a)(6), should be 14—not 20. The Government responded that the PSR had correctly determined his base offense level. It argued his conviction for aiding and abetting a Hobbs Act robbery was a “crime of violence,” but it did not address his other prior conviction for brandishing a firearm. The district court concluded that Hobbs Act robbery was a crime of violence under § 2K2.1(a)(4)(A), and Mr. O’Connor’s base offense level ...

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