United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1788
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Mark B. Davidson, *
* [PUBLISHED]
Appellant. *
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Submitted: December 12, 2007
Filed: December 30, 2008
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Before RILEY, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
In an opinion filed on June 6, 2008, we affirmed the judgment of the district
court, which found Davidson guilty of unlawful possession of a firearm as a felon and
sentenced him to 262 months’ imprisonment. United States v. Davidson, 527 F.3d
703 (8th Cir. 2008). Davidson then filed a petition for rehearing, arguing that in light
of intervening precedent, the offense of tampering with an automobile by operation
in Missouri is not a “crime of violence” for purposes of USSG § 4B1.2(a). As a
consequence, he contends, the applicable offense level under the advisory guidelines
for his offense of conviction should have been 33 rather than 34. See USSG
§ 4B1.4(b). With a reduced offense level, the advisory guideline range would have
been 235 to 293 months’ imprisonment, rather than 262 to 327 months’ imprisonment,
and Davidson argues that there is a reasonable probability that the district court would
have imposed a shorter term of imprisonment if the court had used the lower range as
a starting point for its analysis.
After this case was submitted, the Supreme Court decided Begay v. United
States, 128 S. Ct. 1581 (2008), which held that the offense of driving under the
influence in New Mexico was not a “violent felony” within the meaning of 18 U.S.C.
§ 924(e). After our opinion was filed in this case, another panel of this court, relying
on Begay, overruled circuit precedent and held that auto tampering by operation in
Missouri is not a crime of violence under USSG § 4B1.2. United States v. Williams,
537 F.3d 969, 974-75 (8th Cir.), reh’g denied, 546 F.3d 961 (8th Cir. 2008). In light
of this intervening decision, we grant Davidson’s petition for rehearing. See United
States v. Byers, 740 F.2d 1104, 1115 n.11 (D.C. Cir. 1984) (plurality opinion) (Scalia,
J.); id. at 1161 n.138 (Bazelon, J., dissenting); Lowry v. Bankers Life & Cas. Ret.
Plan, 871 F.2d 522, 523 n.1 (5th Cir. 1989) (per curiam); cf. United States v. Maynie,
257 F.3d 908, 908 n.1 (8th Cir. 2001) (allowing supplemental briefing after oral
argument in light of intervening precedent); United States v. Poulack, 236 F.3d 932,
935 (8th Cir. 2001) (allowing pre-argument supplemental briefing based on
intervening precedent).
Under current law, it was plain error for the district court to conclude that
Davidson’s commission of tampering by operation was a crime of violence. There is
a reasonable probability (though not a certainty) that a reduced advisory range would
have influenced the district court to impose a more lenient sentence, given that the
advisory range remains a “starting point and the initial benchmark” in a sentencing
proceeding, and the use of an incorrect advisory range is a “significant procedural
error.” Gall v. United States, 128 S. Ct. 586, 596-97 (2007). Accordingly, we
conclude that relief is warranted under the standard for plain error review. See United
States v. Armstead, 546 F.3d 1097, 1112 (9th Cir. 2008); United States v. Lee, 288 F.
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App’x 264, 272 (6th Cir. 2008); see generally United States v. Olano, 507 U.S. 725
(1993); United States v. Pirani, 406 F.3d 543, 553-54 (8th Cir. 2005) (en banc). The
government contends that if Davidson had objected to the conclusion that tampering
by operation was a crime of violence, then it could have produced additional evidence
that Davidson was committing a different crime of violence. The district court may
consider any such evidence on remand. United States v. Cornelius, 968 F.2d 703, 705
(8th Cir. 1992).
This court’s judgment of June 6, 2008 is vacated. For the reasons set forth in
our prior opinion, Davidson’s conviction is affirmed, and we uphold the district
court’s decision to classify Davidson as an armed career criminal pursuant to 18
U.S.C. § 924(e). The prior opinion is vacated only to the extent that it affirmed the
district court’s judgment in its entirety; the opinion remains in place with respect to
all issues raised and decided therein. Because of the intervening decision in Williams,
we vacate Davidson’s sentence and remand for further proceedings consistent with
this opinion.
RILEY, Circuit Judge, concurring.
I continue to agree with Judge Colloton’s dissent from denial of rehearing en
banc in United States v. Williams, 546 F.3d 961 (8th Cir. 2008).
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