FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 21, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 20-3162
v. (D.C. No. 5:18-CR-40001-HLT-1)
(D. Kan.)
JOHN STEPHEN KISSELL,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.**
_________________________________
This matter is before the court on the parties’ Joint Motion to Vacate and Remand.
The parties jointly move this court to vacate Appellant John Stephen Kissell's
sentence in light of Borden v. United States, 2021 WL 2367312 (S. Ct. June 10,
2021) (holding that criminal offense that requires only a mens rea of recklessness
cannot count as a "violent felony" under the Armed Career Criminal Act), and to
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
Because this matter is being decided on a joint motion to vacate and remand
to the district court, the panel has determined unanimously that oral argument would
not materially assist in the determination of this appeal. See Fed. R. App. P. 34(f);
10th Cir. R. 34.1(G). The case is therefore submitted without oral argument.
remand to the district court for further proceedings. The parties agree that Borden
resolves this appeal in Mr. Kissell’s favor.
Upon consideration, the Joint Motion to Vacate and Remand is granted. This
matter is remanded with instructions to vacate Mr. Kissell’s sentence and conduct
further proceedings necessary to resentence him in accordance with Borden.
The Clerk is directed to issue the mandate forthwith.
Entered for the Court
Per Curiam
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