United States v. James Lindquist

HEANEY, Circuit Judge,

concurring.

I concur in the majority opinion, but write separately on the issue of whether Lindquist’s criminal history includes two prior crimes of violence. The majority, bound by our precedent, finds that Lind-quist’s conviction for operating a motor vehicle without the owner’s consent is a crime of violence. I restate my view that our circuit “has far too broad a conception of what the guidelines mean by stating that violent crimes include ‘conduct that presents a serious potential risk of physical injury to another.’ ” United States v. Mohr, 407 F.3d 898, 904 (8th Cir.2005) (Heaney, J., concurring) (quoting USSG § 4B1.2(a)(2)).

The district court increased Lindquist’s base offense level because he had prior violent-crime convictions. Those Iowa state court convictions resulted from joyriding on an all-terrain vehicle before abandoning it in a field (operating a motor vehicle without the owner’s consent), and waiting in a car while Lindquist’s friend opened an unlocked pickup truck door and stole its stereo (third-degree burglary). It conflicts with the very concept of a crime of violence to include these offenses in that category. “Certainly, the risk of physical injury exists in nearly every felony. The guidelines, however, focus on whether the risk is a serious one, not just an abstract possibility.” Mohr, 407 F.3d at 904; see *758also United States v. Sun Bear, 307 F.3d 747, 755 (8th Cir.2002) (Melloy, J., dissenting) (“All felons fear apprehension in the midst of, and following, their criminal conduct, and all may act recklessly when attempting to evade capture.”).

The purpose of crimes-of-violence enhancements is to treat violent criminal history more seriously than non-violent criminal history. It is not hard to conceive scenarios in which non-violent felony crimes could become violent, but, in my view, we ought not trivialize this guideline section’s purpose by expanding the category too broadly. Here, the result is that James Lindquist’s sentence is increased substantially because of the “violent felony” of joyriding on a recreational vehicle.

The majority opinion remands Lind-quist’s case for resentencing due to an erroneous guidelines calculation, and I agree with that result. As the majority notes, the district court is now presented with the opportunity to resentence Lind-quist under the advisory guidelines regime. We are not presented with the issue of whether a guidelines sentence for Lindquist would be unreasonable.6 With the increased latitude Booker bestowed on a district court’s determination of the ultimate sentence, the district court in this case should consider whether a guidelines sentence would further the statutory sentencing goals of 18 U.S.C. § 3553(a).

. A panel of our court recently held that a guidelines sentence “is generally indicative of reasonableness.” United States v. Shannon, 414 F.3d 921, 924 (8th Cir.2005). I do not believe the appropriately calculated guidelines range is to be given any more weight than any other factor laid out in 18 U.S.C. § 3553(a). See United States v. Booker, - U.S. -, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005) (modifying the Federal Sentencing Act to require district courts to consult the guidelines as well as the other § 3553(a) factors). While we are not faced with the issue here, a defendant whose guidelines sentence was increased significantly solely due to the characterization of non-violent felonies as violent crimes could make a persuasive argument that a sentence within the guidelines was nonetheless unreasonable in view of § 3553(a)'s other factors.