FILED
United States Court of Appeals
Tenth Circuit
May 30, 2008
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-5162
GEORGE LESTER MORRIS, JR., (D.C. No. 4:06-CR-00042-CVE)
(N. D. Oklahoma)
Defendant-Appellant.
ORDER ON REMAND FROM THE UNITED STATES SUPREME COURT
Before BRISCOE, HOLLOWAY, and O’BRIEN, Circuit Judges.
This case is before us on remand from the United States Supreme Court.
Defendant George Morris, Jr., pled guilty to one count of being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to a
mandatory minimum sentence of 180 months under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e). We affirmed Morris’s sentence on appeal. United States v.
Morris, 234 Fed. App’x 848 (10th Cir. 2007). Morris sought certiorari review from the
Supreme Court. On April 21, 2008, the Supreme Court granted Morris’s petition and
remanded the matter to us for further consideration in light of its decision in Begay v.
United States, 128 S.Ct. 1581 (2008).
In our prior Order and Judgment in this case, we rejected, on the basis of our
decision in United States v. Begay, 470 F.3d 964 (10th Cir. 2006), Morris’s argument that
the district court erred in treating his prior Oklahoma state conviction for “DUI Alcohol -
Second Offense” as a “violent felony” for purposes of the ACCA. Morris, 234 Fed.
App’x at 851-52. In Begay, “we held that a felony conviction under New Mexico state
law for driving while intoxicated . . . constituted a ‘violent felony’ for purposes of the
ACCA.” Morris, 234 Fed. App’x at 851. Because “the substance of” Morris’s “crime
[wa]s substantially similar, if not identical,” to the crime at issue in Begay, we concluded
we were bound to reach the same result in Morris’s appeal. Id. at 851-52.
Subsequent to our ruling in Morris’s appeal, the Supreme Court granted certiorari
review to the defendant in Begay and, in a decision issued on April 16, 2008, reversed our
decision in that case. More specifically, the Court held that the New Mexico felony
offense of driving under the influence of alcohol was not a “violent felony” within the
meaning of the ACCA. In so holding, the Court noted that the crimes expressly listed in
the ACCA’s definition of “violent felony” “all typically involve purposeful, ‘violent,’ and
‘aggressive’ conduct.” 128 S.Ct. at 1586. “[S]uch crimes,” the Court noted, “are
characteristic of the armed career criminal, the eponym of the statute.” Id. (internal
quotation marks omitted). In contrast, the Court concluded, “statutes that forbid driving
under the influence . . . typically do not insist on purposeful, violent and aggressive
conduct; rather, they are, or are most nearly comparable to, crimes that impose strict
liability, criminalizing conduct in respect to which the offender need not have had any
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criminal intent at all.” Id. at 1586-87. “When viewed in terms of the [ACCA]’s basic
purposes,” the Court held, “this distinction matters considerably.” Id. at 1587. That is, in
terms of “a prior crime’s relevance to the possibility of future danger with a gun,” “crimes
involving intentional or purposeful conduct . . . are different than DUI, a strict liability
crime.” Id. “In both instances,” the Court concluded, “the offender’s prior crimes reveal
a degree of callousness toward risk, but in the former instance they also show an
increased likelihood that the offender is the kind of person who might deliberately point
the gun and pull the trigger.” Id. Ultimately, the Court concluded, there was “no reason
to believe that Congress intended a 15-year mandatory prison term where that increased
likelihood does not exist.” Id.
In light of the Court’s decision in Begay, we conclude that Morris’s case must be
remanded to the district court with instructions to vacate Morris’s sentence and to
resentence him. That is, because Morris’s Oklahoma state conviction for “DUI Alcohol -
Second Offense” is essentially identical to the DUI conviction at issue in Begay, the
Court’s ruling in Begay makes clear that Morris’s Oklahoma DUI conviction “falls
outside the scope of the [ACCA]’s clause (ii) ‘violent felony’ definition.” Id. at 1588.
We therefore REMAND with directions to vacate Morris’s sentence and
resentence.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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