United States v. Morris

                                                                             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

                                             -2-
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

                                              -3-