United States v. Theola Blackmon

1The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2545
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
John Thomas Olson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 12, 2010
Filed: April 14, 2010
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Before RILEY, 1 Chief Judge, BRIGHT, and WOLLMAN, Circuit Judges.
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PER CURIAM.
John Thomas Olson appeals his sentence, contending that his two previous
Minnesota convictions for fleeing a peace officer in a motor vehicle do not constitute
crimes of violence and that the district court therefore erred when it sentenced him as
a career offender.
Olson pleaded guilty to conspiracy to distribute and possess with intent to
distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),

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841(b)(1)(A), and 846, and to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). At sentencing, the district court determined that Olson’s two
convictions for fleeing a peace officer in a motor vehicle, in violation of Minnesota
Statutes § 609.487 subdivision 3, constituted crimes of violence under the United
States Sentencing Guidelines Manual (U.S.S.G.). This determination caused Olson
to be classified as a career offender, and it increased his base offense level for the
firearm conviction, his total offense level, and his criminal history category, resulting
in a guidelines range of 188 to 235 months’ imprisonment. After taking into account
Olson’s trial testimony against a co-defendant, the district court imposed a 100-month
sentence on the drug charge and a concurrent sixty-month sentence on the firearm
charge.
After Olson was sentenced, this court issued its opinion in United States v.
Tyler, 580 F.3d 722 (8th Cir. 2009), holding that the crime of fleeing a peace officer
in a motor vehicle, in violation of Minnesota Statutes § 609.487 subdivision 3, does
not constitute a “crime of violence” under the sentencing guidelines. Id. at 726. Thus,
Olson’s convictions for fleeing cannot serve as the basis for a greater base offense
level for the firearm conviction under U.S.S.G. § 2K2.1(a)(2) or to classify him as a
career offender under U.S.S.G. § 4B1.1. Although Olson was sentenced below the
guidelines range, we cannot discern what his sentence would have been had the
guidelines range been properly calculated. Accordingly, Olson’s sentence is vacated,
and the case is remanded for resentencing on the record already before the district
court.
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