United States v. James Boesen, Jr.

1The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2666
___________
United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Samuel Melbern Steward, aka *
Sam Steward, * [PUBLISHED]
*
Appellee. *
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Submitted: November 16, 2009
Filed: March 17, 2010
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Before MURPHY, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
The government appeals the district court's 1 determination that Samuel
Melbern Steward's prior Iowa conviction for operating a vehicle without the owner's
consent (OVWOC) does not qualify as a "crime of violence" under U.S.S.G. §
4B1.2(a). We affirm.

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I. Background
Steward was indicted for and pleaded guilty to one count of conspiracy to
distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846. At the time of his conviction, Steward had two prior felonies: an
OVWOC conviction, in violation of Iowa Code § 714.7, and a conviction for assault
with intent to inflict serious injury, in violation of Iowa Code § 708.2(1).
At the time of Steward's sentencing hearing, this court's precedent held that
OVWOC offenses were "crimes of violence" and "violent felonies" under U.S.S.G.
§ 4B1.2. See, e.g., United States v. Johnson, 417 F.3d 990 (8th Cir. 2005); United
States v. Sprouse, 394 F.3d 578 (8th Cir. 2005); United States v. Sun Bear, 307 F.3d
747 (8th Cir. 2002). At sentencing, the district court determined that Steward was a
career offender under U.S.S.G. §§ 4B1.1 and 4B1.2 based on his convictions for
OVWOC and assault with intent to inflict serious injury and calculated Steward's
Guidelines range as 292 to 365 months' imprisonment.
Prior to sentencing, Steward had moved for a downward departure from the
career offender guideline and a variance under 18 U.S.C. § 3553(a) from the
Guidelines based on, inter alia, the disparate impact of the 100-to-1 crack-to-powder
cocaine disparity and the disparity between his sentence and that of his "kingpin"
coconspirator. The district court rejected the argument that an unwarranted disparity
existed between Steward's sentence and his coconspirator, finding that the
coconspirator's substantial assistance was "the reason for the dramatic differences in
sentences." As for the remainder of Steward's arguments, the district court examined
this court's precedent and concluded that such precedent justified only a "minor
variance given the record that ha[d] been established by the defendant . . . specifically
the nature and characteristics of the defendant referred to at page 15 of defendant's
brief . . . ." Applying the "minor variance," the district court sentenced Steward to 260
months' imprisonment.

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Steward appealed his sentence and, while his appeal was pending, the Supreme
Court decided Kimbrough v. United States, 552 U.S. 85 (2007), and Gall v. United
States, 552 U.S. 38 (2007). This court vacated Steward's sentence and remanded to the
district court for resentencing in light of Kimbrough and Gall.
After this court's remand to the district court but before Steward's resentencing,
the Supreme Court decided Begay v. United States,553 U.S. 137 (2008), holding that
the New Mexico felony offense of driving under the influence of alcohol is not a
"violent felony" within the meaning of 18 U.S.C. § 924(e)(1). In light of Begay,
Steward filed a sentencing memorandum prior to his resentencing, arguing that the
Begay analysis controlled and that his OVWOC conviction no longer qualified as a
career offender predicate offense.
At the resentencing hearing, the district court identified the "first issue" as
whether the "advisory guideline applies in the case. To do that I have to determine the
application of the Begay, B-E-G-A-Y, case and whether or not Mr. Steward is a career
offender." The government agreed that this was the issue. The court ruled that "the
Begay case makes the predicate offense [of OVWOC] inapplicable" based on its
understanding of Begay, which was "[t]hat the Supreme Court has now a categorical
approach to what's a violent felony for purposes of interpretation of the career
offender." The district court then found that the appropriate Guidelines range was 168
to 210 months' imprisonment and sentenced Steward to 188 months' imprisonment.
The district court did not discuss any further departure.
II. Discussion
The government appeals, arguing that the district court (1) violated this court's
mandate directing the district court to resentence Steward in light of Kimbrough and
Gall when it considered Begay and (2) erred in determining that the OVWOC offense
does not qualify as a "crime of violence" under U.S.S.G. § 4B1.2(a).

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A. Mandate
The government argues that this court's mandate limited the district court's
resentencing issues to the Supreme Court's decisions in Gall and Kimbrough and that
the district court had no authority to go beyond the scope of the mandate in
resentencing Steward when it considered Begay.
In response, Steward argues that the district court was required to apply Begay,
as Begay was decided between the issuance of this court's mandate and his
resentencing.
Although the government is correct that "[w]here a remand is limited to the
resolution of specific issues, those issues outside the scope of the remand are generally
not available for consideration," United States v. Walterman, 408 F.3d 1084, 1085
(8th Cir. 2005), such a rule should not "apply when the earlier panel decision is cast
into doubt by a decision of the Supreme Court." United States v. Williams, 537 F.3d
969, 975 (8th Cir. 2008) (explaining that the general rule that one panel should not
overrule another panel does not apply when an intervening Supreme Court decision
is handed down). Therefore, we hold that the district court correctly considered and
applied intervening Supreme Court precedent.
B. Crime of Violence
The government also asserts that the OVWOC offense under Iowa law is a
"crime of violence" within the meaning of U.S.S.G. § 4B1.2(a).
In United States v. Lindquist, we expressly held that a prior Iowa
conviction for operating a vehicle without the owner's consent
constituted a "crime of violence" for purposes of § 2K2.1(a). 421 F.3d
751, 753–55 (8th Cir. 2005). Subsequently, the Supreme Court issued its
decision in Begay v. United States, holding that to be considered a
"violent felony" under the Armed Career Criminal Act, the crime must
be similar in kind to the example crimes listed in the statute. __U.S.__,

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128 S. Ct. 1581, 1583, 1585–86, 170 L. Ed.2d 490 (2008). In United
States v. Williams, we held that, in light of Begay, the Missouri offense
of auto theft without consent should no longer be considered a crime of
violence under § 2K2.1. 537 F.3d 969, 975–76 (8th Cir. 2008).
United States v. Murueta-Espinosa, 325 F. App'x 468, 469 (8th Cir. 2009)
(unpublished per curiam). We applied the rationale of Williams in Mureta-Espinosa
in holding "that the Iowa offense of operating a vehicle without the owner's consent
is no longer a 'crime of violence' for purposes of § 2L1.2." Id. at 470. We explained
that
Iowa's statute for operating a vehicle without the owner's consent is
analogous to Missouri's auto theft without consent statute. Compare
Iowa Code § 714.7 ("Any person who shall take possession or control of
any . . . vehicle . . . without the consent of the owner of such, but without
the intent to permanently deprive the owner thereof . . . .") with Mo. Rev.
Stat. § 570.030 ("A person commits the crime of stealing if he or she
appropriates property . . . of another with the purpose to deprive him or
her thereof . . . without his or her consent . . . ."). Iowa's statute and the
Missouri statute discussed in Williams are sufficiently similar such that
the decision in Williams controls this case.
Id. at 469–70. We noted that "[t]he distinction between 'crime of violence' under
§ 2K2.1 and under § 2L1.2" was "immaterial" to our decision. Id. at 470 n.2.
Williams and Mureta-Espinosa are likewise controlling in the present case.
Although Williams involved § 2K2.1 and Mureta-Espinosa involved § 2L1.2, not
§ 4B1.2(a), we explained in Williams that "[t]he commentary to both § 2K2.1 and
§ 4B1.1 refer to § 4B1.2(a), which provides a definition of a 'crime of violence' that
is virtually identical to the definition of a 'violent felony' in the Armed Career
Criminal Act." 537 F.3d at 971. Furthermore, we stated that "[i]n construing whether
auto theft and auto tampering are crimes of violence, we look at what is commonly

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referred to as the 'otherwise' clause of 18 U.S.C. § 924(e)(2)(B)(ii) or U.S.S.G.
§ 4B1.2(a)(2)." Id. at 972.
Therefore, we hold that the Iowa offense of OVWOC is not a "crime of
violence" for purposes of § 4B1.2(a).
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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