Dale Olten, Sr. v. United States, 565 F. App'x 558

Olten was convicted of felon-in-possession of a firearm and possession of a stolen firearm, and was sentenced as an armed career criminal under the ACCA based in part on two California burglary convictions.
Olten challenged the ACCA enhancement via 28 U.S.C. § 2255, asserting I) ineffective assistance of counsel regarding the burglary classifications and II) that the sentence exceeded the statutory maximum.
The district court treated Olten’s California burglary convictions as violent felonies under the ACCA after applying an approach that looked to the underlying charging documents and relied on Painter (8th Cir. 2005).
On remand from the Supreme Court in light of Descamps v. United States, the court reconsidered whether the California § 459 burglary convictions were “generic burglary” and thus qualifying as violent felonies.
The court determined the California burglary convictions cannot be used to enhance under the ACCA because § 459 has a single, indivisible set of elements, but still denied § 2255 relief because the sentence could be reimposed without ACCA by consecutive terms under § 3584.
Concurrence by Judge Kelly agrees with the result but criticizes the speculative, non-hactual basis for relief if the district court’s actual sentencing decisions are not disturbed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Olten’s California burglary convictions are violent felonies under the ACCA after Descamps.	Olten's burglaries were not generic burglary and thus cannot support ACCA enhancement.	The California burglary convictions were properly treated as violent felonies under the ACCA.	California § 459 burglaries not violent felonies under ACCA.
Whether counsel was ineffective for not objecting to the burglary classification.	Counsel should have objected to the use of burglary convictions to enhance under ACCA.	At the time, settled law supported using burglary convictions as violent felonies; objection would be futile.	No ineffective-assistance relief for failing to object.
Whether Olten’s felon-in-possession sentence exceeded the statutory maximum overall.	The ACCA-based 235-month term exceeded the maximum for the felon-in-possession offense.	The sentence could be reimposed via consecutive terms under § 3584; relief not warranted.	Relief denied; illegal-sentence issue not established.

Descamps v. United States, 133 S. Ct. 2276 (2013) (limits application of the modified categorical approach when the crime has an indivisible set of elements)
Painter v. United States, 400 F.3d 1111 (8th Cir. 2005) (California burglary broader than generic burglary; based on charging document)
Sun Bear v. United States, 644 F.3d 700 (8th Cir. 2011) (en banc; discusses sentencing and finality concerns in ACCA context)
Hamberg v. United States, 675 F.3d 1170 (8th Cir. 2012) (counsel not ineffective for failing to anticipate future law developments)
Brown v. United States, 311 F.3d 875 (8th Cir. 2002) (Apprendi-type arguments and strategic decisions on timing of challenges)
Fields v. United States, 201 F.3d 1025 (8th Cir. 2000) (split authority among circuits on issues with no controlling circuit law)
Wajda v. United States, 64 F.3d 385 (8th Cir. 1995) (counsel not ineffective for not predicting future law developments)
Meirovitz v. United States, 688 F.3d 369 (8th Cir. 2012) (cautions against overreliance on sentencing categories for justice)
Diaz v. United States, 296 F.3d 680 (8th Cir. 2002) (consecutive sentences and maximums can affect review of multi-count sentences)
Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011) (analysis of whether miscarriages of justice occur at sentencing when multiple counts exist)