915 F.3d 579
8th Cir.2019Background
- In 2011 Lamarvin Darden was convicted of: possession with intent to distribute crack cocaine (21 U.S.C. § 841), being a felon in possession of a firearm (18 U.S.C. §§ 922(g), 924(e)), and unlawful user in possession of a firearm (18 U.S.C. § 922(g)(3)).
- The PSR classified Darden as an Armed Career Criminal (ACCA) and a Guidelines career offender based on multiple prior Missouri convictions, and the district court sentenced him to concurrent 200-month terms (drug and firearm counts).
- Darden filed a § 2255 motion alleging ineffective assistance for failure to seek consolidation/appeal; the government sought and the court ordered remand for amended judgment and resentencing proceedings; Darden pursued Johnson/Mathis-based challenges to his prior convictions.
- At a 2016 resentencing the district court reaffirmed Darden as an armed career criminal, relied on his Missouri attempted second-degree-assault convictions (charged as attempts against law enforcement officers) as ACCA predicates, and again imposed concurrent 200-month terms; Darden’s attorney did not appeal.
- Darden then filed a § 2255 motion claiming counsel was ineffective for failing to appeal; the district court vacated and reimposed the 200-month sentence in 2017 so Darden could appeal; the court stated it would have reduced the sentence but believed it lacked authority.
- On appeal Darden argued (1) the district court erred by not conducting a plenary resentencing under the sentencing-package doctrine, (2) his attempted-assault convictions are not ACCA violent felonies, (3) multiple 2004 assault convictions should be treated as a single continuous course of conduct, and (4) he was prejudiced by a change of counsel after remand.
Issues
| Issue | Darden's Argument | Government/District Court Argument | Held |
|---|---|---|---|
| Whether the district court procedurally erred by reimposing the original sentence at the 2017 hearing instead of conducting a plenary resentencing (sentencing-package doctrine) | Court had authority to conduct a plenary resentencing and should have considered § 3553(a) factors to reduce sentence | Standard practice after counsel fails to appeal is to vacate and reimpose the sentence so defendant can appeal; district court followed precedent | No error; reimposition was proper and, if error, not plain given controlling precedent (affirmed) |
| Whether Darden’s Missouri attempted second-degree-assault convictions qualify as ACCA violent felonies | Johnson/Mathis render these convictions non-violent felonies | Missouri attempted-assault statutes and charging documents match the elements of a generic violent felony; Alexander and follow-on Eighth Circuit precedent control | Held they are violent felonies under ACCA; Alexander and Minnis control (affirmed) |
| Whether multiple 2004 second-degree-assault convictions should be treated as one continuous course of conduct (reducing predicate count) | The 2004 convictions arose from a continuous course and should be merged into one predicate | Argument is procedurally defaulted and, even if not, other separate predicates remain so ACCA still applies | Defaulted on appeal; alternatively, even merged Darden still has three predicates — ACCA remains satisfied |
| Whether Darden was prejudiced by a change of attorneys after remand | The post-remand attorney change prejudiced Darden’s ability to obtain relief | Argument raised for first time on appeal; court will not consider new arguments | Not considered on appeal (raised too late) |
Key Cases Cited
- United States v. Alexander, 809 F.3d 1029 (8th Cir. 2016) (Missouri attempted second-degree assault constitutes an attempted use of physical force for ACCA purposes)
- United States v. Minnis, 872 F.3d 889 (8th Cir. 2017) (reaffirming Alexander; attempted-assault under Missouri law is a crime of violence)
- United States v. King, 691 F.3d 939 (8th Cir. 2012) (when counsel fails to appeal, the remedy is to vacate and reimpose sentence so defendant may appeal)
- United States v. Prado, 204 F.3d 843 (8th Cir. 2000) (affirming reimposition of sentence after counsel’s failure to advise on appeal rights)
- United States v. Beers, 76 F.3d 204 (8th Cir. 1996) (same principle: vacate and reimpose sentence following counsel’s failure to appeal)
- Descamps v. United States, 570 U.S. 254 (2013) (framework for comparing elements of prior convictions to generic offenses)
- Shepard v. United States, 544 U.S. 13 (2005) (identifies the limited documents courts may consult under the modified categorical approach)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (addressing ACCA residual-clause vagueness)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (limits on using divisible statutes and the modified categorical approach)