United States v. Steven Cowan, 696 F.3d 706

Cowan pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
The district court applied an enhanced base offense level under § 2K2.1(a)(2) based on two prior felony convictions that qualify as crimes of violence under § 4B1.2(a)(2).
The statutory maximum was 10 years, but the parties disagreed on the sentencing guidelines base offense level.
At sentencing, the district court applied a base offense level of 24 under § 2K2.1(a)(2), yielding a guideline range of 70–87 months, and sentenced Cowan to 85 months plus supervised release.
Cowan appealed asserting the residual clause of § 4B1.2(a)(2) is unconstitutionally vague, raising this issue for the first time on appeal.
The court reviews for plain error because the argument was not raised at trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the § 4B1.2(a)(2) residual clause unconstitutionally vague?	Cowan contends the residual clause is vague and fails to provide notice of what constitutes a crime of violence.	The Government argues the residual clause is not unconstitutionally vague and is consistent with Supreme Court precedent in James and Sykes.	No plain error; residual clause not vague; affirmed

United States v. Pirani, 406 F.3d 543 (8th Cir. 2005) (plain-error standard governs unraised-argument review)
James v. United States, 550 U.S. 192 (2007) (residual clause not unconstitutionally vague)
Sykes v. United States, 131 S. Ct. 2267 (2011) (upholds congressional power to enact residual clause)
United States v. Childs, 403 F.3d 970 (8th Cir. 2005) (prior holdings on § 924(e) vagueness merit)
United States v. Rees, 447 F.3d 1128 (8th Cir. 2006) (waiver of arguments on § 4B1.2 vagueness)
United States v. Vincent, 575 F.3d 820 (8th Cir. 2009) (definition of crime of violence closely tracks ACCA)