Submitted October 25, 2013.
Appeal from United States District Court for the District of Minnesota - St. Paul.
For United States of America, Plaintiff - Appellee: Jeffrey Marc Bryan, Assistant U.S. Attorney, Sabrina Ly, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN; Lisa D. Kirkpatrick, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Saint Paul, MN.
Calvin Bankhead, Defendant - Appellant, Pro se, Anoka, MN.
For Calvin Bankhead, Defendant - Appellant: Katherine M. Menendez, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Minneapolis, MN.
Before LOKEN, GRUENDER, and SHEPHERD, Circuit Judges. LOKEN, Circuit Judge, concurring.
GRUENDER, Circuit Judge.
Following his guilty plea to the charge of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g), Calvin Bankhead received a 180-month mandatory minimum sentence under the Armed Career Criminal Act (" ACCA" ). For the reasons set forth below, we reverse and remand for resentencing.
The written plea agreement, executed by Bankhead and the Government, specified a statutory maximum term of 120 months' imprisonment. However, the probation office prepared a presentence investigation report (" PSR" ) uncovering for the first time Bankhead's 1990 juvenile adjudication for armed robbery under Illinois law. The Illinois armed robbery statute provided in relevant part: " A person commits armed robbery when he or she violates Section 18-1 [establishing elements of unarmed robbery] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon." Ill. Rev. Stat., ch. 38, § 18-2 (Smith-Hurd 1990). According to the PSR, this juvenile adjudication was a predicate offense under the ACCA that, in combination with two other predicate offenses committed by Bankhead, compelled a mandatory minimum term of 180 months' imprisonment. 18 U.S.C. § 924(e)(1).
At sentencing, the district court offered to allow Bankhead to withdraw his guilty plea because, at the time of his plea, he had not been informed of the correct maximum sentence--now life--nor had he been informed of the fifteen-year mandatory minimum sentence. See Fed. R. Crim. P. 11(b)(1). Bankhead instead asserted he
should be sentenced according to the original plea agreement, which did not consider the juvenile adjudication or the ACCA for purposes of calculating the statutory maximum or mandatory minimum sentence. The district court, however, stated that the original plea agreement was " not on the table" given that the PSR had revealed facts about the juvenile adjudication that the court was " not going to turn away from." Bankhead nonetheless declined to withdraw his guilty plea. Accordingly, the district court conducted an evidentiary hearing to determine whether Bankhead's juvenile adjudication satisfied the ACCA requirement that an act of juvenile delinquency involve " the use or carrying of a firearm, knife, or destructive device" in order to trigger the ACCA's sentencing provisions. 18 U.S.C. § 924(e)(2)(B). Based on Illinois charging documents, the district court applied the modified categorical approach to find that Bankhead, as a juvenile, had carried a .38-caliber revolver during the commission of the armed robbery. The district court therefore imposed the ACCA mandatory minimum sentence of 180 months' imprisonment.
Bankhead's original brief challenged this sentence on two grounds. First, Bankhead argued the district court erroneously relied on sparse and unclear documentary records in determining that the juvenile adjudication triggered the fifteen-year mandatory minimum sentence. Second, Bankhead contended Rule 11 of the Federal Rules of Criminal Procedure was violated because he was not advised at the time of his plea that the ACCA maximum or mandatory minimum sentence would apply. Shortly thereafter, the United States Supreme Court held that sentencing courts cannot employ the modified categorical approach when the proposed predicate offense " has a single, indivisible set of elements." Descamps v. United States, 570 U.S., 133 S.Ct. 2276, 2282, 186 L.Ed.2d 438 (2013). Both Bankhead and the Government have agreed in subsequent supplemental briefing that, under Descamp ...