Submitted: Sept. 23, 2013.
Louis Anthony Etoch, argued, West Helena, AR, for Plaintiff-Appellee.
Edward O. Walker, AUSA, argued, Little Rock, AR, for Defendant-Appellant.
Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
BYE, Circuit Judge.
Terys Boose appeals his 120 month sentence, imposed by the district court after finding Boose was a career offender under United States Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1(a). We vacate the sentence and remand for resentencing.
On August 2, 2011, Boose was charged with two counts of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). Pursuant to a plea agreement, Boose pleaded guilty to Count I of the indictment, and the district court dismissed Count II of the indictment.
At sentencing, the parties disputed whether Boose should be classified as a career offender under U.S.S.G. § 4B1.1. The district court determined Boose had two prior convictions which qualified as crimes of violence under U.S.S.G. § 4B1.1(b), including one for battery in the first degree under Arkansas Code Annotated § 5-13-201(a)(3), and therefore designated him as a career offender.
Designation as a career offender under § 4B1.1(b) increased Boose's offense level and criminal history category. The district court calculated the advisory guideline range at 188 to 235 months. The district court varied downward and sentenced Boose to 120 months of imprisonment.
Boose argues the district court erred in classifying him as a career offender under § 4B1.1(b), arguing his Arkansas conviction for battery in the first degree is not a qualifying crime of violence. We review classification as a career offender de novo. United States v. Sawyer, 588 F.3d 548, 555 (8th Cir.2009). In general, we use the categorical approach to determine whether an offense is a crime of violence. United States v. Bartel, 698 F.3d 658, 661 (8th Cir.2012). " [W]e look only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction." Sykes v. United States,
__, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011).
However, where, as here, the " state statute of conviction is overinclusive, meaning the statute proscribes conduct that is consistent with the generic federal offense as well as conduct that is not, we apply the modified categorical approach to determine which of several, separately described crimes encompassed by the statute formed the basis of the defendant's conviction." United States v. Roblero-Ramirez, 716 F.3d 1122, 1125 (8th Cir.2013). The district court properly ...