UNITED STATES v. WEBSTER (2019)

[Unpublished]

Vernon Webster pleaded guilty to being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), and he received an enhanced sentence as an armed career criminal, see id. § 924(e). We affirmed his sentence, despite his argument that his three prior Wisconsin convictions for burglary under Wis. Stat. § 943.10(1m) did not qualify as violent felonies under the Armed Career Criminal Act (“ACCA”), on the authority of United States v. Lamb, 847 F.3d 928 (8th Cir. 2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 1438, 200 L.Ed.2d 720 (2018), in which we held that an identical burglary conviction qualified as a violent felony under the ACCA. See United States v. Webster, 730 F. App'x 396 (8th Cir. 2018) (per curiam). Webster then petitioned the Supreme Court for a writ of certiorari, which granted it, vacated our judgment, and remanded the case to us with instructions to reconsider the matter in light of United States v. Franklin, 2019 WI 64, 387 Wis. 2d 259, 928 N.W.2d 545. See Webster v. United States, 589 U.S. ––––, 140 S.Ct. 102, ––– L.Ed.2d –––– (2019).

The parties agree, as we have already recognized, that Lamb is no longer good law following Franklin. See United States v. Holston, 773 F. App'x 336, 337 (8th Cir. 2019) (per curiam). In light of Franklin, they also agree that the Wisconsin burglary statute under which Webster was convicted is broader than generic burglary under the ACCA. Thus, these convictions “do not qualify as violent felonies under the ACCA.” See id. The Government “agrees that the case should be remanded to the district court for resentencing” without the ACCA enhancement.

Accordingly, we vacate Webster’s sentence and remand for resentencing without application of the ACCA.

United States v. Holston is an unpublished opinion that is not controlling precedent, and I believe it was wrongly decided. However, as the government agrees this case should be remanded for resentencing, I concur.

PER CURIAM.