United States v. Wakinyan McArthur

United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-2300 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Wakinyan Wakan McArthur lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the District of Minnesota - St. Paul ____________ Submitted: July 30, 2019 Filed: August 12, 2019 [Unpublished] ____________ Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges. ____________ PER CURIAM. A jury convicted Wakinyan Wakan McArthur of conspiracy to participate in racketeering activity (Count 1); conspiracy to use and carry firearms during and in relation to a crime of violence (Count 2); conspiracy to distribute and possess with intent to distribute controlled substances (Count 7); and distribution of a controlled substance (Count 8). See 21 U.S.C. § 841(a), (b); 18 U.S.C. § 2. He also was convicted of two counts of using and carrying a firearm during and in relation to a crime of violence (Counts 10 and 11). See 18 U.S.C. § 924(c). Each of the § 924(c) counts corresponded to two separate acts undertaken as part of the racketeering conspiracy. For Count 10, the district court imposed a mandatory 60-month term. Id. § 924(c)(1). For Count 11, the district court imposed a 300-month consecutive sentence. In total, the district court sentenced McArthur to 516 months’ imprisonment. In his first appeal, McArthur challenged his convictions and sentences on the § 924(c) counts. We vacated McArthur’s conviction on Count 11,1 affirmed his remaining convictions, vacated his entire sentence, and remanded for resentencing on all the remaining counts under the “sentencing package doctrine.” See McArthur I, 850 F.3d at 943. During the pendency of his direct appeal, McArthur had filed a pro se petition under 18 U.S.C. § 2255 seeking to vacate his two § 924(c) convictions in light of the Supreme Court’s ruling in Johnson v. United States, 135 S. Ct. 2551 (2015) (holding as unconstitutionally vague the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), which defined “violent felony” to include an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another”). He argued that Johnson “extends to the residual clause in the definition of ‘crime of violence’ found in § 924(c)(3)(B).”2 Mem. Op. Den. § 2255 Mot. at 2, United States v. McArthur, No. 0:12-cr-00026-JRT-JSM (D. Minn. June 5, 2017), 1 “[T]he government . . . ask[ed] us to vacate one of McArthur’s convictions based on an internal Justice Department policy to refrain from pursuing multiple § 924(c) charges” “ar[ising] from one predicate offense.” United States v. McArthur (McArthur I), 850 F.3d 925, 940 (8th Cir. 2017). 2 Section 924(c)(3)(B) defines “crime of violence” as a felony offense “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” -2- ECF No. 1742. McArthur also argued “that after applying the categorical approach, his predicate offense—racketeering—does not qualify as a ‘crime of violence’ under the ‘force’ clause ...

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