Opinion
No. 07-3679.
After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R.APP P. 34(a)(2).
Decided August 22, 2008.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 03:07cr29. Robert L. Miller, Jr., Chief Judge.
Donald J. Schmid, Office of the United States Attorney, South Bend, IN, Daniel L. Bella, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.
H. Jay Stevens, Indiana Federal Community Defenders, Inc., South Bend, IN, for Defendant-Appellant.
Before RICHARD D. CUDAHY, Circuit Judge, DANIEL A. MANION, Circuit Judge, JOHN DANIEL TINDER, Circuit Judge.
ORDER
Dirk Adams, a convicted felon and unlawful user of controlled substances, pleaded guilty to possession of firearms and ammunition. See 18 U.S.C. § 922(g)(1), (g)(3). The district court, over Adams's objection, set a base offense level of 20 on the assumption that his Indiana felony conviction for driving under the influence is a conviction for a "crime of violence." See U.S.S.G. § 2K2.1(a)(4)(A) cmt. n. 1. The court sentenced Adams to 46 months' imprisonment, the low end of the imprisonment range. Had the court sustained Adams's objection, his base offense level would have been 14, and his imprisonment range, 24 to 30 months. Adams now appeals.
During the pendency of this appeal, the Supreme Court overruled circuit precedent and held in Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), that drunk driving is not a "violent felony" as that term is defined in the Armed Career Criminal Act (ACCA), see 18 U.S.C. § 924(e)(2)(B). Cf. United States v. Sperberg, 432 F.3d 706, 708 (7th Cir. 2005) (holding that Wisconsin felony conviction for driving under the influence is a "violent felony" under the ACCA). Adams was not sentenced under the ACCA, but in Sperberg, 432 F.3d at 708, we concluded that "violent felony" and "crime of violence" have the same meaning, compare 18 U.S.C. § 924(e)(2)(B) with U.S.S.G. § 4B1.2(a), and even before Sperberg we had held that felony drunk driving is a crime of violence under the pertinent section of the guidelines, United States v. Rutherford, 54 F.3d 370, 376-77 (7th Cir. 1995). As the government anticipated, the Supreme Court's ruling in Begay abrogates our holding in Rutherford. We thus conclude that Adams must be resentenced. His sentence on each count is VACATED, and the case is REMANDED for resentencing.