The opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11295 FEBRUARY 24, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00006-CR-1-CDL-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee-Cross-Appellant,
versus
RONNIE J. GREER,
Defendant-Appellant-Cross-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
_________________________
On Petition for Rehearing
(February 24, 2006)
Before BLACK, CARNES and PRYOR, Circuit Judges.
CARNES, Circuit Judge:
We vacate our prior opinion in this appeal, ___ F.3d ___ (11th Cir. Jan. 10,
2006), and substitute for it this one. In all other respects the appellant’s petition for
a rehearing, insofar as it is addressed to the panel, is denied.
The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), provides a
minimum mandatory sentence of fifteen years for anyone who violates 18 U.S.C. §
922(g) after three convictions for a violent felony or a serious drug offense. In this
case the jury convicted Ronnie J. Greer of violating 18 U.S.C. § 922(g)(1), and it
also found that he had been convicted of at least one of the three previous felonies
listed in the indictment. Those three listed state court felony convictions were for
three separately committed offenses of terroristic threats in violation of Ga. Code
Ann. § 16-11-37(a) (2003). There is no dispute that certified copies of state court
documents evidencing those convictions, which were introduced without objection
at trial, proved the three prior convictions.
The district court nonetheless refused to impose the minimum mandatory
sentence on Greer because the jury had not determined—and it was never asked to
determine—whether Greer’s three prior convictions were for violent felony crimes.
The district court believed that United States v. Booker, 543 U.S. 220, 125 S. Ct.
738 (2005), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),
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require that the jury, and not the judge, find that a previous conviction was for a
violent crime for ACCA purposes. As a result of that belief, the district court
imposed a sentence of only 78 months, instead of the 180 months mandated by the
ACCA. Greer has appealed his conviction, and the government has cross-appealed
the 78-month sentence and the Booker ruling underlying it.
I.
On July 6, 2002, a five-year-old boy, who was outside with his sister playing
on a utility trailer was killed when a pipe bomb that had been stored in a box on the
trailer exploded. Greer’s residence was next door, he had been overheard in the
past talking about “blowing people up,” and he was a former employee of a
business that used pipes consistent with the type used in the explosive device. He
quickly became a suspect. Three days after the fatal explosion federal and state
law enforcement officers searched Greer’s residence pursuant to a federal search
warrant. They did not find evidence that would support charging him in
connection with the bomb, but they did find live ammunition in his house,
including one pistol cartridge, two rifle cartridges, and a shotgun shell, all in plain
view on a table just inside the front door.
No guns were found in the house, but the ammunition was enough to charge
Greer with violation of 18 U.S.C. § 922(g)(1), which prohibits a felon from
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possessing ammunition. To establish the “felon” part of the charge, the indictment
alleged that Greer had three prior felony convictions for making terroristic threats.
It also charged that the provisions of 18 U.S.C. § 924(e)(1) were applicable,
subjecting Greer to a fifteen-year minimum mandatory sentence upon conviction.
At trial, Jay Bagwell, who is a special agent for the Bureau of Alcohol,
Tobacco, Firearms and Explosives, and David Smith, who is an agent for the
Georgia Bureau of Investigation, testified about participating in the search of
Greer’s residence. They told the jury that four live rounds of ammunition, which
had traveled in interstate commerce, were found on a table inside the house.
Although Greer had not been at the house when it was searched, the agents
described documents and other items they found in the house that indicated Greer
lived there: mail; bills; letters Greer had written and signed; and a lot of notebooks
he had compiled. Some of the documents had recent dates on them. The agents
also told of signs—such as a well-stocked kitchen and toiletries in the
bathroom—indicating that the house was occupied.
Brad Donnelly, another ATF agent, testified that Greer had been convicted
in the state courts of Georgia three times for the felony of “terroristic threats.”
Those three separate convictions occurred in 1989, 1993, and 2000. Although that
state crime carries the possibility of years in prison, Greer received probation each
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time.
After the government had presented its case in chief, Greer’s counsel failed
to move for a judgment of acquittal. Greer then testified as the only witness in his
defense. He admitted living in Cusseta, Georgia, at the residence that was
searched, and said that he had lived there since 1988. Greer admitted knowing that
ammunition was on the table. He first said that the bullets the agents found were
not at the house when he moved in four years before the search “unless they were
on the outside of the house,” but then said that “they could have been [sic] when I
moved into the house, the bullets were there.” In any event, he acknowledged
knowing the ammunition was there. The defense called no other witnesses.
The jury was instructed that it could convict Greer only if it found beyond a
reasonable doubt that he had knowingly possessed ammunition which had been
shipped or transported in interstate commerce, and before he possessed the
ammunition he had been convicted of a crime punishable by imprisonment for a
term in excess of one year. The jury found Greer guilty as charged.
As we have mentioned, the district court determined that the ACCA
minimum mandatory sentence of fifteen years could not be applied in this case in
light of the Booker decision. Having freed itself from the strictures of the ACCA,
the court calculated the guideline range to be 63–78 months imprisonment and
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sentenced Greer to 78 months.
II.
Greer raises several contentions against his conviction. First, he asserts that
the government failed to prove beyond a reasonable doubt that he possessed the
ammunition found in his home. We review the sufficiency of the evidence de
novo, viewing the evidence and making all reasonable inferences in favor of the
verdict. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005).
When a defendant does not move for a judgment of acquittal at the close of
the evidence, he must shoulder a somewhat heavier burden: we will reverse the
conviction only where doing so is necessary to prevent a manifest miscarriage of
justice. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). “This
standard requires the appellate court to find that the evidence on a key element of
the offense is so tenuous that a conviction would be shocking.” Id. Greer did not
move for a judgment of acquittal, but we will put that failure aside here because it
does not matter. Even if he had moved for a judgment of acquittal, the result of
this appeal would be the same.
The only element of the crime defined in 18 U.S.C. § 922(g)(1) that Greer
argues was not proven beyond a reasonable doubt is knowing possession of the
ammunition. See generally United States v. Wright, 392 F.3d 1269, 1273 (11th
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Cir. 2004), cert. denied, 125 S. Ct. 1751 (2005). The government need not prove
actual possession in order to establish knowing possession; it need only show
constructive possession through direct or circumstantial evidence. Id.
Constructive possession exists when the defendant exercises ownership, dominion,
or control over the item or has the power and intent to exercise dominion or
control. United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir. 2004), cert. denied,
125 S. Ct. 324 (2004).
The ammunition was found in plain view on a table just inside the front
door. Even before Greer testified in the defense part of the case, there was
sufficient evidence that he lived in the house and had been there not long before
the search. There was no evidence in either the government’s case or the defense
case that anyone else lived in the house with Greer. His argument that the jury
could not reasonably find beyond a reasonable doubt from this evidence that he
knowingly possessed the ammunition is frivolous.
Greer also contends that the government failed to prove that venue was
proper in the Columbus Division of the Middle District of Georgia. The
government did not put in evidence that Cusseta, Georgia, where Greer lived and
the ammunition was found, was in the territorial jurisdiction of the district court;
there was no stipulation to venue; and there was no discussion of whether judicial
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notice could be taken of the necessary facts relating to venue. The venue issue
simply was not raised at trial.
A defendant has a Sixth Amendment right to be tried in the district in which
he committed the offense. United States v. Roberts, 308 F.3d 1147, 1151 (11th
Cir. 2002). However, a defendant waives an objection to venue by failing to raise
it before trial, subject to the exception that objecting at the close of evidence is
soon enough if the indictment alleges an incorrect venue and the defendant was not
aware of that defect until the government presented its case. Id. at 1151–52. Greer
did not raise an objection to venue at trial or at the close of evidence, and thus any
venue issue was waived.
Greer’s final contentions involve his trial counsel’s failure to move the
district court for a judgment of acquittal and failure to object on venue grounds.
He says that those failures deprived him of effective assistance of counsel.
Generally, we do not address ineffective assistance claims on direct appeal, except
in the rare instance when the record is sufficiently developed for us to do so.
United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). This is one
of those rare instances.
To prevail on a claim of ineffective assistance of counsel, Greer must prove:
(1) that his attorney’s performance fell below an objective standard of
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reasonableness, and (2) that he was thereby prejudiced, that is, there is a reasonable
probability that but for counsel’s deficient performance, the result of his trial
would have been different. Id. at 1337–38 (11th Cir. 2005) (citing Strickland v.
Washington, 466 U.S. 688, 104 S. Ct. 2052 (1984)). The prejudice component
disposes of both of Greer’s ineffectiveness claims.
As for the claim arising from his counsel’s failure to move for a judgment of
acquittal on the sufficiency of the evidence not relating to venue, it did not matter.
As we have already explained, the evidence the government presented during its
case was sufficient to convict Greer. His conviction would have been upheld even
if there had been a timely acquittal motion.
As for the claim arising from trial counsel’s failure to object on venue
grounds, “[t]he government must support its choice of venue only by a
preponderance of the evidence.” United States v. Smith, 918 F.2d 1551, 1557
(11th Cir. 1990) (internal quotation omitted). This burden can be met through
direct or circumstantial evidence and judicial notice can be used. United States v.
Males, 715 F.2d 568, 569–70, 570 n.2 (11th Cir. 1983) (holding that although there
was no direct testimony that the crime occurred in Dade County, Florida, venue
was established because there were sufficient references to the crime taking place
in Miami, and stating that this Court can take judicial notice of Miami’s location in
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Dade County). Law enforcement officers testified during the government’s case
that the search was conducted and the live ammunition was found at Greer’s house,
located at 380 Highway 520 in Cusseta, Georgia. We take judicial notice that
Cusseta, Georgia is the county seat of Chattahoochee County which is within the
Columbus Division of the Middle District of Georgia. See 28 U.S.C. § 90(b)(3);
Males, 715 F.2d at 570 n.2. Had Greer’s trial counsel raised a venue objection at
trial, the district court would have taken judicial notice of the same fact, and we
would have upheld its action in doing so. Greer was not prejudiced in the least by
his counsel’s failure to bring up venue. This ineffective assistance of counsel
claim, like Greer’s other one, fails.
That is the end of Greer’s appeal. We turn now to the government’s cross-
appeal.
III.
The government’s cross-appeal puts at issue the district court’s refusal to
impose the fifteen-year mandatory minimum sentence the Armed Career Criminal
Act, 18 U.S.C. § 924(e), provides. Pursuant to the ACCA, any defendant who is
convicted of violating § 922(g), including § 922(g)(1), as Greer was, who has three
previous convictions for a violent felony, must be sentenced to not less than fifteen
years. The term “violent felony” is defined in the ACCA as any crime that:
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(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another
18 U.S.C. § 924(e)(2)(B). Greer’s three previous convictions, each of which was
listed in the federal indictment in this case, were all for making terroristic threats in
violation of O.C.G.A. § 16-11-37. As the district court explained, that Georgia
statute prohibits both violent and non-violent behavior, so proof that a defendant
was convicted for violating the statute does not, without more, prove that he has
been convicted of a violent felony for ACCA purposes. United States v. Greer,
359 F. Supp. 2d 1376, 1380–81 (M.D. Ga. 2005).
There was, however, more in this case, the more being the indictments for
each of the three state court convictions. Those indictments, which were
introduced at the sentencing hearing, proved that Greer’s three prior convictions
were crimes of violence under the ACCA. There was no real dispute about that.
As the district court stated during the sentencing hearing, “if you review the
indictment and the convictions, it clearly indicates that the previous acts were
crimes of violence. That’s clearly indicated.” Sentencing Tr. at 14. The district
court explained that “the court of appeals will have this before them, so they’ll see
it clearly indicates it was a crime of violence.” Id. at 14–15. Greer did not question
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the accuracy of the district court’s characterization of the indictments at the
sentencing hearing and does not question it now.
Although the district court recognized and even emphasized that the
indictments underlying Greer’s three prior convictions indisputably established
that they were for violent felonies within the meaning of the ACCA, it declined to
apply the enhanced penalties required by the statute. See 18 U.S.C. § 924(e)(1).
The court did so because it believed that if anything beyond the conviction itself
and the statutory elements had to be considered in making the violent crime
finding, the Constitution requires that the jury make it. The court was mistaken in
that belief.
The controlling Supreme Court precedent is the pre-Booker and pre-
Apprendi decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219 (1998). In that case the Court held that the factual issue of whether a
defendant has been convicted of an “aggravated felony” for 8 U.S.C. § 1326(b)(2)
enhancement purposes is not to be treated as an element of the offense for
constitutional purposes, and as a result the prior conviction is not required to be
alleged in the indictment. Id. at 226, 118 S. Ct. at 1222 (“[T]he subsection is a
penalty provision, which simply authorizes a court to increase the sentence for a
recidivist.”). The district court’s decision cannot be reconciled with the full force
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of Almendarez-Torres. As we have said several times, unless and until the
Supreme Court specifically overrules Almendarez-Torres, we will continue to
follow it. E.g., United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th
Cir. 2005) (“[T]he Supreme Court has not explicitly overruled Almendarez-Torres.
As a result, we must follow Almendarez-Torres.”); United States v.
Guadamuz-Solis, 232 F.3d 1363 (11th Cir. 2000) (“Almendarez-Torres remains
the law until the Supreme Court determines that Almendarez-Torres is not
controlling precedent.”).
More than once we have specifically rejected the argument that Almendarez-
Torres was undermined by the Apprendi decision. See United States v. Marseille,
377 F.3d 1249, 1257–58 (11th Cir. 2004) (rejecting an Apprendi-based attack by a
defendant whose sentence was enhanced under the ACCA, U.S.S.G. §§ 4B1.1 and
4B1.4(a)); U.S. v. Miles, 290 F.3d 1341, 1348 (11th Cir. 2002) (rejecting an
Apprendi-based attack on life sentence imposed under the ACCA where the
indictment did not allege and jury did not find that the defendant had three prior
violent felony convictions).
Our decision in United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.
2005), is contrary to the implication of the district court’s ruling, which is that
Booker did what Apprendi did not—partially overrule the Almendarez-Torres
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decision. In Shelton, we said this:
Shelton first argues that the district court erred when it
enhanced his sentence based on a judicial fact-finding of drug quantity
and based on his prior convictions. We readily dispense with that
issue. The Supreme Court consistently has rejected Shelton's
argument that a district court errs when it considers prior convictions
in sentencing a defendant under the Guidelines. In Almendarez-Torres
v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350
(1998), the Supreme Court “held that the government need not allege
in its indictment and need not prove beyond a reasonable doubt that a
defendant had prior convictions for a district court to use those
convictions for purposes of enhancing a sentence.” United States v.
Marseille, 377 F.3d 1249, 1257 (11th Cir.2004) (citation omitted).
This conclusion was left undisturbed by Apprendi, Blakely, and
Booker.
Moreover, in Booker, the Supreme Court reaffirmed its holding
in Apprendi. See Booker, 125 S.Ct. at 756 (opinion of Stevens, J.)
(reaffirming that “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt” (emphasis added)). Thus, a district court does not err by
relying on prior convictions to enhance a defendant's sentence.
400 F.3d at 1329. In a footnote attached to that passage in Shelton, we cited the
Sixth Circuit’s decision in United States v. Barnett, 398 F.3d 516, 525 (6th Cir.
2005), which held that “there is no language in Booker suggesting that the
Supreme Court, as part of its remedial scheme adopted in that case, intended to
alter the exception to Apprendi allowing district courts to consider the fact and
nature of prior convictions, without submitting those issues to the jury.” See also
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United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005) (concluding that
Shepard v. United States, 543 U.S. ___, 125 S. Ct. 1254 (2005), “lends further
support to the rule that the sentencing court, not a jury, must determine whether
prior convictions qualify as violent felonies”).
To be fair, the district court’s decision in this case was issued before our
decision in Shelton. It also preceded our statement in United States v.
Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005), that “[p]ut another way,
because the prior-conviction exception remains undisturbed after Booker, a district
court does not err by relying on prior convictions to enhance a defendant's
sentence.” (footnote omitted). It came before we, in United States v. Gallegos-
Aguero, 409 F.3d 1274, 1277 (11th Cir. 2005), found “no merit in [the] argument
that the Sixth Amendment requires that a jury, not a judge, must determine whether
[a] prior conviction is within the category of offenses specified in [U.S.S.G.] §
2L1.2(b)(1)(A)(vii).” And it came before we specifically held in United States v.
Gibson, 434 F.3d 1234 (11th Cir. 2006), that the Sixth Amendment as interpreted
in Apprendi, Blakely, and Booker did not prevent a judge, even under a mandatory
guidelines system, from making the factfindings necessary to classify a prior
conviction as a crime of violence or controlled substance offense for purposes of
the career offender provisions of U.S.S.G. § 4B1.1(a).
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The district court thought that even if Almendarez-Torres still permits a
judge to determine “the existence of a prior conviction,” the principles of Apprendi
extended through Booker forbid a judge from determining “the factual nature of a
prior conviction,” 359 F. Supp. 2d at 1379–80, except to the extent he can infer it
from the fact of conviction read against the statutory elements of the prior crime.
That position is not justified in view of our decisions describing the non-effect of
Apprendi and Booker on the Almendarez-Torres rule. Nor is it required by the
language or reasoning of those three Supreme Court decisions or by the
constitutional principles underlying them.
To be sure, the Supreme Court has instructed us that in determining the
nature of a prior conviction for ACCA purposes the trial judge may not look
beyond the statutory elements, charging documents, any plea agreement and
colloquy or jury instructions, or comparable judicial record. Shepard v. United
States, 544 U.S. 13, 125 S. Ct. 1254, 1257, 1263 (2005). There is implicit in the
Shepard rule, however, a recognition that if the nature of the prior conviction can
be determined from those types of records, under existing law the trial judge may
make the determination. There would be no point in restricting the sources that a
judge may consider in reaching a finding if judges were barred from making it.
Shepard does not bar judges from finding whether prior convictions qualify for
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ACCA purposes; it restricts the sources or evidence that a judge (instead of a jury)
can consider in making that finding. In the present case, of course, there is no
Shepard problem because the violent nature of each prior conviction, as “violent”
is defined in the ACCA, can be determined from the face of the certified copy of
the conviction document read along with the indictment and in light of the
statutory elements of the offense.
The district court gave a lot of thought to this issue, and the opinion it
published is not without its persuasive points. Realistically viewed, however, the
district court’s conclusion is less an application of existing precedent than a
prediction of what the Supreme Court will hold when it chooses to address this
issue in the future. Taking the principles stated in Apprendi, Blakely, and Booker
and projecting them forward, the district court envisioned the overruling of at least
some of the Almendarez-Torres decision. That prediction probably is correct; the
Supreme Court may well overrule Almendarez-Torres. See Shepard v. United
States, 543 U.S. 13, ___, 125 S. Ct. 1254, 1264 (2005) (Thomas, J., concurring)
(counting noses to come up with a majority of justices ready to overrule the
Almendarez-Torres decision); cf. Bass v. Bd. of County Comm'rs, 256 F.3d 1095,
1115 (11th Cir. 2001) (“You don't need a weatherman to know which way the
wind blows.”) (quoting Bob Dylan, Subterranean Homesick Blues, on Bringing it
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All Back Home (Columbia 1965)).
The problem with lower courts basing decisions on predictions that the
Supreme Court will overturn one of its own decisions is that the Supreme Court
has repeatedly told us not to do it. Hohn v. United States, 524 U.S. 236, 252–53,
118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding precedent until we
see fit to reconsider them, regardless of whether subsequent cases have raised
doubts about their continuing vitality.”); Agostini v. Felton, 521 U.S. 203, 237,
117 S. Ct. 1997, 2017 (1997) (“We do not acknowledge, and we do not hold, that
other courts should conclude our more recent cases have, by implication, overruled
an earlier precedent.”); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 484, 109 S. Ct. 1917, 1921–25 (1989) (“If a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own decision.”).
We take that admonition seriously. See Eng’g Contractors Ass’n of S. Fla. Inc. v.
Metro. Dade County, 122 F.3d 895, 908 (11th Cir. 1997) (“Of course, we take that
admonition seriously.”); Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d
519, 525 (11th Cir. 1997); Scala v. City of Winter Park, 116 F.3d 1396, 1399 n.2
(11th Cir. 1997) (following an earlier Supreme Court decision even though later
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decisions of the Court had “cast some doubt” on it); Fla. League of Prof’l
Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996) (“We take this
admonition to heart, and we decline to take any step which might appear to
overrule [prior Supreme Court decisions].”). We have applied it a number of times
to this specific question. See, e.g., Gibson, 434 F.3d at 1246–47 (rejecting the
contention that we should act as though Almandarez-Torres is no longer good law,
and explaining that “[i]t is not given to us to overrule the decisions of the Supreme
Court.”); United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001) (“[W]e
are bound to follow Almendarez-Torres unless and until the Supreme Court itself
overrules that decision.”).
We need not reach the alternative argument of the government that, even if
Almendarez-Torres were overruled by the Supreme Court, the mandatory
minimum sentence for a defendant who is not an armed career criminal is 120
months. See 18 U.S.C. §§ 922(g)(1), 924(a)(2); Harris v. United States, 536 U.S.
545, 568, 122 S. Ct. 2406. 2420 (2002).
IV.
The conviction is AFFIRMED. The sentence is VACATED and the case is
REMANDED for resentencing consistent with this opinion.
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