United States v. Dashun Clark , 619 F. App'x 512 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0748n.06
No. 15-3284
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 13, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
DASHUN CLARK, ) OHIO
)
Defendant-Appellant. )
OPINION
BEFORE: SILER, GIBBONS, and ROGERS, Circuit Judges.
PER CURIAM. Dashun Clark appeals the 180-month sentence imposed following his
guilty plea to a charge of being a felon in possession of a firearm.
The district court sentenced Clark as an armed career criminal under 18 U.S.C. § 924(e)
because he had three prior convictions of violent felonies or serious drug offenses. Specifically,
Clark had been convicted of conspiracy to distribute cocaine base, aggravated burglary, and
failure to comply with an order of a police officer. Clark argued that the latter conviction should
not count as a violent felony, but the district court concluded that it did, relying on United States
v. Hockenberry, 730 F.3d 645, 670-71 (6th Cir. 2013), cert. denied, 134 S. Ct. 1044 (2014).
Accordingly, the district court sentenced Clark to the mandatory minimum sentence of
180 months.
Clark reasserts his argument on appeal, citing Johnson v. United States, 135 S. Ct. 2551(2015), which held that the “residual clause” of § 924(e) is unconstitutionally vague. The
No. 15-3284, United States v. Clark
government concedes that Johnson controls and that the sentence must be vacated and the case
remanded for resentencing to a prison term no greater than 120 months.
Under Johnson, Clark’s conviction of failure to comply with an order of a police officer
does not qualify as a predicate offense under the Armed Career Criminal Act. Accordingly, we
vacate Clark’s sentence and remand the case to the district court for resentencing in light of
Johnson.
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