United States v. Adams, Dirk Alan , 289 F. App'x 952 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 14, 2008*
Decided August 22, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07-3679
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 03:07cr29
DIRK ALAN ADAMS,
Defendant-Appellant. Robert L. Miller, Jr.,
Chief Judge.
*
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. A PP.
P. 34(a)(2).
No. 07-3679 Page 2
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, 128 S. Ct. 1581 (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.