                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4094
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Gary Allen Kachina

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                            Submitted: March 15, 2018
                              Filed: March 22, 2018
                                  [Unpublished]
                                  ____________

Before BENTON, MURPHY, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

       Gary Allen Kachina was convicted of a being a felon in possession of firearm,
in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to 220 months in prison.
On appeal, Kachina challenges the district court’s finding that his prior Minnesota
burglary convictions constituted violent felonies for purposes of the ACCA, and the
government agrees that under intervening case law, resentencing is warranted. See
United States v. McArthur, 850 F.3d 925 (8th Cir. 2017). Kachina also challenges his
conviction. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part,
reverses in part, and remands for further proceedings.

        Following review of the record and Kachina’s arguments on appeal, this court
affirms Kachina’s felon-in-possession conviction and concludes (1) Kachina failed
to establish a violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) the district
court did not abuse its discretion in determining that Kachina was competent to stand
trial; (3) there was no abuse of discretion in the denial of a self-defense instruction
in favor of a necessity instruction; (4) there was no abuse of discretion in the denial
of Kachina’s recusal motion; (5) Kachina did not request to proceed pro se at trial;
and (6) he has not shown he is missing any trial material to which he is entitled.

       This court agrees with the parties that Kachina’s sentence should be vacated.
After Kachina was sentenced, this court held that a Minnesota burglary conviction
premised on a statute not requiring the defendant to have formed the intent to commit
a crime at the time of his unlawful entry or remaining in a building does not qualify
as a violent felony for purposes of ACCA sentencing. See McArthur, 850 F.3d at
937-40; United States v. Crumble, 878 F.3d 656, 660-61 (8th Cir. 2018).

       This court affirms Kachina’s conviction, but vacates his sentence and remands
for further proceedings.
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