                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2159
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
James Daryl Heikes,                    *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: January 17, 2008
                                Filed: May 15, 2008
                                 ___________

Before BYE, BEAM and GRUENDER, Circuit Judges.
                          ___________

BYE, Circuit Judge.

       James Daryl Heikes appeals his enhanced fifteen-year sentence, imposed by the
district court after finding he was an armed career criminal under 18 U.S.C.
§ 924(e)(1) (2000 ed., Supp. V). We vacate the sentence because of Begay v. United
States, No. 06-11543, 2008 WL 1733270 (April 16, 2008), and are required to remand
for resentencing.
                                           I

       On June 14, 2005, Heikes was charged in a three count indictment: one count
of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2); one count of being a drug user in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(3) and 924(a)(2); and one count of possession of a firearm following
a misdemeanor conviction of domestic violence in violation of 18 U.S.C. §§ 922(g)(9)
and 924(a)(2). The offenses all occurred on March 13, 2005. Pursuant to a plea
agreement, he pleaded guilty to Count 2, being a drug user in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).

       Ordinarily, an offender convicted of being a felon in possession of a firearm
faces a maximum prison term of ten years. § 924(a)(2). The Armed Career Criminal
Act, however, imposes a more stringent mandatory fifteen year minimum prison term
upon felons who unlawfully possess a firearm in violation of § 922(g), and who also
have three or more previous convictions for certain drug crimes or "violent felon[ies]."
§ 924(e)(1).

       Heikes's criminal history includes three prior felony convictions for operating
a motor vehicle while intoxicated (DWI) and one misdemeanor domestic abuse
assault. For a brief period of time between February 4, 2005, and April 21, 2005, the
law in this Circuit was a felony DWI was not a "crime of violence" under the Career
Offender guideline U.S.S.G. § 4B1.1, United States v. Walker, 393 F.3d 819, 828 (8th
Cir. 2005), rejected en banc by United States v. McCall, 439 F.3d 967 (8th Cir. 2006)
(McCall II), or a "violent felony" for purposes of the sentencing enhancements
imposed by the Armed Career Criminal Act, United States v. McCall, 397 F.3d 1028,
1031 (8th Cir. 2005) (McCall I), vacated on April 21, 2005, rev'd en banc, 439 F.3d
967 (8th Cir. 2006), overruled by Begay v. United States, No. 06-11543, 2008 WL
1733270 (April 16, 2008). Heikes's offense conduct occurred during this period on
March 13, 2005, eight days before the government filed its motion for en banc

                                          -2-
rehearing of the McCall I case. On March 15, 2006, in McCall II, our en banc court
held a DWI is a violent felony for purposes of the Armed Career Criminal Act. 439
F.3d at 972, 974.

       Heikes's plea agreement stated his sentence was solely within the discretion of
the district court and could be based on his qualification for application of the armed
career criminal guideline. The district court applied the armed career criminal
guideline and sentenced him to the statutory minimum of fifteen years imprisonment.
The plea agreement contains a limited waiver of Heikes's right to appeal, and was
modified by agreement of the parties on the record at the plea hearing to allow for
appeal of an illegal or unreasonable sentence.

                                            II

       While this appeal was pending, the Supreme Court overruled our interpretation
of § 924(e)(1) and held driving under the influence of alcohol is not a violent felony
as defined in the Armed Career Criminal Act. Begay, 2008 WL at *2, *7. When the
Supreme Court changes the law while a defendant's case is pending on appeal, the
plain error principle applies. United States v. Pirani, 406 F.3d 543, 549 (8th Cir.
2005) (en banc) (citing Johnson v. United States, 520 U.S. 461, 467-68 (1997)); Fed.
R. Crim. Proc. 52(b). Under Federal Rule of Criminal Procedure 52(b), an appellate
court may exercise its discretion to correct an error which is plain and affects
substantial rights if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Johnson, 520 U.S. at 466-67.

       We hold the Supreme Court's decision in Begay entitles Heikes to plain error
relief because his three DWI convictions do not qualify as violent felonies under the
Armed Career Criminal Act. Begay, 2008 WL at *2, *7. Heikes is not subject to the
penalties of § 924(e)(1) and the district court plainly erred by imposing such penalties
upon him. This error affected his substantial rights by dramatically increasing his

                                           -3-
advisory sentencing guidelines range and by further subjecting him to a mandatory
minimum sentence of fifteen years imprisonment, five years in excess of the statutory
maximum sentence for his crime. See United States v. Brandon, Nos. 07-1913, 07-
2031, 2008 WL 918715 at *8 (8th Cir. April 7, 2008) ("Substantial rights are affected
if [defendant] would have received a more favorable sentence absent the error.");
United States v. Burnette, 518 F.3d 942, 947 (8th Cir. 2008) ("In sentencing, an error
is prejudicial if there is a reasonable probability the defendant would have received
a lighter sentence but for the error.").1

                                           III

      Accordingly, we vacate Heikes's sentence and remand to the district court for
resentencing without application of the Career Offender guideline, §4B1.1, or the
sentencing enhancements imposed by the Armed Career Criminal Act, § 924(e)(1).
                      ______________________________




      1
       Heikes argues he was denied due process fair warning that his felony DWI
convictions would make him an armed career criminal and elevate his sentence five
years beyond the statutory maximum of ten years because at the time of his offense
conduct, the law in this Circuit was a felony DWI was not a "crime of violence" or a
"violent felony" for purposes of either the career offender or armed career criminal
sentencing enhancement. He further argues his counsel was constitutionally
ineffective for failing to raise the issue with the court. Heikes's due process arguments
are moot after the Supreme Court's recent decision in Begay.

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