                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-4048
                         ___________________________

                                   Glenn H. Harlow

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeals from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                            Submitted: January 12, 2018
                               Filed: April 27, 2018
                                  [Unpublished]
                                  ____________

Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

       Glenn Harlow appeals the district court’s partial denial of his 28 U.S.C. § 2255
petition. In 2006, Harlow pleaded guilty to count one, being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1), and count two, failing to appear in
violation of 18 U.S.C. § 3146. A violation of § 922(g)(1) typically carries a
maximum sentence of 10 years’ imprisonment, but because the district court
concluded that Harlow qualified as an armed career criminal under the Armed Career
Criminal Act (“ACCA”), count one carried a minimum sentence of 15 years’
imprisonment. See 18 U.S.C. § 924(e). The second count, with an enhancement
under 18 U.S.C. § 3147, carried a maximum sentence of 20 years’ imprisonment to
be served consecutively to count one. See 18 U.S.C. § 3146. At the sentencing
hearing, the district court sentenced Harlow to 188 months’ imprisonment—180
months on count one and a consecutive 8 months on count two.

       In 2016, Harlow filed this § 2255 petition. He argued that because Johnson v.
United States, 135 S. Ct. 2551 (2015), invalidated the residual clause of the ACCA,
he no longer qualified as an armed career criminal. The Government agreed, but it
asked the district court to deny relief because Harlow’s sentence remained below the
statutory maximum for the two counts of conviction. The Government relied on two
cases. In Sun Bear v. United States, we held that an alleged sentencing guidelines
error did not present a cognizable § 2255 claim where the sentence did not exceed the
statutory maximum. 644 F.3d 700, 705 (8th Cir. 2011) (en banc). In the unpublished
Olten v. United States, we applied the Sun Bear doctrine in the ACCA context. 565
F. App’x 558, 561 (8th Cir. 2014) (per curiam).

       The same district court judge who sentenced Harlow decided the § 2255
petition. He agreed with the Government’s position and declined to reduce the term
of imprisonment based on Sun Bear and Olten, but he did reduce Harlow’s term of
supervised release from five years to three years so that it equaled the maximum term
of supervised release without the ACCA enhancement. The district court also added:
“In addition, and after reviewing the record, the Court once again finds that a 188
month total term of imprisonment is an appropriate and reasonable sentence
regardless of whether or not Movant qualifies for an enhancement under the ACCA.”

        Harlow argues that Sun Bear and Olten are distinguishable for two reasons.
First, he notes that while the petitioners in Sun Bear and Olten alleged a sentencing-

                                         -2-
guidelines and statutory error, his sentence violates the Constitution. The
Government concedes that Harlow’s status as an armed career criminal depended on
the residual clause of the ACCA, and under Johnson, “imposing an increased
sentence under the residual clause of the Armed Career Criminal Act violates the
Constitution’s guarantee of due process.” 135 S. Ct. at 2563. The constitutional
nature of the error, according to Harlow, thus renders the Sun Bear line of cases
inapplicable. Second, Harlow says that unlike in those cases, part of his sentence did
exceed the statutory maximum—the term of supervised release. He claims that the
Sun Bear doctrine applies only where the terms of imprisonment and supervised
release do not exceed the statutory maximum.

        The Government offers no response to these arguments. It comes closest when
it says that Sun Bear and Olten render Harlow’s sentence constitutional. But Harlow
raises an antecedent issue: does the Sun Bear doctrine even apply when a sentencing
error implicates the Constitution? Some district courts, for instance, have answered
in the negative. See, e.g., Jackson v. United States, No. 00-CR-0285 (LAK), 2017
WL 1184272, at *5 (S.D.N.Y. Mar. 29, 2017). As for Harlow’s argument related to
the term of supervised release, the Government’s brief does not address the issue. In
effect, the Government asks us to extend Sun Bear without even acknowledging that
an extension is what it seeks.1 The Government has failed to sufficiently respond to
Harlow’s arguments, and we decline to do so on its behalf. See Fed. R. App. P. 28(b);
United States v. Stuckey, 255 F.3d 528, 531 (8th Cir. 2001) (noting that “we regularly
decline to consider cursory or summary arguments that are unsupported by citations
to legal authorities”).




      1
        The Government also cites a variety of cases discussing “total sentencing
packages,” “technical” violations, and findings of harmless error on direct review.
These cases neither address the issues raised by Harlow nor provide an independent
basis for affirmance.

                                         -3-
        That leaves the question whether we should find the purported error harmless
and affirm because the district court wrote that it “once again finds . . . a 188 month
total term of imprisonment . . . an appropriate and reasonable sentence.” Because we
rejected a similar argument in a recent case, we think not. In Gray v. United States,
a § 2255 petitioner had been “convicted and sentenced under an incorrect statutory
subsection.” 833 F.3d 919, 922 (8th Cir. 2016). After denying Gray’s request to
withdraw his guilty plea, we addressed his argument that he should be resentenced
under the correct subsection. Id. at 924. We agreed with the argument, stating that
the “district court’s statement—made in a § 2255 proceeding—that it would have
imposed the same sentence under the correct statute does not avoid harm to Gray’s
substantial rights.” Id. We reasoned that the district court could not simply review
the record—the “affidavits, memoranda, or oral remarks” related to a different
subsection—and credibly assess Gray’s sentence. Id. That was true even though “the
same district court that originally sentenced him” presided over the § 2255
proceeding. Id. This logic applies here. Harlow’s indictment treated him as an
armed career criminal under § 924(e), and the other record materials reflect that
designation. The materials note his fifteen-year minimum sentence for count one and
a sentencing guidelines range increased due to the ACCA enhancement.2 The
Government offers no basis for departing from our decision in Gray, and we decline
to do so here.

      For the foregoing reasons, we reverse and remand for resentencing.
                      ______________________________




      2
      In fact, the judgment in the case still shows a fifteen-year sentence on count
one—a sentence in excess of the statutory maximum without the ACCA
enhancement. See 18 U.S.C. § 924(a)(2).

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