                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 04-3753
                                 ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *       Appeal from the United States
      v.                                   *       District Court for the Northern
                                           *       District of Iowa.
James Lindquist,                           *
                                           *
             Appellant.                    *

                                 ________________

                              Submitted: June 22, 2005
                                  Filed: August 31, 2005
                                ________________

Before MELLOY, HEANEY and GRUENDER, Circuit Judges.
                       ________________

GRUENDER, Circuit Judge.

       James Lindquist pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g). He appeals the district court’s finding that his illegal
possession of a firearm occurred subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled substance offense. U.S.
Sentencing Guidelines Manual § 2K2.1(a)(2) (2003). He also appeals the district
court’s finding that he illegally possessed the firearm in connection with another
felony offense. U.S.S.G. § 2K2.1(b)(5). Finally, he challenges the propriety of his
sentence based on United States v. Booker, 125 S.Ct. 738 (2005). We affirm in part,
reverse in part, vacate the sentence and remand the case for resentencing.

I.    BACKGROUND

       James Lindquist pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court calculated
Lindquist’s base offense level to be 24 after it found that he had sustained at least two
prior felony convictions of either a crime of violence or a controlled substance
offense. U.S.S.G. § 2K2.1(a)(2). The first predicate conviction, which is
uncontested, was for a controlled substance offense. The second predicate conviction
was based alternatively on Lindquist’s Iowa conviction for operating a vehicle
without the owner’s consent or his Iowa conviction for third degree burglary of a
motor vehicle. Over Lindquist’s objection, the district court concluded that either of
these convictions sufficed for purposes of § 2K2.1(a).

       The district court then increased Lindquist’s offense level by four levels
because he illegally possessed the firearm in connection with another felony offense.
U.S.S.G. § 2K2.1(b)(5). Again over Lindquist’s objection, the district court found
that Lindquist possessed the firearm in connection with violating Iowa Code §
724.16, which prohibits acquiring ownership of a handgun without a valid annual
permit to acquire handguns. Finally, the district court reduced Lindquist’s offense
level by three levels because of his acceptance of responsibility. U.S.S.G. § 3E1.1.
With a total offense level of 25, a criminal history category of VI, and a statutory
maximum sentence of 10 years, the district court calculated a sentencing range of 110
to 120 months.1 The district court then sentenced Lindquist to 110 months’

      1
       The guidelines range for a defendant such as Lindquist with a total offense
level of 25 and a criminal history category of VI is 110 to 137 months. However,
because the statutory maximum sentence for a violation of § 922(g) is 10 years, 18
U.S.C. § 924(a)(2), Lindquist’s effective guidelines range was 110 to 120 months.
                                           -2-
imprisonment based on a mandatory application of the guidelines and announced an
alternative sentence of 110 months’ imprisonment based on its discretion after
considering the factors set forth in 18 U.S.C. § 3553(a). On appeal, Lindquist
challenges the district court’s categorization of operating a vehicle without the
owner’s consent and third degree burglary as crimes of violence for purposes of §
2K2.1(a)(2) and its application of the four-level enhancement under § 2K2.1(b)(5).
Lindquist also argues that his sentence violates the Sixth Amendment.

II.   DISCUSSION

       The proper application of the sentencing guidelines remains the critical starting
point for the imposition of a reasonable sentence based on the factors of 18 U.S.C. §
3553(a). United States v. Mashek, 406 F.3d 1012, 1016-17 & n.4 (8th Cir. 2005).
Under the first step of the Mashek two-step analysis, we continue to review a
challenge to the district court’s interpretation and application of the guidelines de
novo and its findings of facts for clear error. Id. at 1017. Our de novo review of the
application of the guidelines includes the legal question of whether a prior conviction
constitutes a crime of violence as defined by U.S.S.G. § 4B1.2. United States v.
Johnson, No. 04-1839, slip op. at 3 (8th Cir. Aug. 17, 2005). “If the sentence was
imposed as the result of an incorrect application of the guidelines, we will remand for
resentencing as required by 18 U.S.C. § 3742(f)(1) without reaching the
reasonableness of the resulting sentence in light of § 3553(a).” Mashek, 406 F.3d at
1017.

       Lindquist first challenges the district court’s calculation of his base offense
level pursuant to § 2K2.1(a)(2). A defendant sentenced under § 2K2.1 faces a base
offense level of 24 if he committed the instant offense subsequent to sustaining at
least two felony convictions of either a crime of violence or a controlled substance
offense. U.S.S.G. § 2K2.1(a)(2). Since Lindquist has a prior controlled substance
conviction, the issue on appeal is whether a conviction for either operating a vehicle

                                          -3-
without the owner’s consent or third degree burglary of a vehicle qualifies as a crime
of violence as defined by § 4B1.2. In light of the Court’s recent decision in Johnson,
which held that the Missouri offense of tampering with an automobile by operation
is a crime of violence, we affirm the district court’s holding that the Iowa aggravated
misdemeanor offense of operating an automobile without the owner’s consent
constitutes a crime of violence.2 See Johnson, No. 04-1839, slip op. at 7-11.

       The commentary to § 2K2.1 directs the district court to the definition of crime
of violence found in § 4B1.2. U.S.S.G. § 2K2.1 cmt. n.5. There, a prior conviction
may qualify as a crime of violence if it is an “offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that . . . involves conduct
that presents a serious potential risk of physical injury to another.” U.S.S.G. §
4B1.2(a)(2). The guidelines definition of “crime of violence” found in § 4B1.2 is
also viewed as interchangeable with the statutory definition of “violent felony” found
in 18 U.S.C. § 924(e). United States v. Johnson, 326 F.3d 934, 936 (8th Cir. 2003)
(“The definitions of ‘violent felony’ and ‘crime of violence’ are almost identical[.]”).
Therefore, in determining whether a defendant has committed a predicate crime of
violence for purposes of § 2K2.1(a), we are bound by our case law that is related to
both crimes of violence under § 4B1.2 and violent felonies under § 924(e). See
United States v. Sprouse, 394 F.3d 578, 580 (8th Cir. 2005) (“Because the definitions
of crime of violence and violent felony are identical, the same analysis applies in
determining whether [a defendant’s] convictions fall within the conduct defined.”).




      2
       For purposes of § 2K2.1, a felony conviction means “a prior adult federal or
state conviction for an offense punishable by death or imprisonment for a term
exceeding one year, regardless of whether such offense is specifically designated as
a felony and regardless of the actual sentence imposed.” U.S.S.G. § 2K2.1, cmt n.1.
Therefore, an aggravated misdemeanor, which is punishable for a term not exceeding
two years, Iowa Code § 903.1(b)(2), qualifies as a felony conviction.
                                          -4-
       The Missouri offense of tampering by operation, in violation of Mo. Rev. Stat.
§ 569.080.1(2), is a crime of violence as defined by § 4B1.2(a)(2). Johnson, No. 04-
1839, slip op. at 7-11. A person commits the offense of tampering by operation in the
first degree if he knowingly and unlawfully operates an automobile without the
consent of the owner. Mo. Rev. Stat. § 569.080.1(2). “The Missouri offenses of
‘tampering by operation’ [Mo. Rev. Stat. § 569.080.1(2)] and ‘automobile theft’ [Mo.
Rev. Stat. § 570.030.1] differ only with respect to the permanence of the offender’s
intent to deprive the owner of possession.” Johnson, No.04-1839, slip op. at 9-10;
see also Peiffer v. State, 88 S.W.3d 439, 444 (Mo. banc 2002) (per curiam) (holding
that tampering by possession is the lesser included offense of automobile theft for
purposes of double jeopardy). By comparison, a person commits the Iowa offense of
operating a vehicle without the owner’s consent when he “take[s] possession or
control of . . . any self-propelled vehicle . . . without the consent of the owner of such,
but without the intent to permanently deprive the owner thereof.” Iowa Code § 714.7;
see also State v. Hawkins, 203 N.W.2d 555 (Iowa 1973) (holding that the offense of
operating a vehicle without the owner’s consent is the lesser-included offense of
automobile theft). Though “tampering by operation” may not sound exactly like
“operating a vehicle without the owner’s consent,” the Missouri and Iowa offenses
proscribe the same conduct and contain essentially the same elements. Therefore,
because a violation of § 714.7 involves the same serious risks of physical injury
identified in Johnson and United States v. Sun Bear, 307 F.3d 747, 752-53 (8th Cir.
2002), we affirm the district court’s holding that operating a vehicle without the
owner’s consent is a crime of violence as defined by § 4B1.2. Accordingly, we need
not reach the question of whether third degree burglary is a crime of violence.3


      3
       Lindquist also argues that the district court violated the Sixth Amendment
when it found facts necessary to categorize § 714.7 as a crime of violence. We have
consistently rejected the applicability of Booker to the fact of a prior conviction, see,
e.g., United States v. Paz, 411 F.3d 906, 909 (8th Cir. 2005), and to the legal
determination of whether a prior conviction may be categorized as a crime of
violence, see, e.g., United States v. Johnson, 411 F.3d 928, 931-32 (8th Cir. 2005).
                                            -5-
       Lindquist also challenges the district court’s application of § 2K2.1(b)(5),
which requires a four-level enhancement “[i]f the defendant used or possessed any
firearm or ammunition in connection with another felony offense.” U.S.S.G. §
2K2.1(b)(5). He argues that his failure to obtain a valid annual permit to acquire
handguns, in violation of Iowa Code § 724.16, is an offense for “firearms possession
or trafficking” that is specifically excluded from the term “another felony offense” as
used in § 2K2.1(b)(5). See U.S.S.G. §2K2.1, cmt. n.18. We have previously
interpreted the exclusions to “another felony” narrowly, generally limiting them to
the types of offenses enumerated in the application note to § 2K2.1. United States v.
Kenney, 283 F.3d 934, 937 (8th Cir. 2002); see also United States v. Lloyd, 361 F.3d
197, 201 (3d Cir. 2004) (“[R]egardless of the interpretation given to the word
‘another’ in 2K2.1(b)(5), ‘firearms possession or trafficking offenses’ are
categorically removed from the set of crimes that may constitute ‘another felony
offense.’”). In the context of this appeal, an offense falls within the ambit of
“firearms trafficking” when it involves illegal commercial activity involving firearms.
United States v. Boumelhem, 339 F.3d 414, 427-28 (6th Cir. 2003) (involving the
transportation of firearms); see also United States v. English, 329 F.3d 615, 616-617
(8th Cir. 2003) (reversing imposition of § 2K2.1(b)(5) where the “other felony
offense” was the sale of firearms). If an offense is excluded from consideration under
§ 2K2.1(b)(5), we need not consider whether the firearm was possessed in connection
with the underlying conviction. See United States v. Blount, 337 F.3d 404, 406-07
(4th Cir. 2003) (determining whether § 2K2.1(b)(5) applies requires the court to
consider whether the underlying offense constitutes “another felony offense” and, if
so, whether the firearm was possessed “in connection with” the underlying offense).



Indeed, in both Booker and Shepard v. United States, 125 S.Ct. 1254 (2005), the
Supreme Court reaffirmed the ability of the sentencing court to take notice of a
defendant’s criminal history and, as a matter of law, determine whether any prior
conviction is properly categorized as a crime of violence. See United States v.
Marcussen, 403 F.3d 982, 984 (8th Cir. 2005).
                                          -6-
       At sentencing, the district court found that Lindquist illegally possessed a
handgun in connection with the aggravated misdemeanor of acquiring the handgun
without a valid annual permit to acquire handguns. See Iowa Code § 724.16 (“[A]
person who acquires ownership of a pistol or revolver without a valid annual permit
to acquire pistols or revolvers . . . is guilty of an aggravated misdemeanor.”). This is
the sort of firearms-trafficking offense that is specifically excluded from
consideration as “another felony” under § 2K2.1(b)(5). Before an Iowan can legally
acquire ownership of a handgun, he must either obtain a valid annual permit to
acquire handguns or meet one of the exceptions found in Iowa Code § 724.15(2). See
Iowa Code § 724.15(1) (“Any person who acquires ownership of any pistol or
revolver shall first obtain an annual permit.”). A valid annual permit is not necessary
for each handgun purchased, but rather is a license to purchase legally handguns in
Iowa. Iowa Code § 724.15(3); see 1977-78 Op. Atty Gen. Iowa 502. Certain groups
of individuals, such as those with a prior felony conviction, are statutorily prohibited
from acquiring a valid annual permit, § 724.15(1)(b), and, therefore, are unable
legally to acquire ownership of a handgun, § 724.16. It follows that Lindquist, a
prohibited person under § 724.15(1)(b), engaged in illegal commercial activity when
he illegally acquired ownership of a handgun, in violation of § 724.16.4

       Even if we were to read § 724.16 as an offense not involving firearms
trafficking, we would still be compelled to reach the same conclusion. This is
because Lindquist’s violation of § 724.16 involved essentially the same conduct as
his conviction for being a felon in possession of a firearm. See Lloyd, 361 F.3d at 200
(“[T]he use in § 2K2.1(b)(5) of the phrase ‘another felony offense’ – as opposed to
‘any felony offense’ – represents an attempt by the drafters of the Sentencing
Guidelines to avoid the ‘double counting’ of certain elements of criminal activity

      4
        Iowa Code § 724.16A prohibits the trafficking of stolen firearms. A person
traffics in stolen firearms when he “knowingly transfers or acquires possession . . .
of a stolen firearm.” Iowa Code § 724.16A. By comparison, Lindquist violated §
724.16 by acquiring ownership in a firearm that was not stolen. See infra n.5.
                                          -7-
already incorporated into the base offense level.”). As a person with a prior felony
conviction, Lindquist was statutorily prohibited from legally acquiring ownership of
the handgun. Iowa Code § 724.15(1)(b).5 Further, Lindquist’s possession of the
illegally acquired firearm violated 18 U.S.C. § 922(g)(1). In other words, because of
his prior felony conviction, Lindquist could not legally acquire the handgun, §
724.16, much less legally possess the handgun, § 922(g)(1). “[I]t would be
unreasonable, and hence presumably contrary to the Commission’s intent, to allow
the ‘additional felony’ to be an offense that the defendant has to commit, in every
case, in order to commit the underlying offense.” English, 329 F.3d at 618.
Unlawfully acquiring a handgun, by whatever name it is called, is essentially
accounted for in the calculation of Lindquist’s base offense level under § 2K2.1.
Accord United States v. Szakacs, 212 F.3d 344, 350-51 (7th Cir. 2000) (“Because
almost every weapons crime could also be charged as a state law offense, [the district
court’s] reading of the guideline would lead to a routine four-level enhancement and
defeat the purpose behind the structure to the Guidelines.”). Therefore, the district
court erroneously applied the four-level enhancement in § 2K2.1(b)(5) to Lindquist’s
acquisition of ownership of a handgun without a valid annual permit to acquire
handguns.

      We need not remand the case, however, if the error in the application of the
guidelines was harmless, such as where the district court would have reached the

      5
       It is noteworthy that, under Iowa law, ownership of a firearm generally implies
constructive possession of that firearm. See Scott v. State, 666 N.W.2d 619, 2003
Iowa App. LEXIS 451, at *8, 2003 WL 21229785, at *2 (Iowa App. May 29, 2003)
(unpub.) (quoting II Iowa Crim. Jury Instructions 2400.7 (1990) for the proposition
that ownership of a firearm means “dominion and control” over that firearm); State
v. Bash, 670 N.W.2d 135, 137-38 (Iowa 2003) (noting that the exercise of dominion
and control over contraband is sufficient to establish constructive possession); accord
United States v. Maxwell, 363 F.3d 815, 818 (8th Cir. 2004) (“Constructive
possession of the firearm is established if the person has . . . control, ownership, or
dominion over the firearm itself.” (emphasis added)).
                                          -8-
same guidelines range absent the error. See United States v. Hadash, 408 F.3d 1080,
1082 (8th Cir. 2005); see also Mashek, 406 F.3d at 1017. Unlike Hadash, where the
district court’s erroneous application of a § 2K2.1(b)(2) reduction was harmless in
light of the district court’s alternative § 5K2.0 departure to the same guidelines range,
Hadash, 408 F.3d at 1083, the error in this case has resulted in a significantly higher
sentencing range. Indeed, the four-level enhancement under § 2K2.1(b)(5)
erroneously produced a guidelines range of 110 to 120 months, rather than the correct
guidelines range of 70 to 87 months. After a thorough review of the record, we find
that the error was not harmless.

      The district court correctly found that the Iowa offense of operating a vehicle
without the owner’s consent, in violation of Iowa Code § 724.16, is a crime of
violence for purposes of § 2K2.1(a)(1). However, the district court imposed
Lindquist’s sentence as a result of an incorrect application of § 2K2.1(b)(5).
Therefore, we remand the case for resentencing based on a proper application of the
advisory guidelines. Mashek, 406 F.3d at 1015 (noting that 18 U.S.C. § 3742(f)(1)
continues to require remand where the district court imposed a sentence based on an
incorrect application of the guidelines). Further, because we remand for resentencing,
we need not address Lindquist’s challenge to the district court’s application of
mandatory guidelines. See United States v. Borer, 412 F.3d 987, 995 (8th Cir. 2005)
(“Because this case must be remanded for resentencing due to an incorrect application
of the guidelines, we conclude that the district court also should resentence [the
defendant] in light of Booker.”).

III.   CONCLUSION

      For the foregoing reasons, we vacate the sentence and remand the case for
resentencing consistent with this opinion and the Supreme Court’s opinion in Booker.




                                           -9-
HEANEY, Circuit Judge, concurring.

       I concur in the majority opinion, but write separately on the issue of whether
Lindquist’s criminal history includes two prior crimes of violence. The majority,
bound by our precedent, finds that Lindquist’s conviction for operating a motor
vehicle without the owner’s consent is a crime of violence. I restate my view that our
circuit “has far too broad a conception of what the guidelines mean by stating that
violent crimes include ‘conduct that presents a serious potential risk of physical injury
to another.’” United States v. Mohr, 407 F.3d 898, 904 (8th Cir. 2005) (Heaney, J.,
concurring) (quoting USSG § 4B1.2(a)(2)).

       The district court increased Lindquist’s base offense level because he had prior
violent-crime convictions. Those Iowa state court convictions resulted from joyriding
on an all-terrain vehicle before abandoning it in a field (operating a motor vehicle
without the owner’s consent), and waiting in a car while Lindquist’s friend opened
an unlocked pickup truck door and stole its stereo (third-degree burglary). It conflicts
with the very concept of a crime of violence to include these offenses in that category.
“Certainly, the risk of physical injury exists in nearly every felony. The guidelines,
however, focus on whether the risk is a serious one, not just an abstract possibility.”
Mohr, 407 F.3d at 904; see also United States v. Sun Bear, 307 F.3d 747, 755 (8th
Cir. 2002) (Melloy, J., dissenting) (“All felons fear apprehension in the midst of, and
following, their criminal conduct, and all may act recklessly when attempting to
evade capture.”).

       The purpose of crimes-of-violence enhancements is to treat violent criminal
history more seriously than non-violent criminal history. It is not hard to conceive
scenarios in which non-violent felony crimes could become violent, but, in my view,
we ought not trivialize this guideline section’s purpose by expanding the category too
broadly. Here, the result is that James Lindquist’s sentence is increased substantially
because of the “violent felony” of joyriding on a recreational vehicle.

                                          -10-
       The majority opinion remands Lindquist’s case for resentencing due to an
erroneous guidelines calculation, and I agree with that result. As the majority notes,
the district court is now presented with the opportunity to resentence Lindquist under
the advisory guidelines regime. We are not presented with the issue of whether a
guidelines sentence for Lindquist would be unreasonable.6 With the increased
latitude Booker bestowed on a district court’s determination of the ultimate sentence,
the district court in this case should consider whether a guidelines sentence would
further the statutory sentencing goals of 18 U.S.C. § 3553(a).
                         ______________________________




      6
        A panel of our court recently held that a guidelines sentence “is generally
indicative of reasonableness.” United States v. Shannon, 414 F.3d 921, 924 (8th Cir.
2005). I do not believe the appropriately calculated guidelines range is to be given
any more weight than any other factor laid out in 18 U.S.C. § 3553(a). See United
States v. Booker, 125 S. Ct. 738, 757 (2005) (modifying the Federal Sentencing Act
to require district courts to consult the guidelines as well as the other § 3553(a)
factors). While we are not faced with the issue here, a defendant whose guidelines
sentence was increased significantly solely due to the characterization of non-violent
felonies as violent crimes could make a persuasive argument that a sentence within
the guidelines was nonetheless unreasonable in view of § 3553(a)’s other factors.
                                         -11-
