                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 12-3629
                          ___________________________

                                 Dale Scott Olten, Sr.

                         lllllllllllllllllllllMovant - Appellant

                                           v.

                              United States of America

                        lllllllllllllllllllllRespondent - Appellee
                                        ____________

                      Appeal from United States District Court
                for the Western District of Missouri - Jefferson City
                                  ____________

                              Submitted: March 5, 2014
                                Filed: May 15, 2014
                                   [Unpublished]
                                   ____________

Before WOLLMAN, SHEPHERD and KELLY, Circuit Judges.
                        ____________

PER CURIAM.

       This case is before us on remand from the Supreme Court of the United States.
See Olten v. United States, 134 S. Ct. 639 (2013). The Supreme Court granted
certiorari, vacated this court’s order denying a certificate of appealability, see Olten
v. United States, No. 12-2629 (Mar. 15, 2013), and remanded the case for further
consideration in light of Descamps v. United States, 133 S. Ct. 2276 (2013). After
further consideration, we again deny a certificate of appealablity in this case.

                                           I.

       Dale Scott Olten, Sr., was convicted of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1), and of possession of a stolen firearm, in
violation of 18 U.S.C. § 922(j). He was sentenced as an armed career criminal (ACC)
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (person who
violates section 922(g) and has three previous convictions for violent felony, serious
drug offense, or both, committed on occasions different from one another is subject
to minimum 15-year prison term). He did not challenge the ACC determination on
direct appeal. In a 28 U.S.C. § 2255 motion, however, he claimed that he received
ineffective assistance of counsel in the district court and on appeal, and that he was
sentenced above the applicable statutory maximum, because his sentence under
section 924(e) was based in part on two prior burglary convictions under California
Penal Code § 459 (West 1983)1 (“Every person who enters [certain types of locations]

      1
       The full text of the California Penal Code § 459 in effect when Olten was
convicted of burglary in California was:

      Every person who enters any house, room, apartment, tenement, shop,
      warehouse, store, mill, barn, stable, outhouse or other building, tent,
      vessel, railroad car, trailer coach, as defined in Section 635 of the
      Vehicle Code, any house car, as defined in Section 362 of the Vehicle
      Code, inhabited camper, as defined in Section 243 of the Vehicle Code,
      vehicle as defined by the Vehicle Code when the doors of such vehicle
      are locked, aircraft as defined by the Harbors and Navigation Code,
      mine or any underground portion thereof, with intent to commit grand
      or petit larceny or any felony is guilty of burglary. As used in this
      chapter, “inhabited” means currently being used for dwelling purposes,
      whether occupied or not.


                                          -2-
with intent to commit grand or petit larceny or any felony is guilty of burglary.”),
which he maintained were not violent felonies under section 924(e).

       The district court denied the section 2255 motion. The court reviewed the
charging documents related to Olten’s California burglary convictions, determined
that the convictions met the definition of generic burglary, and concluded that they
qualified as violent felonies under section 924(e). In so determining, the district court
relied on our decision in United States v. Painter, 400 F.3d 1111, 1113-14 (8th Cir.
2005) (definition of burglary in California statute is broader than generic burglary
because California statute does not require unlawful or unprivileged entry into
building; where information charged equivalent of generic burglary, conviction under
California statute was prior violent felony for purposes of section 924(e) as neither
plea agreement nor plea colloquy established defendant pleaded guilty to offense that
was not generic burglary). This court agreed and denied Olten’s request for a
certificate of appealability. In November 2013, the Supreme Court granted Olten’s
petition for a writ of certiorari, vacated our prior judgment, and remanded this matter
to us for further consideration in light of its June 2013 decision in Descamps.

                                           II.

       Having considered this matter in light of Descamps, we conclude that it is now
clear that Olten’s two prior California burglary convictions should not have been used
to enhance his sentence under the ACCA. See 133 S. Ct. at 2283-93 (holding that
sentencing court may not apply modified categorical approach to sentences under
section 924(e) when crime of conviction has single, indivisible set of elements;
concluding that, because Cal. Penal Code § 459 contained single, indivisible set of
elements, sentencing court erred when it looked at supporting documents to determine



Cal. Penal Code § 459 (West 1983).

                                          -3-
if appellant’s burglaries were violent felonies under ACCA; noting that conviction
under Cal. Penal Code § 459 was “never for generic burglary”).

       Although the ACCA should not have been applied to Olten’s sentence, it does
not follow that Olten is necessarily entitled to relief under section 2255. In his
section 2255 motion, Olten claims (1) that he received ineffective assistance of
counsel in connection with the determination that his California burglary convictions
were violent felonies under section 924(e), and (2) that his sentence exceeded the
statutory maximum that would have applied had he been correctly sentenced without
the ACCA enhancement. Ineffective assistance of counsel and receiving a sentence
that exceeds the maximum allowed by law are two grounds upon which relief may be
granted under section 2255. See 28 U.S.C. § 2255(a) (prisoner in custody may move
the sentencing court to vacate, set aside, or correct sentence imposed in violation of
the Constitution or laws of the United States or in excess of the maximum authorized
by law).

       We first consider whether Olten’s counsel provided ineffective assistance in
not objecting to the classification of Olten’s California burglary convictions as
violent felonies under section 924(e). At the time Olten was sentenced, the law in
this circuit was settled that if the defendant was previously convicted of burglary in
California and the charging document established that the conviction was for a
generic burglary, the conviction could be considered a prior violent felony for
purposes of the ACCA. See Painter, 400 F.3d at 1113-14. Thus, any objection by
counsel at sentencing that Olten’s California burglary convictions were not crimes of
violence would have been futile, and we therefore conclude that counsel could not be
considered ineffective for failing to so object. See Hamberg v. United States, 675
F.3d 1170, 1173 (8th Cir. 2012) (counsel not ineffective for failing to object to
correct application of settled law within circuit); cf. Brown v. United States, 311 F.3d
875, 878 (8th Cir. 2002) (counsel not ineffective for failing to make “Apprendi-type”
argument prior to Apprendi); Fields v. United States, 201 F.3d 1025, 1027 (8th Cir.

                                          -4-
2000) (counsel not ineffective for failing to raise claim on issue where there is split
of authority among circuits, but no Eighth Circuit or Supreme Court law on subject);
Wadja v. United States, 64 F.3d 385, 388 (8th Cir. 1995) (counsel not ineffective for
failing to predict future developments in law).

       We next turn to Olten’s claim that his sentence on the felon-in-possession
conviction exceeded the applicable statutory maximum. We first note that, even
though Olten did not raise this claim on direct appeal, he is not foreclosed from
raising it under section 2255. See 28 U.S.C. § 2255 (prisoner may raise claim that
sentence “was in excess of the maximum authorized by law” in motion to vacate); cf.
Ackerland v. United States, 633 F.3d 698, 702 (8th Cir. 2011) (our cases establish
that otherwise valid waiver of appeal or postconviction rights does not prevent
defendant from attacking illegal sentence); United States v. Wilson, 997 F.2d 429,
431 (8th Cir. 1993) (per curiam) (while defendant procedurally defaulted Guidelines
claim by failing to raise it on direct appeal, his claim that supervised release was in
excess of statutory maximum was not defaulted because section 2255 expressly
makes relief available for sentence in excess of maximum authorized, and illegal
sentence is manifest injustice). However, we further conclude that—for the following
reasons—Olten is not entitled to relief from his sentence on this claim, even after
Descamps.

       The district court sentenced Olten to 235 months imprisonment on the felon in
possession of a firearm offense by treating Olten as an ACC. The court imposed a
concurrent 120-month sentence on the possession of a stolen firearm offense. At
sentencing, the court expressly stated that it was sentencing Olten at the top of his
advisory Guidelines imprisonment range of 188-235 months because it viewed the
facts as extreme and believed a longer sentence was appropriate due to the threat he
posed to the community. We conclude that—even though Olten’s prior California
burglary convictions should not have been used to enhance his sentence under the
ACCA, and the 235-month prison term on the felon-in-possession count alone

                                         -5-
exceeded the 10-year statutory maximum for that count, see 18 U.S.C.
§ 924(a)(2)—the same 235-month sentence “could be reimposed were [Olten] granted
the § 2255 relief he requests” by imposing consecutive terms of imprisonment for the
two counts of conviction under 18 U.S.C. § 3584. See Sun Bear v. United States, 644
F.3d 700, 705 (8th Cir. 2011) (en banc) (“An unlawful or illegal sentence is one
imposed without, or in excess of, statutory authority.”). Hence, Olten is not entitled
to relief on his section 2255 motion. Cf. United States v. Bossany, 678 F.3d 603,
606-607 (8th Cir. 2012) (noting illegal sentence alone does not establish prejudice
necessary for plain-error relief; holding district court’s error in imposing 90-month
sentence for conspiracy, which exceeded 60-month statutory maximum, did not affect
defendant’s substantial rights because defendant was sentenced to 90 months on
companion conviction with 240-month statutory maximum); United States v. Diaz,
296 F.3d 680, 682-85 (8th Cir. 2002) (en banc) (applying plain-error review standard
in criminal case on direct appeal; holding that, where defendants were each convicted
on multiple counts involving multiple offenses, their “substantial rights” were not
affected even though their respective sentences for one particular offense “exceeded
the . . . statutory maximum” for that offense; reasoning that, “[b]ecause § 5G1.2(d)
mandates consecutive sentences in those cases in which the total punishment exceeds
the statutory maximum for any one count and the district court’s calculation of total
punishment is not affected by [the error in question],” remanding case to district court
“would be an idle act”).

                                          III.

      Accordingly, we again deny Olten’s request for a certificate of appealability.

KELLY, Circuit Judge, concurring.

      I concur in the judgment of this case because we are bound by Sun Bear v.
United States, 644 F.3d 700 (8th Cir. 2011) (en banc). I write separately, however,

                                          -6-
to express concern that we are denying relief based on the sentence a district court
hypothetically could—rather than did—impose on Dale Olten. The court correctly
points out that even absent ACC status, the district court could still sentence Olten
to a total sentence of 235 months by imposing consecutive terms of imprisonment for
his two convictions. In doing so, neither term would exceed the 10-year
statutory maximum. At the time of the original sentencing, however, a 235-month
sentence was within the statutory maximum sentence for the ACC-enhanced
felon-in-possession conviction alone; and the sentences were run concurrently.
While we generally give great deference to district courts in imposing sentences, as
they are in the superior position to make “individualized assessment[s] based on the
facts presented,” see, e.g., Gall v. United States, 552 U.S. 38, 50–52 (2007), here we
are content with speculating what the court might do upon resentencing based solely
on what it could do under its statutory authority. As has been said previously, I
believe this approach “promotes finality at the expense of justice.” Sun Bear, 644
F.3d at 707 (Melloy, J., dissenting); see also Meirovitz v. United States, 688 F.3d
369, 373 (8th Cir. 2012) (Bright, J., concurring) (“The statutory-maximum sentence
cannot be the only touchstone for whether or not a miscarriage of justice has occurred
at sentencing.” (citing Narvaez v. United States, 674 F.3d 621, 629–30 (7th Cir.
2011)). Olten should not have been placed in the same category as others correctly
classified as ACC, and consequently, deserves to be resentenced. See Meirovitz, 688
F.3d at 373 (Bright, J., concurring) (describing the danger in erroneously classifying
an individual as a career offender, even if absent the classification the sentencing
guideline range remains the same).
                         ______________________________




                                         -7-
