                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-1407
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
William Edward Miller,                   *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: May 28, 2008
                                 Filed: December 30, 2008
                                  ___________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       This case is before the court on remand from the Supreme Court for further
consideration in light of Begay v. United States, 128 S. Ct. 1581 (2008). Miller pled
guilty to unlawful possession of a firearm as a previously convicted felon, in violation
of 18 U.S.C. § 922(g)(1). In his appeal, Miller argues that the district court erred in
concluding that he was an armed career criminal, subject to the statutory minimum
sentence of fifteen years’ imprisonment, see 18 U.S.C. § 924(e)(1), and by enhancing
his advisory guideline range based on his possession of a firearm in connection with
another felony, pursuant to USSG § 2K2.1(b)(5).
       Prior to the instant offense, Miller had sustained three prior felony convictions
for theft of a motor vehicle, two for attempted theft of a vehicle, and two for
unauthorized use of a motor vehicle, all in Minnesota. See Minn. Stat. § 609.52, subd.
2(17). Under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), a statutory
minimum sentence of fifteen years’ imprisonment applies if at least three of Miller’s
prior convictions are “violent felonies” under 18 U.S.C. § 924(e)(2)(B). In a prior
opinion, we held that Miller’s three convictions for auto theft qualified as violent
felonies and affirmed the judgment of the district court. United States v. Miller, 223
F. App’x 522 (8th Cir. 2007) (per curiam), vacated, 128 S. Ct. 2047 (2008).

       After this case was remanded, another panel of this court, relying on Begay,
overruled circuit precedent and held that auto theft in Missouri is not a crime of
violence under USSG § 4B1.2. United States v. Williams, 537 F.3d 969, 974-75 (8th
Cir.), reh’g denied, 546 F.3d 961 (8th Cir. 2008). Miller was prosecuted under the
theft statute in Minnesota, which provides that a person commits theft if he “takes or
drives a motor vehicle without the consent of the owner or an authorized agent of the
owner,” knowing or having reason to know that consent was lacking. Minn. Stat.
§ 609.52, subd. 2(17). In light of Williams, our court has held that auto theft in
Minnesota is not a crime of violence for purposes of USSG § 4B1.2. United States
v. Aleman, Nos. 08-1079, 08-1173, 08-2115, 2008 WL 5119542, at *7 (8th Cir. Dec.
8, 2008). The Williams opinion stated that the inquiry applicable to § 4B1.2 also
governs whether an offense is a violent felony under § 924(e), and thus effectively
abrogated circuit precedent holding that auto theft in Missouri is a violent felony. See
United States v. Sprouse, 394 F.3d 578, 581 (8th Cir. 2005). It follows from Williams
and Aleman that Miller’s conviction for auto theft in Minnesota is not a violent felony,
and that United States v. Wilson, 406 F.3d 1074, 1076 (8th Cir. 2005), is no longer
controlling. The convictions for unauthorized use of a motor vehicle, which were
based on the same statute, and for the lesser included offense of attempted auto theft,
also do not qualify. Accordingly, Miller should not have been sentenced as an armed



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career criminal, and the statutory minimum of sentence of fifteen years’ imprisonment
does not apply.

      For these reasons, we vacate the judgment of the district court and remand for
resentencing. We decline at this juncture to address Miller’s challenge to the district
court’s calculation of the advisory guideline range. See United States v. Huber, 404
F.3d 1047, 1063 (8th Cir. 2005).
                             ______________________________




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