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Oslund v. United States

United States Court of Appeals, Eighth Circuit

December 10, 2019

Richard Ashton Oslund Petitioner - Appellant
v.
United States of America Respondent - Appellee

          Submitted: August 26, 2019

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before BENTON, WOLLMAN, and ARNOLD, Circuit Judges.

          WOLLMAN, CIRCUIT JUDGE.

         Richard Ashton Oslund robbed and murdered an armored car security guard in 1998. He was convicted in 2004 of robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951 (count 1); murder with a firearm during a robbery affecting interstate commerce, in violation of 18 U.S.C. § 924(c)(1)(A) and (j)(1) (count 2); and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (count 3).

         Oslund was sentenced to twenty years' imprisonment on count 1, life imprisonment on count 2, and life imprisonment on count 3. The sentencing court concluded that the Armed Career Criminal Act (ACCA) applied to count 3, because Oslund had three previous convictions for violent felonies or serious drug offenses, including a 1994 Minnesota conviction for second-degree burglary. The statutory sentencing range for count 3 under the ACCA was fifteen years' to life imprisonment. See 18 U.S.C. § 924(e)(1). Without the ACCA enhancement, the statutory maximum sentence would have been ten years' imprisonment. See id. § 924(a)(2). The then-mandatory U.S. Sentencing Guidelines required life imprisonment on count 3.

         The sentencing court ordered the twenty-year sentence on count 1 and the life sentence on count 3 to run concurrently, with the life sentence on count 2 to run consecutively. The court expressed its intention that Oslund remain imprisoned for life, stating that "what you did ought not to be repeated, and I'm placing you in a position where you may not do so." This court affirmed the convictions and sentences, holding harmless any error by the sentencing court in applying the U.S. Sentencing Guidelines as mandatory. United States v. Oslund, 453 F.3d 1048, 1060-62 (8th Cir. 2006). Oslund moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 in 2007, which was denied. See D. Ct. Order of July 24, 2008.

         After the Supreme Court struck down the ACCA's residual clause as unconstitutionally vague in Johnson v. United States, 135 S.Ct. 2551, 2557, 2563 (2015), Oslund moved for permission to file a second or successive § 2255 motion to vacate the life sentence imposed on count 3. Oslund claimed that he did not qualify for the ACCA's mandatory sentencing enhancement after Johnson because he did not have three qualifying convictions under the ACCA. Specifically, he argued that his 1994 Minnesota conviction for second-degree burglary fell under the residual clause and thus could no longer be considered a violent felony. We authorized Oslund to challenge his ACCA status and granted him permission to file the second or successive § 2255 motion, which the district court[1] denied based on the concurrent sentence doctrine.

         On appeal from the denial of the motion, we did not address whether the district court correctly applied the concurrent sentence doctrine, but rather remanded the matter based on intervening case law. Oslund v. United States, 751 Fed.Appx. 961, 961-62 (8th Cir. 2019) (per curiam) (relying on Walker v. United States, 900 F.3d 1012, 1014-15 (8th Cir. 2018)). We instructed the district court to determine whether Oslund had shown that the sentencing court relied on the residual clause to apply the ACCA enhancement. Id. at 962. On remand, the district court determined that Oslund had "demonstrated by a preponderance of the evidence that the sentencing court relied on the residual clause in finding that his prior conviction for second-degree burglary was a 'violent felony' under § 924(e) and in applying the ACCA's sentencing enhancement." D. Ct. Order of July 17, 2019, at 9. The district court did not "reconsider its findings with respect to the concurrent sentence doctrine." Id. at 9 n.5. The district court's memorandum opinion was then transmitted to this court and the appeal was reopened.

         Oslund argues that the district court erred in applying the concurrent sentence doctrine. The doctrine allows courts to decline to review the validity of a concurrent sentence "when a ruling in the defendant's favor 'would not reduce the time he is required to serve' or otherwise 'prejudice him in any way.'" Eason v. United States, 912 F.3d 1122, 1123 (8th Cir. 2019) (quoting United States v. Olunloyo, 10 F.3d 578, 581 (8th Cir. 1993)).[2]

         As an initial matter, resentencing on count 3 alone would not reduce the time Oslund is required to serve because it would not affect his concurrent twenty-year sentence on count 1 or his consecutive life sentence on count 2. Oslund argues that he is entitled to a full resentencing because, had the sentencing court known that the statutory maximum sentence on count 3 was ten years' imprisonment, it would have imposed a lesser sentence on count 2. The record belies Oslund's argument, however, for the sentencing court clearly expressed its intent that Oslund never be released from prison. As we explained on direct appeal, the Guidelines sentencing range on count 2 was ten years' to life imprisonment, and the sentencing court chose a sentence at the top of the Guidelines range.

The district court therefore had the ability on Count 2, even under the mandatory Guidelines regime, to sentence Oslund anywhere within that range of ten years to life but declined to exercise that discretion in Oslund's favor. Instead, the court imposed the longest sentence available to it.

Oslund, 453 F.3d at 1061. In light of the life sentence imposed on count 2 and the sentencing court's specific statements that Oslund remain in prison for life, we find no error in the district court's conclusion in this matter that "the resulting sentence for the murder conviction would remain the same," even assuming Oslund had set forth a valid Johnson challenge. D. Ct. Order of Oct. 13, 2017, at 13.

         Oslund argues that we should apply the sentencing package doctrine and remand for resentencing on all counts. "Under the sentencing package doctrine, when a defendant successfully attacks one but not all counts of conviction on appeal, we 'may vacate the entire sentence on all counts so that, on remand, the trial court can reconfigure the sentencing plan to ensure that it remains adequate to satisfy the sentencing factors in 18 U.S.C. § 3553(a).'" Smith, 930 F.3d at 981 (quoting United States v. McArthur, 850 F.3d 925, 943 (8th Cir. 2017)). We rejected in Smith a defendant's contention that he was entitled to a full resentencing after his ACCA sentence was deemed invalid in light of Johnson. Id. at 980-81. Because the conviction for being a felon in possession of a firearm was not vacated and because the record indicated that the district court would have applied the same sentence regardless of the ACCA and career offender determinations, we held that "the record gives us no basis to conclude that the district court abused its discretion in not ordering a complete resentencing." Id. at 981 (citing Wright v. United States, 902 F.3d 868, 872-73 (8th Cir. 2018)). Smith is instructive here, because Oslund's conviction for being a felon ...


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