Submitted: August 26, 2019
from United States District Court for the District of
Minnesota - Minneapolis
BENTON, WOLLMAN, and ARNOLD, Circuit Judges.
WOLLMAN, CIRCUIT JUDGE.
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).
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.
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.
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 denied based on the
concurrent sentence doctrine.
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.
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
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.
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