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United States of America v. Leonard Gibbs

August 29, 2011

UNITED STATES OF AMERICA, APPELLANT
v.
LEONARD GIBBS



On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-10-cr-00029-001) District Judge: Honorable Gregory M. Sleet

The opinion of the court was delivered by: Fisher, Circuit Judge.

PRECEDENTIAL

Argued July 14, 2011

Before: SLOVITER, FUENTES and FISHER, Circuit Judges.

OPINION OF THE COURT

The government brings this appeal challenging the District Court‟s ruling that a prior conviction for wearing body armor while committing a felony in violation of 11 Del. C. § 1449(a) is not a predicate offense under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). We hold that the body armor conviction is an ACCA predicate offense because it involved the possession of cocaine with intent to distribute. It is "a serious drug offense." 18 U.S.C. § 924(e)(1). We will vacate the ruling of the District Court and remand for sentencing in conformity with this opinion.

I.

Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to possess a firearm. A person convicted under this section is subject to a fifteen-year sentence-enhancement provision:

(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

(2) As used in this subsection--

(A) the term "serious drug offense" means--

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of ...


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