NOT RECOMMENDED FOR PUBLICATION File Name: 22a0499n.06
No. 21

- 5132
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. JAMES E. KEARNEY , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

OPINION

Before: KETHLEDGE, WHITE , and BUSH , Circuit Judges.
KETHLEDGE, Circuit Judge. This case has a complicated procedural history, but the relevant parts are these. Both parties agree that James Kearney ’s sentence is procedurally
unreasonable because t he district court mistakenly concluded that a 2013 conviction w as a predicate offens e under the Armed Career Criminal Act (ACCA)

. 18 U.S.C. § 924(e)(1)

. And th e court’s determination that Kearney was an armed career criminal affected the entirety of his

sentence

. W e therefore vacate and remand for resentenc ing in light of his actual criminal history

. In September 2020 , James Kearney pled guilty to federal charges of distributing methamphetamines and possessi ng a firearm as a convicted felon

. Given his multiple state

- court
convictions , the government contended that Kearne y was an armed career criminal

— a classification that mandated a statutory

- minimum sentence of 180 month s
. The parties agreed that Kearney’s sentence should not exceed 188 months , but Kearney disputed t h e ACCA designation and reserved the right to appeal t h at issue

. T he district court found that Kearney was an armed
career criminal and sentenced him to 180 months ’ imprisonment

.No. 21

- 5132, United States v. Kearney

2

Kearney appealed his sentence, challenging his status as an armed career criminal . While we considered that appeal , he filed a motion

— which the government joined

— to remand the case

to the district court to identify the prior convictions that supported its determination that Kearney
was an armed career criminal

. W e granted that motion and remanded for the district court t o clarify its reasoning

. T he district court the reafter issued a n order explaining that three state

- court convictions supported Kearney ’s enhancement : one in 2007 for cocaine trafficking, and two in 2013 for complicity to traffic heroin. Each conviction carried a maximum penalty of at least 10 years’ imprisonment , which is a prerequisite to treat them as predicate offenses under the ACCA

. See 18 U.S.C. § 924(e)( 2 )

. Kearney then filed a m otion to r econside r , arguing that newly discovered evidence (a plea agreement and courtroom video) showed that one of his 2013 heroin conviction s did not qualify

as a n ACCA predicate offens e
. In that 2013 case , Kearney had been charged with complicity to trafficking two grams or more of heroin , which carr ied a maximum sentence of 10 years’ imprisonment . But Kearney in fact pled guilty to complicity to trafficking less than two grams of
heroin , which carried a maximum sentence of only five years

. Kearney produced the original, written plea agreement indicating his actual sentence and the courtroom video of his plea to the lesser charge ; and t he government agree d that Kearney’s new evidence showed that this conviction

was not a n ACCA predicate. Yet t he district court denied Kearney’s motion on the ground that our earlier remand did not permit the court to consider it

.No. 21

- 5132, United States v. Kearney

3

W hatever the merits of that determination, w e agree with Kearney and the government that
one of his 2013 hero in conviction s did not constitute an ACCA predicate offense. As a result, his sentence was procedurally unreasonable. Gall v. United States , 552 U.S. 38, 51 (2007). Th us we
vacate and remand for plenary resentencing.