NOT RECOMMENDED FOR PUBLICATION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.

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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 the district court mistakenly concluded that a 2013 conviction was a

predicate offense under the Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e)(1). And the 

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

sentence. We therefore vacate and remand for resentencing in light of his actual criminal history.

In September 2020, James Kearney pled guilty to federal charges of distributing 

methamphetamines and possessing a firearm as a convicted felon. Given his multiple state-court 

convictions, the government contended that Kearney was an armed career criminal—a 

classification that mandated a statutory-minimum sentence of 180 months. The parties agreed that 

Kearney’s sentence should not exceed 188 months, but Kearney disputed the ACCA designation 

and reserved the right to appeal that issue. The district court found that Kearney was an armed 

career criminal and sentenced him to 180 months’ imprisonment.
No. 21-5132, United States v. Kearney

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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. We granted that motion and remanded for the district court to clarify 

its reasoning. 

The district court thereafter issued an 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 motion to reconsider, arguing that newly discovered evidence (a plea 

agreement and courtroom video) showed that one of his 2013 heroin convictions did not qualify 

as an ACCA predicate offense. In that 2013 case, Kearney had been charged with complicity to 

trafficking two grams or more of heroin, which carried 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 the government agreed that Kearney’s new evidence showed that this conviction 

was not an ACCA predicate. Yet the 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

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Whatever the merits of that determination, we agree with Kearney and the government that 

one of his 2013 heroin convictions 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). Thus we 

vacate and remand for plenary resentencing.