## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-1403

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Martin Larry Wilson, * * Appellant. *

___________ Submitted: December 9, 2008 Filed: April 20, 2009

___________ Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.

___________ SHEPHERD, Circuit Judge.
Martin Larry Wilson pled guilty to onecount of being a felon and domestic abuse misdemeanant in possession of a fir earm in violation of 18 U.S.C. § 922(g)(1) and 922(g)(9). The district court senten ced Wilson to 78 months imprisonment after finding that his prior Missouri felony convic tion for endangering the welfare of a child in the first degree qualifies as a “crime of violence” under section 2K2.1(a)(4) of the Sentencing Guidelines. Because we concl ude that Wilson’s prior conviction for endangering the welfare of a child in the fi rst degree is not a crime of violence, we vacate his sentence and remand for resentencing.1 “It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce, any firearm or ammunition . . . .” 18 U.S.C. § 922(g)(1). On February 28, 1992, Wilson was convicted of theft in the second degree in Linn County, Iowa, and sentenced to five y ears imprisonment (suspended) and placed on two years probation.

2 “It shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic viol ence . . . [to] possess in or affecting commerce, any firearm or ammunition . . . .” 18 U.S.C. § 922(g)(9). On November 29, 2005, Wilson was convictedof simple domestic abuse, a misdemeanor offense, in Iowa County, Iowa.

3 The Sentencing Guidelines define “cri me of violence” as “any offense under federal or state law, punishable by imprisonm ent for a term exceeding one year, that -- (1) has as an element the use, attempted use, or threatened use of physical force

-2- Marengo, Iowa, police officers arrived at Wilson’s home in response to a 911 hang-up call on November 17, 2006, and observed Wilson and his wife arguing in the yard. Wilson’s wife was bleeding and had significant facial injuries. Officers separated the two, placing Wils on in a patrol car and escorting his wife into the house. While questioning the wife, an officer noticed a replica revolver next to a chair in the living room. The officer aske d if there were any other firearms in the house, and the wife replied that she believed a .22 caliber rifle was hidden in the rafters. An officer then questioned Wilson, who cooperated and disclosed that the rifle was actually on top of the entertainment center. When th at officer returned to the house, another officer had already located the rifle.

Wilson pled guilty to one count of know ingly possessing a firearm in violation of 18 U.S.C. § 922(g)(1) 1 and 922(g)(9), 2which carries a ten- year maximum sentence. See18 U.S.C. § 924(a)(2). At sentencing, th e district court determined that a base offense level of 20 was appropriate because , according to the court, Wilson’s prior Missouri felony conviction for endangering the welfare of a child in the first degree qualifies as a crime of violence within th e meaning of the Sentencing Guidelines. 3 Seeagainst the person of another, or (2) is bur glary of a dwelling, arson, or extortion, involves the use of explosives, or otherw ise involves conduct that presents a serious potential risk of physical injury to another.” USSG §4B1.2(a); see also id. §2K2.1 comment. (n.1) (noting that “[f]or purposes of this guideline [§2K2.1] . . . ‘crime of violence’ has the meaning given that term in §4B1.2(a)”).

4 Section 568.045.1(1) reads: “A person commits the crime of endangering the welfare of a child in the first degree if: (1) [t]he person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old[.]” Mo. Rev. Stat. § 568.045.1(1) . In 2003, Missouri reclassified this offense as a class C felony. See 2003 Mo. Legis. Serv. 88 (West).

-3- United States Sentencing Commission, Guidelines Manual , §2K2.1(a)(4)(A) (setting a base offense level of 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of [] a crim e of violence”). The court also imposed a two-level upward adjustment for obstruction of justice because Wilson failed to appear at a court-ordered hearing, increasing his offense level to 22. Wilson was assessed with six criminal history point s, resulting in a criminal history category of III. However, the c ourt departed upward to cat egory IV based on Wilson’s extensive criminal record. The court calculated an advisory Guidelines range of 63 to 78 months and then sentenced Wilson to 78 months imprisonment. Absent a prior felony conviction for a crime of violence, Wilson’s base offense level would have been 14, seeid. §2K2.1(a)(6), his adjusted o ffense level 16, and his advisory Guidelines range 33 to 41 months.

According to the Presentence Investigation Report, on April 6, 2000, Wilson was convicted in Lewis County, Missouri, of endangering the welfare of a child in the first degree, a Class D felony, in violation of Mo. Rev. Stat. § 568.045.1(1), by knowingly “act[ing] in a manner that created a substantial risk to the lives of” his two children, both of whom were “l ess than seventeen years old.” 4The conduct underlying his conviction wa s “operating a motor vehicle on the highway while intoxicated with said children in the vehicl e.” That same day, he was also convicted-4- of driving under the influence. On appeal , Wilson argues that his prior conviction for child endangerment is not a crime of violen ce. We review de novo a district court’s finding that a prior conviction constitutes a crime of violence under the Sentencing Guidelines. United States v. LeGrand , 468 F.3d 1077, 1081 (8th Cir. 2006), cert. denied , 127 S. Ct. 2926 (2007).

Earlier this term, this court held th at “endangering the welfare of a child, in violation of Missouri section 568.045.1(1), is not a ‘violent felony’ within the meaning of the [Armed Career Criminal Act],” 18 U.S.C. § 924(e)(2)(B). United States v. Gordon , 557 F.3d 623, 628 (8th Cir. 2009). We applied the Supreme Court’s reasoning from Begay v. United States , 128 S. Ct. 1581 (2008), and found that “nothing in the statutory definition of [endangering the welfare of a child] suggests [that] it typically involves violen t and aggressive conduct.” Gordon , 557 F.3d at 626 (quotation and alteration omitte d). Rather, we observed that “a person can create a substantial risk to a child’s life, body orhealth through knowing actions that are neither violent nor aggressive, and this subsection [Mo. Rev. Stat. § 568.045.1(1)] is routinely applied to very passive behavior.” Id. (listing Missouri cases in which defendants were convicted for leaving ch ildren unattended near an unfenced pond and with a physically abusive spouse).

This court has also held that “[t]he de finition of ‘crime of violence’ in USSG §4B1.2(a) is nearly identical to the defi nition of ‘violent felony’ in 18 U.S.C. § 924(e)(2)(B), and we treat the two as interchangeable.” United States v. Clinkscale , No. 08-1163, 2009 WL 674139, at *1 (8th Cir. Mar. 17, 2009). Because Missouri’s felony offense of e ndangering the welfare of a child in the first degree does not qualify as a violent felony under the Armed Career Criminal Act, seeGordon , 557 F.3d at 628, it also does not constitute a crime of violence under the Sentencing Guidelines, seeClinkscale , 2009 WL 674139, at *1. Therefore, the district court improperly calculated Wilson’s offense leve l and advisory Guidelines range, which constitutes significant procedural error. See, e.g. , United States v. Spikes , 543 F.3d-5- 1021, 1023 (8th Cir. 2008). Because we cannot discern what sentence the court would have imposed under a properly calculated Guidelines range, the procedural error was not harmless. Seeid. at 1026. Accordingly, we vacate Wilson’s sentence and remand to the district court for resentencing.

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