United States Court of Appeals

For the Eighth Circuit

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No. 16-4048

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Glenn H. Harlow

lllllllllllllllllllllPetitioner - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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Appeals from United States District Court 

for the Western District of Missouri - Springfield

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 Submitted: January 12, 2018

 Filed: April 27, 2018

[Unpublished]

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Before LOKEN, GRUENDER, and KELLY, Circuit Judges.

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PER CURIAM. 

Glenn Harlow appeals the district court’s partial denial of his 28 U.S.C. § 2255

petition. In 2006, Harlow pleaded guilty to count one, being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1), and count two, failing to appear in

violation of 18 U.S.C. § 3146. A violation of § 922(g)(1) typically carries a

maximum sentence of 10 years’ imprisonment, but because the district court
concluded that Harlow qualified as an armed career criminal under the Armed Career

Criminal Act (“ACCA”), count one carried a minimum sentence of 15 years’

imprisonment. See 18 U.S.C. § 924(e). The second count, with an enhancement

under 18 U.S.C. § 3147, carried a maximum sentence of 20 years’ imprisonment to

be served consecutively to count one. See 18 U.S.C. § 3146. At the sentencing

hearing, the district court sentenced Harlow to 188 months’ imprisonment—180

months on count one and a consecutive 8 months on count two. 

In 2016, Harlow filed this § 2255 petition. He argued that because Johnson v.

United States, 135 S. Ct. 2551 (2015), invalidated the residual clause of the ACCA,

he no longer qualified as an armed career criminal. The Government agreed, but it

asked the district court to deny relief because Harlow’s sentence remained below the

statutory maximum for the two counts of conviction. The Government relied on two

cases. In Sun Bear v. United States, we held that an alleged sentencing guidelines

error did not present a cognizable § 2255 claim where the sentence did not exceed the

statutory maximum. 644 F.3d 700, 705 (8th Cir. 2011) (en banc). In the unpublished

Olten v. United States, we applied the Sun Bear doctrine in the ACCA context. 565

F. App’x 558, 561 (8th Cir. 2014) (per curiam). 

The same district court judge who sentenced Harlow decided the § 2255

petition. He agreed with the Government’s position and declined to reduce the term

of imprisonment based on Sun Bear and Olten, but he did reduce Harlow’s term of

supervised release from five years to three yearsso that it equaled the maximum term

ofsupervised release without the ACCA enhancement. The district court also added:

“In addition, and after reviewing the record, the Court once again finds that a 188

month total term of imprisonment is an appropriate and reasonable sentence

regardless of whether or not Movant qualifiesfor an enhancement under the ACCA.” 

Harlow argues that Sun Bear and Olten are distinguishable for two reasons.

First, he notes that while the petitioners in Sun Bear and Olten alleged a sentencing-

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guidelines and statutory error, his sentence violates the Constitution. The

Government concedes that Harlow’s status as an armed career criminal depended on

the residual clause of the ACCA, and under Johnson, “imposing an increased

sentence under the residual clause of the Armed Career Criminal Act violates the

Constitution’s guarantee of due process.” 135 S. Ct. at 2563. The constitutional

nature of the error, according to Harlow, thus renders the Sun Bear line of cases

inapplicable. Second, Harlow says that unlike in those cases, part of his sentence did

exceed the statutory maximum—the term of supervised release. He claims that the

Sun Bear doctrine applies only where the terms of imprisonment and supervised

release do not exceed the statutory maximum. 

The Government offers no response to these arguments. It comes closest when

it says that Sun Bear and Olten render Harlow’s sentence constitutional. But Harlow

raises an antecedent issue: does the Sun Bear doctrine even apply when a sentencing

error implicates the Constitution? Some district courts, for instance, have answered

in the negative. See, e.g., Jackson v. United States, No. 00-CR-0285 (LAK), 2017

WL 1184272, at *5 (S.D.N.Y. Mar. 29, 2017). As for Harlow’s argument related to

the term of supervised release, the Government’s brief does not address the issue. In

effect, the Government asks us to extend Sun Bear without even acknowledging that

an extension is what it seeks. The Government has failed to sufficiently respond to 1

Harlow’s arguments, and we decline to do so on its behalf. See Fed. R. App. P. 28(b);

United States v. Stuckey, 255 F.3d 528, 531 (8th Cir. 2001) (noting that “we regularly

decline to consider cursory or summary arguments that are unsupported by citations

to legal authorities”). 

The Government also cites a variety of cases discussing “total sentencing 1

packages,” “technical” violations, and findings of harmless error on direct review. 

These cases neither address the issues raised by Harlow nor provide an independent

basis for affirmance.

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That leaves the question whether we should find the purported error harmless

and affirm because the district court wrote that it “once again finds . . . a 188 month

total term of imprisonment . . . an appropriate and reasonable sentence.” Because we

rejected a similar argument in a recent case, we think not. In Gray v. United States,

a § 2255 petitioner had been “convicted and sentenced under an incorrect statutory

subsection.” 833 F.3d 919, 922 (8th Cir. 2016). After denying Gray’s request to

withdraw his guilty plea, we addressed his argument that he should be resentenced

under the correct subsection. Id. at 924. We agreed with the argument, stating that

the “district court’s statement—made in a § 2255 proceeding—that it would have

imposed the same sentence under the correct statute does not avoid harm to Gray’s

substantial rights.” Id. We reasoned that the district court could not simply review

the record—the “affidavits, memoranda, or oral remarks” related to a different

subsection—and credibly assess Gray’s sentence. Id. That wastrue even though “the

same district court that originally sentenced him” presided over the § 2255

proceeding. Id. This logic applies here. Harlow’s indictment treated him as an

armed career criminal under § 924(e), and the other record materials reflect that

designation. The materials note his fifteen-year minimum sentence for count one and

a sentencing guidelines range increased due to the ACCA enhancement. The

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Government offers no basis for departing from our decision in Gray, and we decline

to do so here.

For the foregoing reasons, we reverse and remand for resentencing.

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In fact, the judgment in the case still shows a fifteen-year sentence on count 2

one—a sentence in excess of the statutory maximum without the ACCA

enhancement. See 18 U.S.C. § 924(a)(2).

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