United States Court of Appeals

For the Eighth Circuit

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No. 12-3629

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Dale Scott Olten, Sr.

lllllllllllllllllllllMovant - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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 Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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 Submitted: March 5, 2014

 Filed: May 15, 2014

[Unpublished]

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Before WOLLMAN, SHEPHERD and KELLY, Circuit Judges.

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PER CURIAM.

This case is before us on remand from the Supreme Court of the United States. 

See Olten v. United States, 134 S. Ct. 639 (2013). The Supreme Court granted

certiorari, vacated this court’s order denying a certificate of appealability, see Olten

v. United States, No. 12-2629 (Mar. 15, 2013), and remanded the case for further
consideration in light of Descamps v. United States, 133 S. Ct. 2276 (2013). After

further consideration, we again deny a certificate of appealablity in this case. 

I.

Dale Scott Olten, Sr., was convicted of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1), and of possession of a stolen firearm, in

violation of 18 U.S.C. § 922(j). He wassentenced as an armed career criminal (ACC)

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (person who

violatessection 922(g) and has three previous convictions for violent felony, serious

drug offense, or both, committed on occasions different from one another is subject

to minimum 15-year prison term). He did not challenge the ACC determination on

direct appeal. In a 28 U.S.C. § 2255 motion, however, he claimed that he received

ineffective assistance of counsel in the district court and on appeal, and that he was

sentenced above the applicable statutory maximum, because his sentence under

section 924(e) was based in part on two prior burglary convictions under California

PenalCode § 459 (West 1983) (“Every person who enters[certain types oflocations]

1

The full text of the California Penal Code § 459 in effect when Olten was 1

convicted of burglary in California was:

Every person who enters any house, room, apartment, tenement, shop,

warehouse, store, mill, barn, stable, outhouse or other building, tent,

vessel, railroad car, trailer coach, as defined in Section 635 of the

Vehicle Code, any house car, as defined in Section 362 of the Vehicle

Code, inhabited camper, as defined in Section 243 of the Vehicle Code,

vehicle as defined by the Vehicle Code when the doors of such vehicle

are locked, aircraft as defined by the Harbors and Navigation Code,

mine or any underground portion thereof, with intent to commit grand

or petit larceny or any felony is guilty of burglary. As used in this

chapter, “inhabited” means currently being used for dwelling purposes,

whether occupied or not.

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with intent to commit grand or petit larceny or any felony is guilty of burglary.”),

which he maintained were not violent felonies under section 924(e).

The district court denied the section 2255 motion. The court reviewed the

charging documents related to Olten’s California burglary convictions, determined

that the convictions met the definition of generic burglary, and concluded that they

qualified as violent felonies under section 924(e). In so determining, the district court

relied on our decision in United States v. Painter, 400 F.3d 1111, 1113-14 (8th Cir.

2005) (definition of burglary in California statute is broader than generic burglary

because California statute does not require unlawful or unprivileged entry into

building;where information charged equivalent of generic burglary, conviction under

California statute was prior violent felony for purposes of section 924(e) as neither

plea agreement nor plea colloquy established defendant pleaded guilty to offense that

was not generic burglary). This court agreed and denied Olten’s request for a

certificate of appealability. In November 2013, the Supreme Court granted Olten’s

petition for a writ of certiorari, vacated our prior judgment, and remanded this matter

to us for further consideration in light of its June 2013 decision in Descamps. 

II.

Having considered this matter in light of Descamps, we conclude that it is now

clear that Olten’s two prior California burglary convictions should not have been used

to enhance his sentence under the ACCA. See 133 S. Ct. at 2283-93 (holding that

sentencing court may not apply modified categorical approach to sentences under

section 924(e) when crime of conviction has single, indivisible set of elements;

concluding that, because Cal. Penal Code § 459 contained single, indivisible set of

elements, sentencing court erred when it looked atsupporting documentsto determine

Cal. Penal Code § 459 (West 1983). 

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if appellant’s burglaries were violent felonies under ACCA; noting that conviction

under Cal. Penal Code § 459 was “never for generic burglary”). 

Although the ACCA should not have been applied to Olten’s sentence, it does

not follow that Olten is necessarily entitled to relief under section 2255. In his

section 2255 motion, Olten claims (1) that he received ineffective assistance of

counsel in connection with the determination that his California burglary convictions

were violent felonies under section 924(e), and (2) that his sentence exceeded the

statutory maximum that would have applied had he been correctly sentenced without

the ACCA enhancement. Ineffective assistance of counsel and receiving a sentence

that exceeds the maximum allowed by law are two grounds upon which relief may be

granted under section 2255. See 28 U.S.C. § 2255(a) (prisoner in custody may move

the sentencing court to vacate, set aside, or correct sentence imposed in violation of

the Constitution or laws of the United States or in excess of the maximum authorized

by law).

We first consider whether Olten’s counsel provided ineffective assistance in

not objecting to the classification of Olten’s California burglary convictions as

violent felonies under section 924(e). At the time Olten was sentenced, the law in

this circuit was settled that if the defendant was previously convicted of burglary in

California and the charging document established that the conviction was for a

generic burglary, the conviction could be considered a prior violent felony for

purposes of the ACCA. See Painter, 400 F.3d at 1113-14. Thus, any objection by

counsel atsentencing that Olten’s California burglary convictions were not crimes of

violence would have been futile, and we therefore conclude that counsel could not be

considered ineffective for failing to so object. See Hamberg v. United States, 675

F.3d 1170, 1173 (8th Cir. 2012) (counsel not ineffective for failing to object to

correct application ofsettled law within circuit); cf. Brown v. United States, 311 F.3d

875, 878 (8th Cir. 2002) (counsel not ineffective for failing to make “Apprendi-type”

argument prior to Apprendi); Fields v. United States, 201 F.3d 1025, 1027 (8th Cir.

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2000) (counsel not ineffective for failing to raise claim on issue where there is split

of authority among circuits, but no Eighth Circuit or Supreme Court law on subject);

Wadja v. United States, 64 F.3d 385, 388 (8th Cir. 1995) (counsel not ineffective for

failing to predict future developments in law).

We next turn to Olten’s claim that his sentence on the felon-in-possession

conviction exceeded the applicable statutory maximum. We first note that, even

though Olten did not raise this claim on direct appeal, he is not foreclosed from

raising it under section 2255. See 28 U.S.C. § 2255 (prisoner may raise claim that

sentence “wasin excess of the maximum authorized by law” in motion to vacate); cf.

Ackerland v. United States, 633 F.3d 698, 702 (8th Cir. 2011) (our cases establish

that otherwise valid waiver of appeal or postconviction rights does not prevent

defendant from attacking illegal sentence); United States v. Wilson, 997 F.2d 429,

431 (8th Cir. 1993) (per curiam) (while defendant procedurally defaulted Guidelines

claim by failing to raise it on direct appeal, his claim that supervised release was in

excess of statutory maximum was not defaulted because section 2255 expressly

makes relief available for sentence in excess of maximum authorized, and illegal

sentence is manifest injustice). However, we further conclude that—for the following

reasons—Olten is not entitled to relief from his sentence on this claim, even after

Descamps.

The district court sentenced Olten to 235 months imprisonment on the felon in

possession of a firearm offense by treating Olten as an ACC. The court imposed a

concurrent 120-month sentence on the possession of a stolen firearm offense. At

sentencing, the court expressly stated that it was sentencing Olten at the top of his

advisory Guidelines imprisonment range of 188-235 months because it viewed the

facts as extreme and believed a longer sentence was appropriate due to the threat he

posed to the community. We conclude that—even though Olten’s prior California

burglary convictions should not have been used to enhance his sentence under the

ACCA, and the 235-month prison term on the felon-in-possession count alone

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exceeded the 10-year statutory maximum for that count, see 18 U.S.C.

§ 924(a)(2)—the same 235-month sentence “could be reimposed were [Olten] granted

the § 2255 relief he requests” by imposing consecutive terms of imprisonment for the

two counts of conviction under 18 U.S.C. § 3584. See Sun Bear v. United States, 644

F.3d 700, 705 (8th Cir. 2011) (en banc) (“An unlawful or illegal sentence is one

imposed without, or in excess of, statutory authority.”). Hence, Olten is not entitled

to relief on his section 2255 motion. Cf. United States v. Bossany, 678 F.3d 603,

606-607 (8th Cir. 2012) (noting illegal sentence alone does not establish prejudice

necessary for plain-error relief; holding district court’s error in imposing 90-month

sentence for conspiracy, which exceeded 60-month statutorymaximum, did not affect

defendant’s substantial rights because defendant was sentenced to 90 months on

companion conviction with 240-month statutory maximum); United States v. Diaz,

296 F.3d 680, 682-85 (8th Cir. 2002) (en banc) (applying plain-error review standard

in criminal case on direct appeal; holding that, where defendants were each convicted

on multiple counts involving multiple offenses, their “substantial rights” were not

affected even though their respective sentences for one particular offense “exceeded

the . . . statutory maximum” for that offense; reasoning that, “[b]ecause § 5G1.2(d)

mandates consecutive sentencesin those casesin which the total punishment exceeds

the statutory maximum for any one count and the district court’s calculation of total

punishment is not affected by [the error in question],” remanding case to district court

“would be an idle act”).

III.

Accordingly, we again deny Olten’s request for a certificate of appealability.

KELLY, Circuit Judge, concurring.

I concur in the judgment of this case because we are bound by Sun Bear v.

United States, 644 F.3d 700 (8th Cir. 2011) (en banc). I write separately, however,

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to express concern that we are denying relief based on the sentence a district court

hypothetically could—rather than did—impose on Dale Olten. The court correctly

points out that even absent ACC status, the district court could still sentence Olten

to a total sentence of 235 months by imposing consecutive terms of imprisonment for

his two convictions. In doing so, neither term would exceed the 10-year

statutory maximum. At the time of the original sentencing, however, a 235-month

sentence was within the statutory maximum sentence for the ACC-enhanced

felon-in-possession conviction alone; and the sentences were run concurrently. 

While we generally give great deference to district courts in imposing sentences, as

they are in the superior position to make “individualized assessment[s] based on the

facts presented,” see, e.g., Gall v. United States, 552 U.S. 38, 50–52 (2007), here we

are content with speculating what the court might do upon resentencing based solely

on what it could do under its statutory authority. As has been said previously, I

believe this approach “promotes finality at the expense of justice.” Sun Bear, 644

F.3d at 707 (Melloy, J., dissenting); see also Meirovitz v. United States, 688 F.3d

369, 373 (8th Cir. 2012) (Bright, J., concurring) (“The statutory-maximum sentence

cannot be the only touchstone for whether or not a miscarriage of justice has occurred

at sentencing.” (citing Narvaez v. United States, 674 F.3d 621, 629–30 (7th Cir.

2011)). Olten should not have been placed in the same category as others correctly

classified as ACC, and consequently, deservesto be resentenced. See Meirovitz, 688

F.3d at 373 (Bright, J., concurring) (describing the danger in erroneously classifying

an individual as a career offender, even if absent the classification the sentencing

guideline range remains the same). 

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