United States v. Gardner, No. 10-6037 (4th Cir. Mar. 21, 2011):
The Fourth Circuit recently voted to rehear en banc the case of United States v. Vann, 620 F.3d 431 (4th Cir. 2010), in which a majority of the original panel held that the North Carolina offense of taking indecent liberties with a child was a "crime of violence" for purposes of the Armed Career Criminal Act.
Gardner's prior Virginia conviction for taking indecent liberties with a minor was used to enhance his sentence as a career offender under U.S.S.G. § 4B1.1. Gardner challenged the enhancement, relying on Begay v. United States, 553 U.S. 137 (2008). The district court declined to determine whether Begay rendered Gardner's sentence unlawful because the court determined even if Gardner was not a career offender, his sentence was still appropriate.
Although the district court's order states that it is denying Gardner's § 2255 motion, its reasoning could also be interpreted, for practical purposes, as essentially granting § 2255 relief, vacating Gardner’s sentence and imposing a new sentence, albeit the same sentence. Whether this is the case or not determines whether a COA is necessary to appeal.
Accordingly, the Fourth Circuit vacated the district court's order and remanded to give the distirct cour the opportunity to clarify whether it was in fact imposing a new sentence.