GRUENDER, Circuit Judge.
Steven Cowan pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court
On December 2, 2010, officers from the Butler, Missouri Police Department learned that Cowan had contacted a confidential informant ("CI") to inquire if the CI was interested in purchasing a.380-caliber handgun. The CI made two recorded phone calls to Cowan to arrange the purchase of the gun. Police provided the CI with $200 of identifiable currency, equipped the CI with a recording device, and sent the CI to Cowan's home to purchase the gun. After the purchase, officers saw Cowan leave his home, and they arrested him during a traffic stop. The officers found in Cowan's pocket the currency that the CI had been given to purchase the gun. Further investigation revealed that Cowan had prior felony convictions and that the gun had been transported in interstate commerce.
Cowan pled guilty to being a felon in possession of a firearm on July 7, 2011, pursuant to a written plea agreement. The parties agreed that 18 U.S.C. § 924(e)(1), the Armed Career Criminal Act ("ACCA"), did not apply and that the statutory maximum punishment was 10 years' imprisonment. The parties, however, did not agree on a sentencing guidelines base offense level.
At sentencing, the parties disputed whether Cowan's Missouri conviction for attempted escape from custody should be considered a crime of violence within the meaning of § 4B1.2. The district court agreed with the Government and applied a base offense level of 24 pursuant to § 2K2.1(a)(2), ultimately resulting in an advisory guidelines range of 70-87 months' imprisonment. The court sentenced Cowan
On appeal, Cowan for the first time raises the argument that the residual clause in § 4B1.2, which states that a crime of violence is one that "otherwise involves conduct that presents a serious potential risk of physical injury to another," is unconstitutionally vague. Because Cowan did not raise this argument before the district court, we review for plain error. See United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en banc).
Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).
The district court here committed no error, much less plain error, because the Supreme Court twice has rejected arguments that a nearly identically worded residual clause in the ACCA was unconstitutionally vague. While Cowan relies on several dissenting opinions that contend that the ACCA's residual clause is unconstitutionally vague, see Derby v. United States, 564 U.S. ___, 131 S.Ct. 2858, 2858, 180 L.Ed.2d 904 (2011) (Scalia, J., dissenting from denial of certiorari); Sykes v. United States, 564 U.S. ___, 131 S.Ct. 2267, 2284, 180 L.Ed.2d 60 (2011) (Scalia, J., dissenting); James v. United States, 550 U.S. 192, 227-28, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (Scalia, J., dissenting), the Supreme Court has rejected this argument. In James, for example, the Court expressly considered the argument that the Court's decision "leav[es] up in the air for judicial determination how much risk of physical injury each crime presents" and "leaves the lower courts and those subject to the law to sail upon a sea of doubt." 550 U.S. at 228, 127 S.Ct. 1586. In rejecting the vagueness argument, the Court explained:
Id. at 210 n. 6, 127 S.Ct. 1586 (alteration in original) (internal citation omitted); accord Sykes, 564 U.S. ___, 131 S.Ct. at 2277 ("Although this approach may at times be more difficult for courts to implement, it is within congressional power to enact." (citing James, 550 U.S. at 210 n. 6, 127 S.Ct. 1586)); see also United States v. Childs, 403 F.3d 970, 972 (8th Cir.2005) ("In addition, [defendant] argues that § 924(e) is unconstitutionally vague. We agree with every other circuit that has considered this argument and hold that it has no merit." (citing United States v. Presley, 52 F.3d 64, 68 (4th Cir.1995); United States v. Sorenson, 914 F.2d 173, 175 (9th Cir. 1990))).
As we have explained, the "definition of a predicate `crime of violence' [in § 4B1.2] closely tracks ACCA's definition of `violent felony.'" United States v. Vincent, 575 F.3d 820, 826 (8th Cir.2009). As a result, "[a]lthough we have observed that the guideline and the statute may not always be interpreted in the same way, the cases
For the reasons stated above, we affirm.