United States of America v. Cody Kinzie Dittmar

United States Court of Appeals
For the Eighth Circuit
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No. 19-1725
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United States of America
Plaintiff - Appellee
v.
Cody Kinzie Dittmar
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: April 13, 2020
Filed: April 28, 2020
[Unpublished]
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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PER CURIAM.
Cody Dittmar pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court found that Dittmar qualified
for a sentencing enhancement under the Armed Career Criminal Act (“ACCA”), see
18 U.S.C. § 924(e), based on two prior Iowa convictions for arson and one prior
Wisconsin conviction for burglary. Dittmar previously appealed his designation as

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an armed career criminal, we vacated his sentence on grounds not relevant to this
appeal, and we remanded the matter for resentencing. United States v. Dittmar, 897
F.3d 958, 959, 961 (8th Cir. 2018). On remand, the district court once again
concluded Dittmar qualified as an armed career criminal on the basis of the same
state convictions. Dittmar again appeals, once more challenging his designation as
an armed career criminal.
In light of United States v. Franklin, 2019 WI 64, 928 N.W.2d 545, which
was decided after Dittmar’s resentencing, the Government now concedes that
Dittmar does not qualify as an armed career criminal because his Wisconsin burglary
conviction is not an ACCA predicate offense. See United States v. Webster, 784 F.
App’x 975 (8th Cir. 2019) (per curiam). As such, in accordance with the parties’
request, we again vacate Dittmar’s sentence and remand this matter to the district
court for resentencing without the ACCA enhancement.
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