author: KELLY, Circuit Judge. COLLOTON, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee v. Donald Clark LUGER, also known as Jody Luger, Defendant-Appellant
    No. 15-2786
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 18, 2016
    Filed: September 14, 2016

      Counsel who presented argument on behalf of the appellant was Nancy Hollander, of Albuquerque, NM. The following attorneys also appeared on the appellant brief; Amber Fayerberg, of Albuquerque, NM., Dwane Cates, of Phoenix, AZ.
    Counsel who presented argument on behalf of the appellee and appeared on the brief was Gary Lee Delorme, AUSA, of Bismarck, ND.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

Jody Luger appeals from his conviction of one count of aggravated sexual abuse of a child in Indian country. We have considered each of the three issues presented on appeal, and affirm the judgment of the district court.

I. Background

The investigation in this case began in late 2011, when a letter alleging that Luger sexually assaulted his girlfriend’s 16-year-old daughter was sent to the U.S. Attorney’s Office (USAO) for the District of North Dakota. The letter was forwarded to the FBI for further investigation, which ultimately revealed multiple allegations of sexual abuse going back decades. On May 14, 2013, Luger was indicted on three counts. Count 1 charged him with aggravated sexual abuse of a child, T.L., in Indian country, occurring in 1999. Counts 2 and 3 charged Luger with abusive sexual contact and child abuse in Indian country, occurring in late 2011. The victim of the latter two counts was E.C.G., the 16-year-old girl who had been the subject of the original letter.

Before trial, the government indicated its intent to introduce propensity evidence pursuant to Federal Rules of Evidence 413 and 414. This evidence was to consist of the testimony of five women, all of whom alleged that Luger had sexually abused or assaulted them. The assaults had all occurred more than 26 years prior to the indictment in this case. Three of the women had been adults at the time of the assaults, and the other two had been young teenagers. Luger moved in limine to exclude all five women’s testimony. The district court granted Luger’s motion as to the three women who had been adults at the time of the assaults, and denied Luger’s motion as to the two women — M.N. and S.C. — who had been teenagers at the time of the assaults.

The case proceeded to trial on November 17, 2014. At trial, T.L. testified that Luger had sexually assaulted her in 1997, when she was 13 years old. At the time, T.L.’s mother was in a relationship with Luger. T.L. testified that early one morning after her mother had left their apartment and gone to work, Luger came into her bedroom, held her down, and touched her breasts and genitals. T.L. said that Luger smelled as though he had been drinking. E.C.G. also testified, but recanted her allegation that Luger had assaulted her. Instead, E.C.G. testified that during her first interview with the FBI, when she said that Luger had sexually abused her (corroborating the accusation in the letter sent to the USAO), she had been using methamphetamine and was hungover. E.C.G. testified that she later heard about what she had told the FBI, but did not remember telling them that and did not believe that Luger would have abused her. E.C.G. also testified about various traumatic events and disruptions in her life, which Luger and the government respectively framed as damaging and bolstering to the credibility of her original accusation. M.N.’s and S.C.’s testimony about Luger’s assaults on them was presented as propensity evidence. On November 21, at the close of the defense’s case and before closing arguments, the district court granted Luger’s motion for a judgment of acquittal as to Counts 2 and 3. The court determined that, in light of E.C.G.’s recantation, the government had not presented evidence from which a reasonable jury could find Luger guilty beyond a reasonable doubt. Count 1 went to the jury, which returned a verdict of guilty.'

After trial and upon review of the pre-sentence report, Luger’s counsel discovered that the U.S. Attorney, Timothy Pur-don, had a cléar conflict of interest in Luger’s case.' Prior to his appointment as the U.S. Attorney fof the District of North Dakota, Purdon had worked in private practice as a criminal defense attorney and had represented Luger on a charge of tampering with'evidence in 2009. Based on this fact, Luger moved to disqualify the USAO for the District of North Dakota on February 17, 2015. The government filed a response on February 19, and attached an affidavit by Purdon. The district court then set a hearing for March 27, 2015. .Before the hearing, the government was permitted to withdraw Purdon’s affidavit and file an exhibit consisting of an email exchange between the USAO and officials at the Department of Justice (DOJ) regarding the conflict. At the hearing, the government presented no additional evidence. The district court granted the motion to disqualify.

On April 15, 2015, the government filed a motion for reconsideration on the disqualification issue, attaching four exhibits ostensibly showing'that the ÜSAO had properly screened Purdon from participation in Luger’s case. The"government did not explain its initial failure to provide this evidence. Nevertheless, the district court granted the government’s motion for reconsideration, vacated its previous order, and denied Luger’s motion to disqualify. On July 16, 2015, Luger filed a motion for a new trial, arguing that the undisclosed conflict of interest and associated appearance of impropriety had deprived him of his constitutional right to a fair trial. The district court denied Luger’s motion, finding that any newly discovered evidence would not have resulted in an acquittal.

On July 30, 2015, the district court sentenced Luger to 138 months’ imprisonment. Luger timely appealed, arguing that the district court erred in partially denying his motion in limine, in granting the government’s motion for reconsideration, and in denying-his motion for a hew trial. We address each issue in turn.

II. Motion in Limine

Luger first challenges the district court’s partial denial of his motion in li-mine as to the propensity testimony of M.N. and S.C. He asserts that the sexual assaults about which the two women testified were insufficiently similar to the charged conduct in this case to justify their admission as propensity evidence, and that because of the dissimilarity the prejudicial effect of the testimony substantially outweighed its probative value. We review the district court’s decision to admit this evidence for abuse of discretion. United States v. Gabe, 237 F.3d 954, 959 (8th Cir.2001); United States v. Mound, 149 F.3d 799, 800-01 (8th Cir.1998) (holding that Rules 413 and 414 are constitutional subject to the limitations of Rule 403, and reviewing the district court’s evidentiary decisions under these rules for abuse of discretion).

As a general rule, evidence of a defendant’s prior bad acts is not admissible to prove his propensity to commit the charged crime. See Fed. R. Evid. 404(b). However, Federal Rules of Evidence 413 and 414 create an exception to that general rule in cases where the charged crime is sexual assault or child molestation. Fed. R. Evid. 413, 414. In such cases, evidence of any prior sexual assault or child molestation offense is admissible for any relevant purpose, including to prove the defendant’s propensity to commit the charged offense. Id. These rules are checked by Rule 403, under which otherwise admissible propensity evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice. Fed. R. Evid. 403. Though Rules 413 and 414 reflect a “strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible,” United States v. LeCompte, 131 F.3d 767, 769 (8th Cir.1997), the prior offenses must be similar enough to the charged offense to be probative of the defendant’s propensity to commit that specific offense. See United States v. Crow Eagle, 705 F.3d 325, 327 (8th Cir.2013) (per curiam); United States v. Gabe, 237 F.3d 954, 959 (8th Cir.2001). Thus, even where prior offenses are offered solely to prove the defendant’s propensity to commit the charged offense, the district court is required to conduct a careful analysis of the prior offenses to determine that they are in fact probative of propensity and are not overly prejudicial.

Here, the district court conducted a commendably thorough analysis of the admissibility of the propensity testimony. The court reviewed the history and purpose of Rules 413 and 414, observing that they deviate' from the general rule that evidence may not be admitted to prove propensity. The district court also noted that after the enactment of Rules 413 and 414, courts continued to apply the balancing test required by Rule 403 and excluded evidence otherwise admissible under the rules if it created “substantially unfair prejudice” relative to its probative value. In this case, the district court readily concluded that the three sexual assaults against adult victims “ha[d] little relevance on the question of propensity to engage in inappropriate sexual contact with a minor,” and that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. However, the court found that M.N.’s and S.C.’s testimony about Luger’s assaults, on them was probative of his propensity to commit the charged offenses, because there was “greater similarity” between the charged conduct and the propensity conduct. The court observed that while there was some prejudice to Luger, that prejudice was not substantial enough to justify excluding the evidence.

Though we consider this a close question, the district court acted within its discretion in admitting M.N.’s and S.C.’s testimony. The assaults against M.N. and S.C. had occurred more than 25 years prior to the trial in this case, diminishing the probative value of their testimony and potentially increasing its prejudicial effect. See Gabe, 237 F.3d at 960. Furthermore, both M.N. and S.C. testified that Luger raped them, a more serious — and thus more prejudicial — offense than the touchings charged in this case. However, the assaults against T.L., E.C.G., M.N., and S.C. all occurred when the victims were between 13 and 16 years old. Luger was in a relative position of power or authority over his victims: T.L., E.C.G., and M.N. were all part of Luger’s extended family group, and Luger was S.C.’s teacher. T.L. and M.N. were both assaulted while sleeping in a home to which Luger had access. Luger restrained T.L., M.N., and S.C. while he assaulted them, either by holding them down or, in S.C.’s case, tying her to his bed.

Given these similarities, M.N.’s and S.C.’s testimony was probative of Luger’s propensity to commit the charged offenses in this case. While their testimony was prejudicial, the district court concluded that this prejudice was not substantially unfair and did not outweigh the testimony’s probative value. Crow Eagle, 705 F.3d at 328 (“The district court’s balance of the prejudicial and probative impacts of evidence is accorded ‘great deference.’ ” (citation omitted)); United States v. Hollow Horn, 523 F.3d 882, 888 (8th Cir.2008). Rules 413 and 414 contemplate the admission of prejudicial evidence to prove propensity, and we believe the district court applied those rules correctly here. See LeCompte, 131 F.3d at 769 (“Rule 403 must be applied to allow Rule 414 its intended effect.”). We defer to the district court’s careful exercise of its discretion in this case, and conclude that the propensity testimony of M.N. and S.C. was properly admitted.

III. Motion for Reconsideration

Luger next argues that the district court abused its discretion in granting the government’s motion for reconsideration. See Julianello v. K-V Pharm. Co., 791 F.3d 915, 922 (8th Cir.2015) (reviewing the district court’s denial of a motion for reconsideration for abuse of discretion).

In the civil context, our court has been clear that a motion for reconsideration “serve[sj the limited function of correcting manifest errors of law or fact or ... presenting] newly discovered .evidence.” Bradley Timberland Res. v. Bradley Lumber Co., 712 F.3d 401, 407 (8th Cir.2013) (alterations in original) (quoting United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.2006)). A motion for reconsideration should not be used as a vehicle to present evidence that was available when the matter was initially adjudicated. See Julianello, 791 F.3d at 922; Anthony v. Runyon, 76 F.3d 210, 215 (8th Cir.1996) (evidence presented on a motion for reconsideration “must be truly new, in the sense that it was previously unavailable”); Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988) (quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.1987) (motion for reconsideration “cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the [previous] motion”).' Although this court has never had occasion to do so, courts in other Circuits have held that this civil standard applies to motions for' reconsideration raised in criminal cases outside of the suppression context. See United States v. Rollins, 607 F.3d 500, 502 (7th Cir.2010) (citing United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964)) (“The Justices have concluded. that motions to reconsider in criminal prosecutions are proper and will be treated just like motions in civil suits.”)); see, e.g., United States v. Gomez-Gomez, 643 F.3d 463, 471-72 (6th Cir.2011) (reconsideration was improper where the movant “failed to inform the district court why his additional witness testimony in support of his claim that he was a juvenile was not previously available to him”).

In this case, in response to Luger’s motion to disqualify, the government initially submitted an affidavit by Purdon as evidence that disqualification was unnecessary. Before the hearing on the issue, the government asked to withdraw that affidavit, and instead provided- an email exchange between the USAO and the DOJ regarding Purdon’s recusal from Luger’s case. The government provided no additional evidence at the hearing on this motion. After the district court resolved the matter against the government and in Luger’s favor, the government sought reconsideration and provided four exhibits — 'including Purdon’s affidavit — in support of its position that Purdon had been properly screened from Luger’s case. The government offered no reason for its failure to provide that evidence before the motion was adjudicated, and does not dispute that all the evidence was available before the hearing on the . motion to disqualify. According to Luger, the government used its motion for reconsideration for the sole purpose of introducing evidence that could have been raised during the initial motion to disqualify but was offered only after the government received an adverse ruling. Thus, Luger asks us to import the civil standard for motions for reconsideration— including the bar on using such motions to “rais[e] evidence [the movant] could have previously raised” — into the criminal context and find that the district court improperly granted reconsideration without requiring the government to justify its failure to present available evidence to the district court during the pendency of the original motion. See Julianello, 791 F.3d at 923 (motions to reconsider should not be used for the “impermissible purpose of raising evidence they could have previously raised”).

We need not decide whether to import the civil motion for reconsideration standard into the criminal context, however, because any possible error in granting the motion to reconsider was harmless. Luger moved to disqualify the USAO after trial, when only sentencing remained to be completed. Reversal of the district court’s grant of the motion for reconsideration and reinstatement of the court’s order disqualifying the USAO would therefore require only resentencing, without the involvement of the North Dakota USAO. Luger suffered no prejudice from the North Dakota USAO’s participation in sentencing — in fact, Luger received a below-Guidelines sentence — and he does not request resentencing. As a result, we decline to remand on this issue. See United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).

IV. Motion for New Trial

Third and finally, Luger argues that the district court erroneously denied his motion for a new trial based on newly discovered evidence. We review the district court’s denial of a new trial for abuse of discretion, and conclude that there was no such abuse here. United States v. Dodd, 391 F.3d 930, 934 (8th Cir.2004).

In support of his motion for a new trial, Luger introduced into evidence the four exhibits the government had introduced in support of its motion for reconsideration, as well as several filings that included Purdon’s name in the signature block. The district court considered this evidence, and determined that the USAO had followed appropriate recusal procedures, that Pur-don had been adequately screened from Luger’s case, and that Purdon had no improper substantive involvement with the case. The court therefore concluded that there was no conflict of interest tainting Luger’s trial, and that the newly discovered evidence of Purdon’s conflict of interest would have no effect on a new trial.

Given the finding that Purdon had been adequately screened from Luger’s prosecution and trial, the district court’s decision to deny Luger a new trial was not an abuse of discretion. In support of his argument that a new trial was necessary because Purdon’s conflict of interest rendered his trial actually or apparently unfair, Luger points to two facts: first, that several filings included Purdon’s name in the signature block, and second, that Purdon asked the Assistant U.S. Attorney responsible for Luger’s case not to file his affidavit regarding recusal unless it was necessary. Both of these facts were available to the district court at the time of Luger’s motion, and both seem to indicate that Purdon was in some way involved in Luger’s prosecution and that there were troubling cracks in the screening measures undertaken to “wall off” Purdon from this case. But neither fact renders clearly erroneous the district court’s ultimate finding that Purdon was adequately .screened from Luger’s case. Luger does not allege any specific unfairness associated with these instances of Purdon’s purported involvement in his case, instead as-setting that the appearance of Purdon’s name in the signature block on filings and Purdon’s stance on the use of his affidavit affected the “core” of his trial. On the record before us, we do not see how. There is no evidence that the appearance of Purdon’s name in the filings was actually prejudicial, and the district court determined that Purdon’s request regarding his affidavit was not substantive in nature. And Luger does not allege any specific unfairness associated with Purdon’s conflict of interest generally. For example, he did not assert that Purdon’s previous representation affected his decision on whether to testify, he did not identify any evidence or examination at trial that revealed Purdon’s involvement in his ease, and he did not explain the nature of any overlap between this case and the case where Purdon was his attorney. In the face of the district court’s determination that Purdon was actually recused from Luger’s case, Luger’s broad claim of unfairness is insufficient to support a conclusion that he should have received a new trial.

We agree with Luger that a defendant is entitled to a trial that both appears fair and actually is fair. United States v. Singer, 710 F.2d 431, 437 (8th Cir.1983) (en banc). We also agree that the involvement of a conflicted prosecutor in a criminal proceeding is a fundamental constitutional error. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 810, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). But here, the district court established that Purdon — admittedly conflicted — did not participate in Luger’s prosecution or trial. Because Purdon was adequately screened from Luger’s case, the fairness concerns associated with the involvement of a conflicted prosecutor did not actually arise.

Our conclusion that a new trial was not required in this case does not diminish the importance of careful, conscientious management of conflicts of interest. A conflict such as this one has the potential to affect both the fairness and the appearance of fairness in a criminal prosecution. Full disclosure to all affected parties — and to the district court — is also important in achieving these goals. But based on the district court’s specific finding that Purdon had been adequately screened from substantive involvement in Luger’s prosecution, and under the particular circumstances of this ease, we conclude that Luger has not shown that the district court abused its discretion in denying him a new trial.

V. Conclusion

For the foregoing reasons, we affirm the judgment of the district court.

COLLOTON, Circuit Judge,

concurring in the judgment.

I agree with the decision to affirm, and I concur in the judgment.

The district court did not abuse its discretion in admitting the testimony of witnesses M.N. and S.C. under Federal Rules of Evidence 413 and 414. I do not join the court’s expression of “concerns” about the “prejudicial nature” of the trial testimony of witness E.C.G., ante, at 874 n.4, because Luger does not raise any claim of error concerning this testimony, and the district court properly admitted the testimony of E.C.G. as an alleged victim in the case.

On the motion for reconsideration concerning disqualification, I agree that Luger suffered no prejudice from having an attorney from the United States Attorney’s Office in North Dakota rather than another government attorney represent the United States at sentencing. That is enough to resolve this point of the appeal. The court, ante, at 875-76, goes further in dicta to suggest that a district court considering a motion for reconsideration in a civil case may not receive evidence that was available earlier. The cited authorities, however, all involve orders denying a motion for reconsideration; the court cites no case in which this court held that a district court is categorically forbidden to receive additional evidence on reconsideration without demanding a justification from the movant. The court, ante, at 875-76, also opines that the Sixth and Seventh Circuits apply the asserted “civil standard” to motions for reconsideration in criminal cases. Again, however, the cited authorities involve orders denying a motion for reconsideration. When directly confronted with the propriety of granting a motion in a criminal case, the Seventh Circuit rejected the rule suggested by the court: “We ... decline to impose a justification requirement to reopen a suppression hearing. Instead, we hold that this decision lies within the sound discretion of the district court.” United States v. Ozuna, 561 F.3d 728, 734-35 (7th Cir.2009) (emphasis added). Given that Luger was not prejudiced by the district court’s approach, it is unnecessary here to address whether a district court in any context must demand a justification for the presentation of new evidence on reconsideration.

I agree that the district court did not abuse its discretion in denying Luger’s motion for a new trial, because United States Attorney Purdon was adequately screened from involvement in Luger’s ease. Unlike the court, ante, at 877 n.8, I express no view on the district court’s alternate conclusion that evidence of Pur-don’s conflict of interest was not newly discovered.

      . The Honorable Ralph R. Erickson, Chief Judge, United States District Court for the District of North Dakota.

      . The evidence later showed that this assault may have occurred in 1997,

      .E.C.G. initially told the FBI that Luger sexually assaulted her one night when he came home from a bar and found her alone in the living room. She said that she was lying down watching TV, and Luger came over and touched her genitals. At the time, Luger was in a relationship with E.C.G.’s mother.

      . We note that Luger was ultimately acquitted of the charges relating to E.C.G., and we have some concerns about the prejudicial nature of her testimony in this context. However, at the time that the district court ruled on the motion in limine, the counts as to E.C.G. were still extant, and the district court was not required to predict that it would enter a judgment of acquittal on those counts when analyzing the admissibility of M.N. and S.C.’s testimony under Rules 413 and 414. We also note that Luger did not object to the admission of E.C.G.’s testimony at trial, and that after the judgment of acquittal the district court determined that her testimony could not be considered as propensity evidence.

      . Luger does not challenge the district court’s ultimate denial of his motion to disqualify the North Dakota USAO.

      . ' Luger was sentenced to 138 months’ imprisonment, and the advisory Guidelines sentencing range was 168-210 months’ imprisonment.

      . Even if the district court's consideration of these exhibits in the context of the government’s motion for reconsideration was improper, Luger himself reintroduced them in support of his motion for a new trial.

      . The district court also found that the evidence of Purdon’s conflict was not newly discovered, because it was "indisputable” that Luger knew that Purdon had previously represented him. We are less inclined to so conclude, but because we affirm the district court’s ruling on its alternative grounds we need not resolvé' this question.

      . One of these filings was a stipulation the parties entered, which was read to the jury, Purdon’s name included.

      . The weight of authority concerning motions to reconsider suppression orders in criminal cases aligns with the Seventh Circuit. Compare United States v. Huff, 782 F.3d 1221, 1224 (10th Cir.2015) (“The district court may prefer, even require, die government to explain why it failed to introduce an argument earlier, but that decision should rest with the district court.") (emphasis added), Ozuna, 561 F.3d at 734-35, In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 177, 196-97 (2d Cir.2008) (“While it may often be useful for the government to explain its reasons for not introducing evidence earlier, a district court may consider the evidence without first finding, good cause for the government's omission or delay.") (emphasis added), United States v. Rabb, 752 F.2d 1320, 1323 (9th Cir.1984) ("We reject [a] ‘justification’ requirement ....’’), and United States v. Scott, 524 F.2d 465, 467 (5th Cir. 1975), with McRae v. United States, 420 F.2d 1283, 1288-89 (D.C.Cir.1969)..


source: Caselaw Access Project

author: RILEY, Chief Judge.

license: Public Domain

text:
    Sharilyn HAGGENMILLER, Plaintiff-Appellant v. ABM PARKING SERVICES, INC., Defendant-Appellee
    No. 15-3107
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 17, 2016
    Filed: September 14, 2016

      Counsel who presented argument on behalf of the appellant was Joni Marie Thome, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Frances Eva Baillon, of Minneapolis, MN., Matthew A. Frank, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Gregory L. Peters, of Minneapolis, MN. The following attorney(s) appeared on the appellee brief; Co-rie Jean Tarara, of Minneapolis, MN.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   RILEY, Chief Judge.

Sixty-three-year-old Sharilyn Haggen-miller was terminated from her job at ABM Parking Services,, Inc. (ABM), a parking facility management company that operates parking facilities in the Minneapolis-St. Paul International Airport (MSP airport). Haggenmiller sued her former employer in Minnesota state court, alleging she was unlawfully terminated based on age in violation of the Minnesota Human ' Rights ' Act, see Minn. Stat. § 363A.08. ABM removed the action, and the district court granted summary judgment to ABM. Haggenmiller appeals. Having appellate jurisdiction, see 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Facts

ABM operates parking garages throughout the country. On July 1, 2004, ABM entered into the Parking Enterprise Operation Management Services Agreement (agreement) with the Metropolitan Airports Commission (MAC), a Minnesota public corporation that owns, operates, and maintains the MSP airport. Under the agreement, ABM operated the MSP airport parking facilities, and MAC reimbursed ABM for “authorized expenses,” including ABM employee salaries and benefits; Pursuant to the agreement, the ABM general manager at the MSP airport was “assigned only to and work[ed] exclusively for the MAC at this location” and was to report directly to MAC.

Sharilyn Haggenmiller began working as a human resources administrative assistant for the MSP airport facility operated by ABM in August of 2004. The approximately ten to twelve ABM office employees at the MSP airport worked in a two-story office building near ;the entrance of general parking in terminal one and. supported the nearly 100 individuals working in parking operations. After a couple years, Haggenmiller started working with the auditing department. Though she kept many of her administrative responsibilities, according to Haggenmiller, her primary responsibility was auditing. Each week, the auditors received crates full of parking tickets that had been removed from cashiers’ boxes in the parking facilities. Haggenmiller’s job was to manually check the parking tickets against the cashiers’ reports and balance the daily total. Haggenmiller then created a report by manually entering the information into a computer program called Citrix. Haggen-miller’s other duties involved billing and administrative tasks — including sending bad checks to collections, answering the phone, communicating with customers about refunds, and maintaining the company bulletin board.

During Haggenmiller’s time at ABM, new technology and automation eliminated some of her duties. For .instance, ABM began (1) using a computer program that automatically populated reports Haggen-miller formerly entered manually; (2) accepting credit cards at entrance and exit ramps; and (3) operating a cash-counting machine, eliminating the need for auditors to count the cash by hand.

Haggenmiller received positive performance reviews for her work. On her December 2012 performance evaluation, she received “Excellent” rankings in the categories of dependability, communication, and working with others, and a “Good” ranking in job knowledge and skill, quality of work, and work quantity. Delana Ger-ten, Haggenmiller’s supervisor, described her as “helpful, cooperative, reliable and courteous.” Gerten wrote, “Our Audit team can count on her, with a smile, to help in any task asked of her.” In September 2011, Haggenmiller listed “work until retirement” as a short-range goal on her performance review, though she testified she did not remember doing so.

By June 2012, the last renewal term to the agreement between ABM and MAC had expired, and they were operating on a month-to-month basis. MAC hired Lumin Advisors (Lumin), an independent auditing and consulting firm, to perform an audit of MAC’s “landside operations,” which included the MSP airport parking facilities.

In the fall of 2012, ABM’s general manager left the company, and Greg Frank-hauser, who at the time was the general manager of ABM in the St. Louis airport, became interim general manager at the MSP airport. In February 2013, Frank-hauser officially became the general manager. Frankhauser knew Haggenmiller from when he worked at the MSP airport as ABM’s assistant general manager from 2008 through 2011. Frankhauser testified that as general manager he had no part in Lumin’s audit, other than being interviewed about his own job duties.

Lumin created an executive summary of the audit results, dated February 27, 2013, to present to the MAC finance group. Lu-min made several recommendations to help MAC “benefit from [new] technology,” including changes to personnel. One of Lumin’s recommendations was to eliminate the “Administrative Assistant/Auditor position” — Haggenmiller’s position — because new automation systems replaced the need to manually enter the audit reporting information. Lumin also found the “new payroll system” eliminated the need for the “ABM Payroll and Purchasing position,” then occupied by the oldest ABM employee at the MSP airport, 64-year-old Monica Martinson. Lumin additionally suggested hiring two roving shift managers, one for first shift and one for second, to better address operational and customer needs on the parking ramps and throughout the terminals. Lumin recommended having the shift managers, instead of auditors, take over the daily cash counts to “reduce[ ] the number of people involved in cash handling and free[ ] up the Auditors to audit.”

The final Lumin audit report was presented to the MAC finance group in early April 2013. Sometime afterward, Rick Decker, MAC Assistant Manager of Parking, and Arlie Johnson, Assistant Airport Director of Landside Operations — the MAC officials to whom Frankhauser reported — brought Frankhauser into Johnson’s office to discuss Lumin’s audit, the implementation of Lumin’s recommended changes, and, specifically, the elimination of the payroll and administrative assistant/auditor positions. Frankhauser testified he “had no choice” but to accept the changes MAC requested. In total, Lumin made 96 recommendations to MAC, and MAC implemented them all.

A few days later, Frankhauser asked Decker if MAC was “firm” on eliminating those positions, and Decker responded that they were and “wanted to make sure [Frankhauser] enacted all of those changes.” At the time MAC made the recommendation, they were unaware of which ABM employees were in the positions. When Frankhauser called Decker back to tell him who was in the positions, he asked to “confirm [if] there [was] any flux on this” and was told, “no.” Frankhauser then requested written documentation so he could process approval of Haggenmiller’s termination through ABM’s regional offices. Frankhauser also told Decker at some point he would check to see “if there was anything else for [Haggenmiller and Martinson], if we had something open.” Decker said that would be fine, as long as Frankhauser did not create new positions.

On April 12, 2013, Decker sent Frank-hauser an email requesting that he eliminate the audit administrative assistant and accounting clerk, begin searching for two new shift managers “as .soon as possible,” and look for a third to begin in August of that year. Frankhauser testified he began to look for open positions for Haggenmiller and Martinson beginning in May. He said he looked for “something along the lines of office work, something that they had been accustomed to,” including cashier and control room operator positions, but at the time, there was nothing open.

Frankhauser submitted a Termination Review Form for the elimination of Hag-genmiller’s position to ABM’s regional human-resources office in Cleveland, Ohio, which was approved on May 30, 2013, effective May 31. Under the section Explain Reason for Termination, the form stated, in part, “As a result of [the Lumin audit] we have been instructed by the MAC to eliminate two positions that Lumin Advis-ors felt had no impact on the parking operation,” and that the office was “following the request of the MAC and Landside Operations in the elimination of these two positions.” The form stated Haggenmiller’s current duties were the “ones that no one will specifically absorb,” including “[m]ail distribution, setting out of the daily tickets, SR entry, and other tasks [that] are currently ones in which [sic] different people do now depending on who recognizes that it needs to be done.”

On June 3, 2013, Frankhauser and Beth Sandeberg, a human resources manager for ABM, met with Haggenmiller in Frankhauser’s office. They explained her job was being eliminated due to Lumin’s audit and recommendations. Describing this meeting, Haggenmiller testified she was told she “was terminated for business reasons. I didn’t really understand. I was pretty upset.” She also said Frankhauser told her there would be “a lot more [layoffs] in your auditing department and throughout the company so you’re not the only one.” Shortly after, one of the new shift managers started. The new shift manager was more than 30 years younger than Haggenmiller.

Frankhauser and Sandeberg terminated Martinson the next day. Of all the ABM office employees who were working at the MSP airport at the time, Haggenmiller and Martinson were the two oldest. On July 15, 2013, Sandeberg sent Haggenmil-ler an email about a job opening for a cash specialist supervisor position at the ABM location in downtown Minneapolis, but Haggenmiller testified she did not apply because she could not meet the job’s lifting requirement. In addition, the deadline for submitting applications for this position had expired.

B. Procedural History

In March 2014, Haggenmiller filed a claim against ABM in the Hennepin County District Court. Haggenmiller alleged she was terminated based on age in violation of the Minnesota Human Rights Act. See Minn. Stat. § 363A.08. ABM removed the action to federal court. See 28 U.S.C. §§ 1332(a), 1441(b), and 1446. ABM subsequently moved for summary judgment. See Fed. R. Civ. P. 56. The district court granted summary judgment to ABM, and Haggenmiller timely appeals.

II. DISCUSSION

“We review de novo a district court’s grant of summary judgment.” Reynolds v. RehabCare Grp. E., Inc., 591 F.3d 1030, 1032 (8th Cir.2010). The grant of summary judgment is appropriate when, viewing the record “in the light most favorable to the to the non-moving party,” id. (citation omitted), “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a). While “‘the burden of demonstrating the absence of any genuine issue of material fact rests on the movant, a nonmovant may not rest upon mere denials or allegations, but must instead set forth' specific facts sufficient to raise a genuine issue for trial.’ ” Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir.2012) (quoting Wingate v. Gage Cty. Sch. Dist., No, 34, 528 F.3d 1074, 1078-79 (8th Cir.2008)).

The parties agree we analyze discrimination claims under the Minnesota Human Rights Act under the same framework as claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34. See Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1152 (8th Cir. 2007). “An age discrimination plaintiff may survive the defendant’s motion for summary judgment either by setting out direct evidence of discrimination or by creating an inference of discrimination under the McDonnell Douglas Corp. v. Green burden-shifting framework.” Id. (citation omitted); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 324 (Minn.1995). Without direct evidence of age discrimination, Haggenmiller must establish a prima facie case by demonstrating “ ‘(1) she is a member of a protected group; (2) she was qualified for her position; (3) she was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination.’” Doucette v. Morrison County, 763 F.3d 978, 982 (8th Cir.2014) (quoting Elam v. Regions Fin. Corp., 601 F.3d 873, 879 (8th Cir.2010)).

ABM then has the opportunity to “‘articulate a non-discriminatory, legitimate justification for its conduct, which rebuts [Haggenmiller’s] prima facie case.’ ” Doucette, 763 F.3d at 982 (quoting Elam, 601 F.3d at 879). “If [ABM] articulates such a reason, the burden returns to [Hag-genmiller] to show [ABM’s] proffered reason is pretextual.” McGinnis v. Union Pac. R.R., 496 F.3d 868, 873 (8th Cir.2007). Under the Minnesota Human Rights Act, “‘even if an employer has a legitimate reason for the [employment decision], a plaintiff may nevertheless prevail if an illegitimate reason more likely than not motivated the decision.’” LaPoint v. Family Orthodontics, P.A., 872 N.W.2d 889, 892-93 (Minn.Ct.App.2015) (alterations in original) (omitting internal, citation) (quoting McGrath v. TCF Bank Sav., 509 N.W.2d 365, 366 (Minn.1993)); cf. 29 U.S.C. § 623(a)(1) (federal age discrimination).

The district court decided it “need not consider Haggenmiller’s prima facie case, because, even assuming she satisfies it,” ABM proffered a legitimate reason for her termination based on Lumin’s study and MAC’S instructions to ABM. The district court rejected Haggenmiller’s attempts to show ABM’s reason was pretextual, concluding “no reasonable jury could ■ conclude” ABM’s “real motivation was age discrimination.”

On appeal, Haggenmiller argues the district court applied the wrong standard to her claim by treating it as a failure to transfer claim, which she concedes she did not plead. Cf., e.g., Doerhoff v. McDonnell Douglas Corp., 171 F.3d 1177, 1180-81 (8th Cir.1999) (“Although Doerhoff did not bring a failure to transfer claim .we note that this does not prevent him from attempting to use MDC’s failure to transfer him as evidence that the RIF was a pretext for age discrimination.”). Haggen-miller also contends the district court disregarded evidence that sufficiently created an inference of age discrimination on the part of ABM.

Haggenmiller does not challenge ABM’s proffered reason for her termination — that MAC directed Frankhauser to eliminate her position due to Lumin’s audit. Rather, she argues ABM was not required to terminate her, just eliminate her position. Haggenmiller claims that one of the reasons ABM used to justify her termination was that there were no other open positions throughout the ABM enterprise, which she argues was false and demonstrates pretext. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”); Betz v. Chertoff, 578 F.3d 929, 933 (8th Cir.2009) (“We agree that an employer’s false explanation may support— though it does not require — an inference of discrimination.”); Loeb v. Best Buy Co., 537 F.3d 867, 873 (8th Cir.2008) (“The falsity of a nondiscriminatory basis for the employment action may also support a finding of pretext.”). ABM contends Hag-genmiller “was clearly terminated solely because of the audit, and incidentally, there were no positions for her to work in ABM’s MSP office at the time her position was eliminated.”

Although Frankhauser was under no obligation to find alternative employment for Haggenmiller, cf. Doerhoff, 171 F.3d at 1180 n.5, he asked Decker if he could look for open positions for Haggenmiller and, after having received the direct order to eliminate Haggenmiller’s position, went back to make sure MAC was “firm” on its decision to eliminate her position. Frank-hauser then looked for all “potentially open” jobs, including ABM positions in the MSP airport, other ABM facilities, and part-time jobs. Frankhauser went so far as to continue to look for jobs for Haggenmil-ler after her termination. When asked why he would look for open jobs for Hag-genmiller and Martinson, Frankhauser explained there was “no reason not. to have folks around that, you know, that have the ability to do what they’re doing,” but ABM “didn’t have anything” open. Haggenmiller testified that during her termination meeting, she was told there were no jobs available. Haggenmiller also points out that in the section “Explain Reason for Termination,” Martinson’s termination review form — but not hers — stated, “A search both in parking and within the ABM enterprise and [sic] found no other available positions for which they [sic].”

Haggenmiller alleges there were jobs open within the ABM enterprise in the area, including an entry-level human resources administrative position at another ABM location. ABM admits there were possibly jobs open in the downtown ABM location and a janitorial position and some part-time union positions, which require seniority preferences, at the MSP airport, but maintains the availability of open positions was never provided as one of the reasons for Haggenmiller’s termination. When asked about the entry-level position, Frankhauser testified he did not pass it on to Haggenmiller and Martinson because he “would never have sent two people [Hag-genmiller and Martinson] for one job. That’s not right.”

Haggenmiller claims Frankhauser’s failure to consider her for one of the shift manager positions Lumin recommended creating “provides persuasive evidence that ABM -ivas not looking for open positions as it claimed to be.” Though a new shift manager started around the same time Haggenmiller was terminated, Frank-hauser said ABM had begun the process of interviewing for those positions in March, and Frankhauser “did not consider [Hag-genmiller and Martinson] for that because [ABM] had started the [interviewing] process.” Haggenmiller disputes the timeline, arguing Frankhauser could not have had approval to begin the search for new shift managers until he received Decker’s email on April 12. According to Frankhauser, however, he did not begin looking for open positions for Haggenmiller and Martinson until early May. Haggenmiller argues a jury would find Frankhauser’s reasons for not considering her for the shift manager position “deficient” and “simply not true.” To defeat summary judgment, Haggenmil-ler “ ‘must present affirmative evidence,’ not simply contend that a jury might disbelieve [ABM’s] evidence.” Walton v. McDonnell Douglas Corp., 167 F.3d 423, 428 (8th Cir.1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); cf. Reeves, 530 U.S. at 148, 120 S.Ct. 2097 (“[A]n employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.”).

Applying the summary judgment standard, even if Haggenmiller has at least created a weak issue of material fact as to whether there were open jobs at the time she was terminated, she nonetheless readily concedes the alleged lack of other available positions at ABM cannot reasonably be considered ABM’s sole justification for her termination. Haggenmiller admitted she was told she was being fired “for business reasons,” and that reasoning was clearly indicated on her termination review form. Ultimately, the record does not support, and we think it unreasonable to surmise, that ABM insinuated the lack of other available positions was in part why Haggenmiller was terminated. Cf. Reeves, 530 U.S. at 148, 120 S.Ct. 2097 (citing Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) (“[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration.” (emphasis added))); Taylor v. QHG of Springdale, Inc., 218 F.3d 898, 900-01 (8th Cir.2000) (reasoning only where the claimant has “produced sufficient evidence to reject the [employer’s] legitimate explanation” would “additional independent evidence of discrimination” be unnecessary to “defeat summary judgment”); see also Doerhoff, 171 F.3d at 1181.

Haggenmiller maintains she presented sufficient evidence to support an inference of age discrimination. To show ABM’s age bias, Haggenmiller offered two age-related statements she argues the district 'court ignored. First, during her deposition, Sandeberg admitted that it had “cross[ed] [her] mind” that by terminating Haggen-miller and Martinson, ABM was terminating its two oldest employees at the MSP airport. We agree with the district court’s conclusion that Sandeberg’s statement was not indicative of age discrimination. See Bashara v. Black Hills Corp., 26 F.3d 820, 824 (8th Cir.1994) (explaining such “concern ... should be regarded as a natural reaction to the ever-present threat of litigation attendant upon terminating an age-protected employee”).

Second, Haggenmiller wants us to consider a statement Frankhauser made to Martinson that the district court apparently failed to address. According to Martin-son, in early 2013, she asked Frankhauser why some of her job responsibilities were being taken away, and Frankhauser told her she would “never have to worry about [her] job,” but later told her she should consider retirement, during the time period when he was allegedly looking for other jobs for Haggenmiller and Martinson. Haggenmiller testified she knew about the statements, but was not present during either conversation and could not recall whether Frankhauser had ever made comments to any ABM employee in the MSP airport about retirement. Reasonable inquires into retirement are “not inherently discriminatory,” Doucette, 763 F.3d at 986, and we are unpersuaded that this remark demonstrates Frankhausér harbored age-related bias. See also Betz, 578 F.3d at 933-34; Cox v. Dubuque Bank & Trust Co., 163 F.3d 492, 497 (8th Cir.1998) (recognizing employers may make “reasonable” inquiries about employees’ retirement plans so long as they are not “unnecessary and excessive ... [so] as to constitute evidence of discriminatory harassment”). But cf. Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 923 (8th Cir.2000) (recognizing some “[s]tray remarks” relating to age may be relevant circumstantial evidence of age discrimination).

Haggenmiller argues the' district court misapplied the summary judgment standard by not making inferences in her favor. Specifically, she takes issue with the district court’s opinion that Haggenmiller’s positive performance reviews “suggested ABM regretted firing her and- only did so because of the Lumin study”; instead, Haggenmiller suggests her performance reviews support her theory that ABM’s decision to eliminate her was not “automatic, inevitable, or immediate.” While Frankhauser’s testimony may support either finding, it is imperative at this stage that the district court make all reasonable inferences in Haggenmiller’s favor and not weigh the evidence. See, e.g., Reeves, 530 U.S. at 150, 120 S.Ct. 2097. At the same time, we disagree with the notion that even though Haggenmiller’s position was eliminated, losing her job in the wake of the Lumin audit was not inevitable. And ABM was not obligated to find an open position for her.

Haggenmiller also asserts the district court erred by not considering the significance of the fact that she and Martinson were the oldest ABM employees at the MSP airport and were both terminated. Haggenmiller points to the district court’s statement that “nearly everybody was around the same age as Haggenmiller,” because nine of the ten ABM employees in the MSP airport were over 40, and eight were over 50 years old. Neither of these facts alone supports a conclusion one way or another that ABM discriminated on the basis of age, and we are unconvinced the district court considered the ages of everyone in the office as conclusive proof that ABM did not discriminate. See Reeves, 530 U.S. at 153, 120 S.Ct. 2097.

Finally, for the first time, Haggen-miller alleges ABM failed to disclose “the role it played in the selection of Haggen-miller and Martinson’s positions for elimination” and falsely “insisted that it had no influence or impact on Lumin’s recommendation to eliminate Haggenmiller’s position.” Because Haggenmiller did not present this argument before the district court, we do not consider it here. See Eagle Tech. v. Expander Americas, Inc., 783 F.3d 1131, 1138 (8th Cir.2015).

III. CONCLUSION

Viewing the evidence in the light most favorable to Haggenmiller, the district court did not err in granting summary judgment to ABM. Haggenmiller did not meet her burden of establishing a genuine issue of material fact that ABM’s proffered legitimate reason for her termination was pretext for age discrimination. See Dietrich, 536 N.W.2d at 325-26. We affirm.

      . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.

      . According to Greg Frankhauser, ABM’s general manager at the MSP airport, Haggen-miller’s primary responsibility was not auditing, but the data entry that came afterward once the auditors had given her the paperwork. Frankhauser stated Haggenmiller “did all kinds of miscellaneous [sic], whatever tasks came up.’’ Haggenmiller insists she was an auditor, and says her termination review form which listed'Her job title as “Administrative Assistant” was “[w]rongly titled.”

      . Due to budget constraints, ABM's search for additional shift managers was put off until 2014.

      . Haggenmiller also alleged (a) ABM retaliated against her for filing a claim for workers’ compensation benefits in violation of Minn. Stat. § 176.82; and (b) ABM terminated her because of her disability, see Minn. Stat. § 363A.08. The district court dismissed these claims in its summary judgment order, and Haggenmiller did not appeal their dismissal.

      . This standard applies to reduction-in-force (RIF) claims, where, as the district court stated, " ‘business considerations cause an employer to. eliminate one or more positions within the company,’ ” quoting Dietrich, 536 N.W.2d at 324.

      . Once Frankhauser learned Haggenmiller hired an attorney, Frankhauser testified his job search for her came "to a screeching halt." Haggenmiller likens his reaction to Smith v. URS Corp., 803 F.3d 964, 971 (8th Cir.2015), where we stated a manager’s “seemingly defensive reaction” to allegations of discrimination could support a jury’s finding of the defendant’s "desire to hide an impermissible motive.” However, in Smith, this was only part of the evidence the plaintiff presented which we found, when' taken together, sufficient to support an inference of racial discrimination. See id.- at 970-72. Furthermore, in Smith, the manager in question had falsely denied his involvement in an employee-ranking process, and the defendant never contested that allegation. Id. at 971-72.

      . Martinson filed her own claim for age discrimination against ABM that survived summary judgment. See Martinson v. ABM Parking Servs., Inc., No. 14-CV-0870, 2015 WL 4771574, at *2 (D. Minn. Aug. 13, 2015). Haggenmiller submitted excerpts from Mar-tinson’s deposition as one of her exhibits to her memorandum in opposition to summary judgment.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Billy D. THORNE, Defendant-Appellant.
    No. 15-1249
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 2, 2016
    Filed: September 15, 2016
    Counsel who represented the appellant was John P. Messina, AFPD, of Des Moines, IA.
    Counsel who represented the appellee was Daniel C. Tvedt, AUSA, of Cedar Rapids, IA. .
    Before SMITH, MELLOY, and COLLOTON, Circuit Judges.
   PER CURIAM.

A jury convicted Defendant Billy D. Thorne of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Over objection, he was found to have been previously convicted of three or more “violent felon[ies]” and was sentenced as an Armed Career Criminal, 18 U.S.C. § 924(e)(1). Thorne appeals, challenging only the Armed Career Criminal determination and resulting sentence.

Several of Thorne’s prior felony convictions were for., violating Fla. Stat. § 810.02(3) (1995), second degree burglary of a dwelling. If these convictions do not qualify as convictions for violent felonies, Thorne has not been shown to have three qualifying prior convictions' and 18 U.S.C. § 924(e)(1) should not apply.

In supplemental briefing ordered after the Supreme Court issued its opinion in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), the government concedes that Fla. Stat. § 810.02 does not qualify as a violent felony. This concession is consistent with the government’s position in briefing to the Eleventh Circuit in -United States v. Esprit, No. 14-13066 (11th Cir. July 6, 2016). In particular, the government concludes the burglary statute in question, as interpreted by the Florida Supreme Court, is overinclusive but non-divisible. It encompasses entry onto the curtilage of a building without separating entry into a building and entry onto curtilage as separate elements of different offenses.

There is no crime denominated burglary of a curtilage; the curtilage is not a separate location wherein a burglary can occur. Rather, it is an integral part of the structure or dwelling that it surrounds. Entry onto the curtilage is, for the ■ purposes of the burglary statute, entry into the structure or dwelling.

Baker v. State, 636 So.2d 1342, 1344 (Fla. 1994); see also United States v. Matthews, 466 F.3d 1271, 1274 (11th Cir. 2006) (“Florida does not consider burglary of the curtilage of a structure to be a crime distinct from burglary of that structure. ...”).

We therefore vacate Thorne’s sentence and remand for resentencing without use of the Florida convictions for second degree burglary of a dwelling for enhancement purposes under § 924(e).