F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 25, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-8023
v. (D.C. No. 04-CR-118-J)
MICHAEL LEE SNYDER, (D. Wyoming)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
On March 8, 2004, Defendant went “car-hopping” with a juvenile in
Cheyenne, Wyoming, stealing various items from inside automobiles. The next
day, on another car-hopping spree, Defendant and two companions stole a pickup
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
truck and went for a joyride. Inside the truck was a Smith & Wesson revolver,
which Defendant stole. A few days later, Defendant’s sister called the police to
report that Defendant was staying in her home and had recently brought some
stolen merchandise into it. The responding officer obtained a consent to search
from Defendant’s sister and found the gun among Defendant’s personal effects.
When Defendant returned to his sister’s house, he was arrested. Defendant pled
guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). The presentence report prepared by the probation office concluded
that Defendant had three prior convictions involving “violent felonies” as defined
by the Armed Career Criminal Act (“ACCA”), and, therefore, Defendant was
subject to a mandatory minimum sentence of fifteen years under 18 U.S.C. §
924(e).
Under 924(e)(1), “a person who violates section 922(g) of [title 18] and has
three previous convictions . . . for a violent felony . . . shall be fined under this
title and imprisoned not less than fifteen years . . . .” Relying on Blakely v.
Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466
(2000), Defendant objected to the presentence report’s conclusion that he had
been convicted of three “violent felonies” for purposes of the ACCA. He argued
that this determination constituted a finding of fact that only a jury can make and
only after applying a “beyond a reasonable doubt” standard. The district court
-2-
overruled Defendant’s objection and held that, by a preponderance of the
evidence, Defendant had three prior “violent felony” convictions–two for burglary
and one for distributing a controlled substance–and sentenced Defendant to
fifteen years’ imprisonment pursuant to 18 U.S.C. § 924(e).
On appeal, Defendant again challenges his sentence as being imposed in
violation of his constitutional rights, as recently articulated by the Supreme Court
in United States v. Booker, __U.S.__, 125 S. Ct. 738 (2005). Specifically,
Defendant claims that the district court committed constitutional error when it
concluded by a preponderance of the evidence that his prior convictions were
“violent felonies” under the ACCA. A sentence enhancement under the ACCA is
a legal issue and, thus, we review it de novo. United States v. Moudy, 132 F.3d
618, 619 (10th Cir. 1998).
We agree with Defendant’s admission in his brief that “[t]here is precedent
within this Circuit against [Defendant’s] position.” Aplt. Br. at 14; see United
States v. Moore, 401 F.3d 1220 (10th Cir. 2005). 1 In Moore, citing the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), we
held that a district court’s determination that a defendant’s prior convictions
1
We note that Defendant raises this issue as a preservation technique to
possibly overturn Moore by an en banc decision from this court, or a decision by
the United States Supreme Court. Unless and until that happens, we are bound by
the precedent of this court articulated in Moore.
-3-
constituted “violent felonies” for purposes of the ACCA was a question of law to
be determined by court, and not a question of fact required to be pled in an
indictment, submitted to a jury, and proved beyond a reasonable doubt. 401 F.3d
at 1222-26. Therefore, consistent with our decision in Moore, Defendant’s
sentence pursuant to the ACCA must stand.
We AFFIRM the district court’s sentence.
Entered for the Court
Monroe G. McKay
Circuit Judge
-4-