U.S. v. Moyer, 01-8005.

• Decision Date: 13 March 2002
• Docket Number: No. 01-8005.,01-8005.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Aubrey MOYER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

282 F.3d 1311

UNITED STATES of America, Plaintiff-Appellee, v. Steven Aubrey MOYER, Defendant-Appellant.

No. 01-8005.

United States Court of Appeals, Tenth Circuit.

March 13, 2002.

COPYRIGHT MATERIAL OMITTED

James H. Barrett, Assistant Federal Defender, Cheyenne, WY, for Defendant-Appellant.

James C. Anderson, Assistant United States Attorney (Matthew H. Mead, United States Attorney; David D. Freudenthal, Former United States Attorney; and David A. Kubichek, Assistant United States Attorney (Casper, Wyoming office), with him on the briefs), District of Wyoming, Cheyenne, WY, for Plaintiff-Appellee.

Before HENRY, BALDOCK, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Appellant, Steven A. Moyer, was convicted of being a felon in possession of a firearm and sentenced to ten years' incarceration. Moyer's guidelines sentencing range was calculated by applying U.S.S.G. § 4B1.4. Believing it was bound by the mandatory provisions of § 5G1.3(a) of the United States Sentencing Guidelines ("U.S.S.G."), the district court ordered Moyer's federal sentence to run consecutively to a Wyoming state term of imprisonment. On appeal, Moyer argues that he does not qualify as an armed career offender because his three prior state felony convictions were not "crimes of violence." Moyer also argues that the district court was required to order his federal sentence to run concurrently with his undischarged Wyoming sentence pursuant to U.S.S.G. § 5G1.3(b). Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we conclude that Moyer's state convictions constitute crimes of violence and that the district court had discretion to order Moyer's sentences to run either consecutively or concurrently. Based on an issue raised by this court sua sponte, we further conclude that Moyer is subject to the mandatory sentencing enhancement of 18 U.S.C. § 924(e)(1) notwithstanding the government's agreement not to seek the enhancement. Accordingly, this court affirms in part, reverses in part, and remands for resentencing.

II. FACTUAL BACKGROUND

In 1986, Moyer pleaded guilty to one count of Third Degree Felony Sexual Assault in violation of Wyoming state law. Moyer's sentence was suspended and he received five years of probation. In 1999 Moyer was convicted of two additional state counts of Third Degree Felony Sexual Assault. As a result of the 1999 convictions, Moyer was placed on supervised probation for ten years. As part of Moyer's probation agreement, he gave the Wyoming Department of Corrections permission to search his home if his supervising probation officer had reasonable cause to believe that such a search might uncover evidence that he had committed a crime or violated the terms of his probation.

On October 18, 1999, Moyer's probation officer received notice that Moyer had tested positive for the use of marijuana. Two Wyoming probation officers conducted a search of Moyer's residence and found marijuana and five firearms. Consequently, Moyer's probation on the two 1999 felony convictions was revoked and he was sentenced to serve two concurrent state terms of three to seven years' imprisonment.

In addition to the state probation revocation, Moyer was also indicted on federal charges of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Moyer entered into a plea agreement with the government. In exchange for Moyer's guilty plea to the charge contained in the federal indictment, the government agreed, inter alia, to recommend that Moyer receive a three-level reduction in his offense level for acceptance of responsibility and further agreed not to seek any enhanced penalty pursuant to 18 U.S.C. § 924(e).¹

The district court accepted Moyer's plea and a presentence investigation report ("PSR") was prepared. The PSR concluded that Moyer qualified as an armed career offender because of his three Wyoming felony convictions for sexual assault. Consequently, Moyer's total offense level was calculated by applying U.S.S.G. § 4B1.4. Moyer's criminal history category was set at IV pursuant to U.S.S.G. § 4B1.4(c)(3) and his guidelines sentencing range was calculated at 135-168 months. Because the government did not seek the application of 18 U.S.C. § 924(e), the PSR indicated that Moyer could not be sentenced above the statutory maximum of 120 months. See 18 U.S.C. § 924(a)(2); U.S.S.G. § 5G1.1(c)(1). The PSR also relied on application note 6 to U.S.S.G. § 5G1.3 to support the recommendation that Moyer's federal sentence be imposed to run consecutively to his Wyoming state sentence.

Moyer filed timely objections to the PSR. Moyer argued that his prior Wyoming felony convictions were not crimes of violence and thus he did not qualify as an armed career offender. Moyer also argued that his federal and state sentences should not be imposed to run consecutively because the federal firearms offense was not committed while he was serving or waiting to serve a term of imprisonment. See U.S.S.G. § 5G1.3(a). The district court considered Moyer's objections but adopted the recommendations in the PSR. The court sentenced Moyer to 120 months' imprisonment, to be served consecutively to his Wyoming sentence. Moyer brought this appeal.

III. DISCUSSION

Moyer raises two issues on appeal. He argues that his three Wyoming state sexual assault convictions were not crimes of violence and thus could not be used to enhance his sentence under U.S.S.G. § 4B1.4. He also argues that the district court should have applied U.S.S.G § 5G1.3(b) and ordered his state and federal sentences to run concurrently.

A. State Felony Convictions

Moyer challenges the application of U.S.S.G. § 4B1.4 in the calculation of his guidelines sentencing range. Moyer argues that his three Wyoming felony convictions were not "crimes of violence" and thus they did not trigger the armed career criminal guideline. The question of whether Moyer's state felony convictions were crimes of violence is a legal question which this court reviews de novo. See United States v. Smith, 10 F.3d 724, 730 (10th Cir.1993).

Section 4B1.4 of the sentencing guidelines defines an armed career criminal as one "who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e)." U.S.S.G. § 4B1.4(a). The § 924(e) enhanced sentence applies to a defendant who has violated 18 U.S.C. § 922(g) and "has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The term "violent felony" is defined, inter alia, as:

any crime punishable by imprisonment for a term exceeding one year ... that —

....

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....

18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). Moyer argues that the Wyoming convictions do not fit within the definition of violent felony § 924(e)(2)(B)(ii) because under Wyoming law, third degree sexual assault is not classified as a violent crime and the elements of the crime do not require the application of or the threat of force. He also argues that there is no evidence that the Wyoming convictions involved actual physical violence.

In United States v. Coronado-Cervantes, this court concluded that a nonforcible sex offense involving a child victim and an adult offender is a crime of violence as that term is defined in U.S.S.G. § 4B1.2(a).² See 154 F.3d 1242 (10th Cir.1998). The court reached this conclusion notwithstanding the government's concession that the state statute violated by the defendant "does not have as an element the use, attempted use, or threatened use of physical force" and the district court's finding that the record contained no evidence that the defendant used or threatened to use force against the victim. See id. at 1244, 1243. This court concluded that a sexual assault of a minor "by its nature present[s] a serious potential risk of injury to [the] victim and thus should be considered a `crime of violence.'" Id. at 1245.

Like the victim in Coronado-Cervantes, the three victims involved in Moyer's state sexual assault convictions were all children under the age of twelve. Moyer attempts to distinguish Coronado-Cervantes by arguing that Third Degree Sexual Assault is not defined as a violent crime under Wyoming law. Moyer's argument is unavailing. Wyoming's classification of the crimes Moyer committed is irrelevant to our inquiry into whether those crimes involved a potential risk of physical injury to the victims. Coronado-Cervantes directly controls this issue and we conclude that Moyer's three Wyoming felony convictions involving sexual assaults on children under the age of twelve were violent felonies under the "otherwise" clause of 18 U.S.C. § 924(e)(2)(B)(ii). Thus, the district court properly applied the U.S.S.G. § 4B1.4 enhancement.

B. Consecutive or Concurrent Sentences

Section 5G1.3(a) of the sentencing guidelines provides:

If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment.

(emphasis added). At Moyer's sentencing hearing, the government argued that U.S.S.G. § 5G1.3(a) was applicable stating, "the defendant was serving a term ... where his liberty was substantially restricted by way of probation and he committed this offense. I think that, under those circumstances, 5G1.3(a) certainly, arguably, appl[ies] to the sentence." The district court relied on § 5G1.3(a) to conclude that Moyer's federal sentence must be imposed to run consecutively to his...