U.S. v. West, No. 06-4284.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtEbel
Citation550 F.3d 952
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jeremiah WEST, Defendant-Appellant.
Decision Date10 December 2008
Docket NumberNo. 06-4284.
550 F.3d 952
UNITED STATES of America, Plaintiff-Appellee,
v.
Jeremiah WEST, Defendant-Appellant.
No. 06-4284.
United States Court of Appeals, Tenth Circuit.
December 10, 2008.

[550 F.3d 954]

Submitted on the briefs:*

James A. Valdez of James A. Valdez, LLC, Salt Lake City, UT, for Defendant-Appellant Jeremiah West.

Brett L. Tolman, United States Attorney, and Karin M. Fojtik, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee United States of America.

[550 F.3d 955]

Before BRISCOE, EBEL and McCONNELL, Circuit Judges.

EBEL, Circuit Judge.


Defendant-Appellant Jeremiah West received a 235-month sentence for his conviction for being a previously-convicted felon in possession of a firearm. On appeal, he challenges that sentence, primarily on two grounds. First, West argues that the district court erred in concluding that he was subject to a mandatory minimum fifteen-year sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). To resolve this issue, we apply the Supreme Court's recent decision in Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and affirm the district court's determination.

Second, West argues that in calculating his advisory guideline range under the sentencing guidelines, the district court erred in applying three enhancements that increased his offense level by twelve. Although the presentence report ("PSR") contained facts supporting the application of these three enhancements, West adequately disputed those facts at sentencing. Thus, the district court was obligated, under Fed.R.Crim.P. 32(i)(3)(B), either to rule on those disputes or explain why the disputed facts were not relevant to sentencing West. Because the court failed to meet its Rule 32(i)(3)(B) fact-finding obligation, we remand for further proceedings.

I. Background

On August 9, 2005, West stopped his car at a gas station in Lehi, Utah. During the stop, a woman accompanying West told the gas station owner that she was being kidnapped. The owner called police.

When officers arrived, they used their cars to block West's vehicle and prevent him from leaving. As the officers tried to question him, West put his car into reverse and quickly backed up, hitting the building. West then drove his car forward and ran into one of the police cars blocking his path. He continued to alternate driving his car forward and back, repeatedly hitting both the building and the police vehicles blocking his escape. West also floored the accelerator and attempted to use his car to shove one of the police cars out of his way. West continued these efforts to escape until one of the officers drew his weapon and pointed it at West. Even as officers attempted to restrain him physically, West continued to resist.

After arresting West, officers found a fully loaded 12-gauge shotgun in the car, between the driver's seat and the center console. Officers also found a baggie of methamphetamine in the car, and a large bag of marijuana hidden between the car's coolant reservoir and the engine firewall.

The United States indicted West on four counts: (1) being a previously convicted felon in possession of a firearm and ammunition, (2) being a person who is addicted to, and an unlawful user of, controlled substances, who knowingly possesses a firearm and ammunition, (3) possessing marijuana with the intent to distribute it, and (4) possessing methamphetamine. In exchange for the Government's agreement to drop the other three charges, West pled guilty to one count of being a previously convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).1 In

550 F.3d 956

pleading guilty to this charge, West admitted, among other things, that he had tried to evade police, he knowingly possessed the shotgun found in his car, and he had previously been convicted of a felony.

West faced up to ten years in prison on the felon-in-possession conviction. See 18 U.S.C. § 924(a)(2). But before he entered his guilty plea, the Government notified West that it would seek to enhance that sentence under the ACCA. At sentencing, the district court determined that West qualified as an armed career criminal under the ACCA, 18 U.S.C. § 924(e). As such, he faced a statutory mandatory minimum fifteen-year, or 180-month, sentence. See id. § 924(e)(1).2 Moreover, the PSR calculated West's offense level to be 33 and his criminal history category to be VI, resulting in an advisory guideline imprisonment range of between 235 and 293 months. The district court imposed a sentence at the lowest end of that range, 235 months. West appeals, challenging that sentence. We have jurisdiction to consider this appeal under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

II. Discussion
A. Whether West qualifies as an armed career offender under the ACCA

West challenges the district court's conclusion that his prior convictions make him an armed career offender under the ACCA. A defendant convicted of violating 18 U.S.C. § 922(g) qualifies as an armed career offender if he "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); see also James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1590-91, 167 L.Ed.2d 532 (2007). In this case, the district court determined that West had three qualifying convictions: 1) a 1999 Utah felony conviction for engaging in a criminal enterprise; 2) a 2000 Utah felony conviction for burglary of a dwelling; and 3) a 2001 Utah felony conviction for failing to stop at a police officer's command. On appeal, West argues that neither the criminal-enterprise nor the failure-to-stop conviction is sufficient to qualify him as an armed career criminal.

To the extent that West faults the district court for failing to find the factual existence of these predicate convictions by a preponderance of the evidence, we reject that argument. The PSR set forth facts establishing the existence of these prior convictions, as well as the details underlying them. And in the district court, West never challenged the PSR on this basis. "Criminal Procedure Rule 32 requires the defendant to affirmatively point out any fact in the PSR that he contends is inaccurate. Absent an objection to the PSR, the district court `may accept any undisputed portion of the presentence report as a finding of fact.' Fed. R.Crim.P. 32(i)(3)(A)." United States v. Harris, 447 F.3d 1300, 1306 (10th Cir.

550 F.3d 957

2006); see also United States v. Avalos, 506 F.3d 972, 979-80 (10th Cir.2007) (noting that "a defendant must make a showing that the information in the PSR is unreliable and articulate the reasons why the facts contained therein are untrue or inaccurate" (quotation marks, alterations omitted)), petition for cert. filed, (U.S. Mar. 21, 2008) (No. 07-10063).3 In this case, West circumvented any need for the Government to present additional evidence during the sentencing proceeding in support of the factual existence of these prior convictions by failing to object to the information regarding these convictions already contained in the PSR. See Chee, 514 F.3d at 1115; United States v. Overholt, 307 F.3d 1231, 1251-52 (10th Cir.2002); United States v. Kay, 961 F.2d 1505, 1507 (10th Cir.1992).

On appeal, West can still argue that these convictions, as a matter of law, fail to qualify him as an armed career criminal. See United States v. Fell, 511 F.3d 1035, 1037 (10th Cir.2007). In addressing that argument and determining whether a prior conviction falls under the ACCA, we apply a "categorical approach," generally looking "only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction." James, 127 S.Ct. at 1593-94 (quotation omitted). "That is, we consider whether the elements of the offense are of the type that would justify its inclusion" within the ACCA, "without inquiring into the specific conduct of this particular offender." Id. at 1594. To satisfy this categorical approach, it is not necessary "that every conceivable factual offense covered by a statute" fall within the ACCA. Id. at 1597. "Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case," qualifies under the ACCA as a violent felony or a serious drug offense. Id.; see also Fell, 511 F.3d at 1039-40.

If, in the ordinary case, a criminal statute proscribes conduct broader than that which would satisfy the ACCA's definition of a violent felony or serious drug offense, a federal court may then also look at the charging documents and documents

550 F.3d 958

of conviction to determine whether the defendant in a particular case was convicted of an offense that falls within the ACCA. See Shepard v. United States, 544 U.S. 13, 15-18, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 577-78, 598-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). We have referred to this as a "modified categorical" approach. See United States v. Zuniga-Soto, 527 F.3d 1110, 1119-20 (10th Cir. 2008).

As previously stated, West does not challenge the district court's conclusion that his prior burglary conviction qualifies as a violent felony under the ACCA. But he does dispute that his prior convictions for engaging in a criminal enterprise and for failing to stop at an officer's command fall within the ACCA.

1. West's Utah felony conviction for a criminal enterprise

The PSR indicated that, in January 1999, West pled guilty to engaging in a criminal enterprise, a second-degree felony under Utah law. The PSR further indicated that, according to "[c]ourt documents," that conviction resulted after police stopped a car West was driving and found in the car "a jewelry box containing two empty bags ... and three one-gram...

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64 practice notes
  • Welch v. U.S.A, No. 08-3108.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 4, 2010
    ...not a violent felony). 21. See Wise, 597 F.3d 1141, 1147; Young, 580 F.3d at 377-78; Harrimon, 568 F.3d at 534-35; United States v. West, 550 F.3d 952, 971 (10th Cir.2008). But see United States v. Tyler, 580 F.3d 722, 726 (8th Cir.2009); Harrison, 558 F.3d at 1295. 22. Mr. Welch pleaded gu......
  • United States v. Dancy, No. 09–2628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 13, 2011
    ...in physical injury to someone at any given time, but which always has the serious potential to do so.’ ”) (quoting United States v. West, 550 F.3d 952, 963 (10th Cir.2008) (overruled on other grounds by United States v. McConnell, 605 F.3d 822 (10th Cir.2010))). It is enough that the typica......
  • U.S. v. Walker, No. 17-4103
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 25, 2019
    ...the former situation, i.e., where the sentencing court’s discretion was not specifically constrained.In United States v. West ("West I "), 550 F.3d 952 (10th Cir. 2008), for example, we remanded for resentencing in light of a district court’s failure to make factual findings in response to ......
  • United States v. Lewis, No. CR 08-0057 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 21, 2019
    ...conduct of this particular offender."United States v. Serafin, 562 F.3d at 1107-08 (alteration in original)(quoting United States v. West, 550 F.3d 952, 957 (10th Cir. 2008) ). "The modified categorical approach applies when the statute is ‘divisible’; that is, when it ‘lists multiple, alte......
  • Request a trial to view additional results
64 cases
  • Welch v. U.S.A, No. 08-3108.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 4, 2010
    ...not a violent felony). 21. See Wise, 597 F.3d 1141, 1147; Young, 580 F.3d at 377-78; Harrimon, 568 F.3d at 534-35; United States v. West, 550 F.3d 952, 971 (10th Cir.2008). But see United States v. Tyler, 580 F.3d 722, 726 (8th Cir.2009); Harrison, 558 F.3d at 1295. 22. Mr. Welch pleaded gu......
  • United States v. Dancy, No. 09–2628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 13, 2011
    ...in physical injury to someone at any given time, but which always has the serious potential to do so.’ ”) (quoting United States v. West, 550 F.3d 952, 963 (10th Cir.2008) (overruled on other grounds by United States v. McConnell, 605 F.3d 822 (10th Cir.2010))). It is enough that the typica......
  • U.S. v. Walker, No. 17-4103
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 25, 2019
    ...the former situation, i.e., where the sentencing court’s discretion was not specifically constrained.In United States v. West ("West I "), 550 F.3d 952 (10th Cir. 2008), for example, we remanded for resentencing in light of a district court’s failure to make factual findings in response to ......
  • United States v. Lewis, No. CR 08-0057 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 21, 2019
    ...conduct of this particular offender."United States v. Serafin, 562 F.3d at 1107-08 (alteration in original)(quoting United States v. West, 550 F.3d 952, 957 (10th Cir. 2008) ). "The modified categorical approach applies when the statute is ‘divisible’; that is, when it ‘lists multiple, alte......
  • Request a trial to view additional results

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