United States v. Snyder, 10th Cir. (2005)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
November 25, 2005

Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
No. 05-8023
(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This order and judgment is not binding precedent, except under the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, Defendants 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 Defendants sister and found the gun among Defendants personal effects.
When Defendant returned to his sisters 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 reports 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 Defendants objection and held that, by a preponderance of the

evidence, Defendant had three prior violent felony convictionstwo for burglary
and one for distributing a controlled substanceand 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 Defendants admission in his brief that [t]here is precedent
within this Circuit against [Defendants] position. Aplt. Br. at 14; see United
States v. Moore, 401 F.3d 1220 (10th Cir. 2005). 1 In Moore, citing the Supreme
Courts decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), we
held that a district courts determination that a defendants prior convictions
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.
1
-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, Defendants
sentence pursuant to the ACCA must stand.
We AFFIRM the district courts sentence.
Entered for the Court
Monroe G. McKay
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

November 25, 2005

UNITED STATES OF AMERICA,

MICHAEL LEE SNYDER,

overruled Defendants objection and held that, by a preponderance of the

We note that Defendant raises this issue as a preservation technique to

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