United States v. Jackson ( 2009 )


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  •                                                                           FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    June 17, 2009
    Elisabeth A. Shumaker
    TENTH CIRCUIT                      Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 08-3317
    v.
    (D.C. No. 08-CR-20051-JWL-1)
    (D. Kan.)
    CHRISTOPHER JACKSON,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.
    In this direct criminal appeal, Defendant-Appellant Christopher Jackson
    challenges the calculation of his sentencing guideline range. Specifically,
    Jackson asserts that the district court erred in applying U.S.S.G. § 4B1.1 to
    calculate his advisory sentencing range, after determining that Jackson qualified
    as a career offender. Having jurisdiction to consider this appeal under 18 U.S.C.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment is
    not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    § 3742(a) and 
    28 U.S.C. § 1291
    , we AFFIRM.
    I. BACKGROUND
    Jackson pled guilty to being an inmate found in possession of a prohibited
    object—in this case, two wooden shanks—in violation of 
    18 U.S.C. § 1791
    (a)(2). 1
    In calculating Jackson’s advisory sentencing range for that conviction, the
    presentence report (“PSR”) indicated that Jackson qualified as a career offender
    under U.S.S.G. § 4B1.1 (November 1, 2007). Although Jackson objected to that
    determination, the district court ultimately adopted the PSR’s calculations. Based
    upon Jackson’s status as a career offender under § 4B1.1, the district court
    calculated Jackson’s offense level to be 14 and his criminal history category to be
    VI, resulting in an advisory sentencing range of 37 to 46 months in prison. The
    district court imposed a sentence at the lowest end of that range, 37 months, to
    run consecutively to the sentence Jackson was already serving when he committed
    the instant offense.
    II. STANDARD OF REVIEW
    This court reviews de novo the district court’s ultimate determination under
    U.S.S.G. § 4B1.1 that Jackson was a career offender, and any underlying factual
    1
    
    18 U.S.C. § 1791
    (a)(2) provides that “[w]hoever . . . being an inmate of a
    prison, makes, possesses, or obtains, or attempts to obtain, a prohibited object;
    shall be punished as provided in subsection (b) of this section.” Because
    Jackson’s offense involved “a weapon (other than a firearm or destructive
    device),” subsection (b) provided for a fine or “imprisonment for not more than 5
    years, or both.” 
    Id.
     § 1791(b)(3), (d)(1)(B).
    2
    findings for clear error. See United States v. Patterson, 
    561 F.3d 1170
    , 1172
    (10th Cir. 2009).
    III. ANALYSIS
    Under U.S.S.G. § 4B1.1(a),
    [a] defendant is a career offender if (1) the defendant was at least
    eighteen years old at the time the defendant committed the instant
    offense of conviction; (2) the instant offense of conviction is a felony
    that is either a crime of violence or a controlled substance offense; and
    (3) the defendant has at least two prior felony convictions of either a
    crime of violence or a controlled substance offense.
    On appeal, Jackson challenges only the district court’s determination as to the
    second factor of this three-pronged inquiry, asserting that the instant offense,
    possessing a prohibited object in prison, should not be considered a crime of
    violence.
    Section 4B1.1 defines “crime of violence” by referring to U.S.S.G. § 4B1.2.
    See U.S.S.G. § 4B1.1 app. n.1. And § 4B1.2(a) defines “crime of violence” to
    mean
    any offense under federal or state law, punishable by imprisonment for
    a term exceeding one year, that—
    (1) has as an element the use, attempted use, or threatened
    use of physical force against the person of another, or
    (2) is burglary of a dwelling, arson, or extortion, involves
    use of explosives or otherwise involves conduct that
    presents a serious potential risk of physical injury to
    another.
    Applying a similarly worded statute—the Armed Career Criminal Act
    3
    (“ACCA”), see 
    18 U.S.C. § 924
    (e)(1)—this court has already held that a
    conviction for possessing a deadly weapon in prison qualifies as a “violent
    felony.” See United States v. Zuniga, 
    553 F.3d 1330
    , 1332, 1336 (10th Cir. 2009)
    (applying Begay v. United States, 
    128 S. Ct. 1581
     (2008), to a Texas conviction
    for possessing a deadly weapon in a penal institution), petition for cert. filed
    (U.S. Apr. 16, 2009) (No. 08-9944). 2 And, “[b]ecause of the similarity in
    language between [the ACCA] and U.S.S.G. § 4B1.2(a), this court has
    occasionally looked to precedent under one of these provisions as guidance under
    the other provision in determining whether a conviction qualifies as a crime of
    violence.” United States v. West, 
    550 F.3d 952
    , 960 n.5 (10th Cir. 2008); see
    also United States v. Serafin, 
    562 F.3d 1105
    , 1113 n.9 (10th Cir. 2009) (noting
    similarity between the definitions of a violent felony under the ACCA and
    2
    Similar to U.S.S.G. § 4B1.2(a), the ACCA defines “violent felony,” in
    pertinent part, to be
    any crime punishable by imprisonment for a term exceeding one
    year . . . that—
    (i) has as an element the use, attempted use, or threatened
    use of physical force against the person of another, or
    (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). This court, in Zuniga, held that a Texas conviction for
    possessing a deadly weapon in a penal institution was a violent felony under the
    ACCA’s residual clause, an offense that “otherwise involves conduct that presents
    a serious potential risk of physical injury to another.” See 
    553 F.3d at 1333
    .
    4
    U.S.S.G. § 4B1.2(a)); see also United States v. Rooks, 
    556 F.3d 1145
    , 1149-50
    (10th Cir. 2009) (noting that, in light of the application note accompanying
    U.S.S.G. § 4B1.2(a), that guideline provision might warrant an even broader
    definition of violent felony than that given under the ACCA), petition for cert.
    filed (U.S. June 9, 2009) (No. 08-10791). Jackson acknowledges this authority
    contrary to the position he takes in this case, but he seeks to preserve this issue
    for future review.
    IV. CONCLUSION
    For these reasons, we AFFIRM Jackson’s sentence. 3
    ENTERED FOR THE COURT
    David M. Ebel
    Circuit Judge
    3
    In doing so, we need not address the Government’s alternative argument
    for affirmance, that the categorical approach does not apply when considering
    whether the instant offense of conviction was a violent felony and that the
    specific facts underlying Jackson’s conviction at issue here establish that it was,
    in fact, a violent felony.
    5
    

Document Info

Docket Number: 08-3317

Judges: Hartz, Ebel, O'Brien

Filed Date: 6/17/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024