United States v. Randy Lowell Hurd ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 01-1115 NISC
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Northern
v. * District of Iowa
* [NOT TO BE PUBLISHED]
Randy Lowell Hurd, *
*
Appellant. *
Submitted: June 12, 2001
Filed: November 13, 2001
Before LOKEN and HALL**, Circuit Judges, and ROSENBAUM* District Judge.
PER CURIAM.
Randy Lowell Hurd entered a conditional guilty plea to Counts I and III of a
three- count Indictment. Hurd was charged in Count I with being an unlawful user
*
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
**The Honorable Cynthia Holcomb Hall, United States Senior Circuit Judge
for the 9th Circuit, sitting by designation.
of a controlled substance in possession of an unregistered firearm, in violation of 18
U.S.C. §§ 922(g)(3) and 924(a)(2), and in Count III with possession of a firearm after
having been convicted of a crime of domestic violence, in violation of 26
U.S.C. §§ 5842, 5861(d), and 5871. Hurd now appeals.
Hurd asserts the district court erred in denying his motion to dismiss Count III,
claiming the charge should be dismissed on the ground that the predicate conviction
was not a crime of domestic violence. Mr. Hurd is incorrect. As we stated in U.S. v.
Smith, 171 F.3d 617, 620-21 (8th Cir. 1999), the United States is only required to
prove the that predicate offense had as one of its elements the use or attempted use
of physical force. Mr. Hurd’s prior offense, a violation of Iowa Code § 708.1(1),
meets this definition. Id. Hurd attempts to persuade us that his assault conviction
was based instead on Iowa Code § 708.2, which he contends is a misdemeanor crime
of domestic violence under 18 U.S.C. § 921(a)(33)(A)(ii). See Smith, 171 F.3d at
621. The district court correctly noted, however, that the charging papers in the
predicate case indicate that Hurd was charged with an assault involving actual
physical force, stating that he “did assault another and did cause bodily injury.” This
is the crime to which he pleaded guilty. Accordingly, the district court properly
denied the defendant’s motion to dismiss Count III.
Hurd also claims the district court improperly applied a two-level enhancement
for involvement of a destructive device, pursuant to U.S.S.G. § 2K2.1(b)(3). He
contends this enhancement amounts to impermissible double counting. In effect, he
asks us to revisit our decision in United States v. Rohwedder, 243 F.3d 423, 427 (8th
Cir. 2001) (holding application of the § 2K2.1(b)(3) enhancement, along with
determining defendant’s base offense level pursuant to § 2K2.1, does not constitute
impermissible double counting) . We are not empowered to revisit prior decisions
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rendered by other panels of this Court. Only the Circuit Court, en banc, may do so.
See United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997). As a result, this
panel may not grant the relief appellant seeks.
Finally, Hurd argues that his sawed-off shotgun is not among those weapons
described in the Sentencing Guidelines commentary definition of a destructive device
under § 2K2.1(b)(3). Mr. Hurd believes that destructive devices under § 2K2.1(b)(3)
do not include all firearms defined in 26 U.S.C. § 5845(a). The government contends
that it does.
We decline to reach the merits of Hurd’s argument, however, because Mr. Hurd
did not raise it in the district court. Having failed to do so, the defendant cannot now
raise this issue for the first time on appeal. U.S. v. Dixon, 51 F.3d 1376, 1383 (8th
Cir. 1995).
We affirm. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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