1

The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1324

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Jaime Lee Orozco, *

* [UNPUBLISHED]

Appellant. *

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Submitted: October 16, 2007

 Filed: December 6, 2007 

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Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges. 

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PER CURIAM.

Jaime Lee Orozco pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1

 sentenced him

to 235 months’ imprisonment. Orozco appeals his sentence. We affirm.
2

Orozco initially objected to the determination that these two convictions,

entered on the same day, were two separate convictions under the ACCA. However,

he withdrew this objection at sentencing.

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On March 24, 2006, Orozco and an accomplice entered a residence in Sioux

City, Iowa, and threatened the occupants with a gun. The police arrived after the

accomplice escaped and arrested Orozco. Orozco was indicted by a federal grand jury

and charged with being a felon in possession of a firearm. He later pled guilty to that

offense.

At the plea hearing, Orozco was informed that the maximum sentence for this

offense was ten years’ imprisonment. See 18 U.S.C. § 924(a)(2). Before the

sentencing hearing, the presentence investigation report (“PSR”) determined that

Orozco’s two prior Iowa convictions for felony lascivious acts with a child in

violation of Iowa Code § 709.8 constituted violent felonies under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Orozco did not object to the

determination that these convictions qualified as violent felonies under the ACCA.2

As noted in the PSR, these two convictions, along with a prior conviction for felony

assault, qualified Orozco as an armed career criminal, requiring a statutory minimum

sentence of fifteen years’ imprisonment and a possible maximum sentence of life. See

18 U.S.C. § 924(e)(1). Orozco also was classified as an armed career criminal

pursuant to § 4B1.4 of the United States Sentencing Guidelines. As a result, the PSR

determined Orozco’s advisory sentencing guidelines range to be 188 to 235 months’

imprisonment. 

At the beginning of the sentencing hearing, the district court first asked

Orozco’s attorney if she had the opportunity to review the PSR with Orozco. After

she responded that she and Orozco had reviewed the PSR, the court explained to

Orozco that his classification as an armed career criminal increased his maximum

possible sentence. The court then gave him an opportunity to withdraw his guilty

plea. With full knowledge that his previous convictions classified him as an armed
3

Even if Orozco had not waived this argument, the district court did not plainly

err in sentencing him as an armed career criminal because his prior convictions for

felony lascivious acts with a child constitute violent felonies under the ACCA and the

sentencing guidelines. See United States v. Rodriguez, 979 F.2d 138, 141 (8th Cir.

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career criminal and that he faced a longer sentence based on that classification, Orozco

chose not to withdraw his guilty plea. 

Orozco now argues that the district court plainly erred when it sentenced him

as an armed career criminal based on his two prior convictions for felony lascivious

acts with a child. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005)

(stating that this court reviews an argument not properly preserved for plain error). He

contends that the acts between him, then eighteen years old, and a thirteen-year-old

girl were not violent felonies because the girl consented and acts between two such

teenagers do not pose a serious potential risk of physical injury. The Government

argues that Orozco waived this argument by maintaining his guilty plea when given

an opportunity to withdraw it after learning of his armed career criminal status and the

resulting sentencing enhancements.

We agree with the Government that Orozco waived his argument by

maintaining his guilty plea with full knowledge that he was facing a sentence based

on his classification as an armed career criminal. See United States v. Cook, 447 F.3d

1127, 1128 (8th Cir. 2006) (holding that a defendant waived the right to contest his

sentence based on an enhancement when he pled guilty and “explicitly and voluntarily

expos[ed] himself to a specific sentence”); see also United States v. Nguyen, 46 F.3d

781, 783 (8th Cir. 1995); United States v. Durham, 963 F.2d 185, 187 (8th Cir. 1992).

Before the district court sentenced Orozco, it explained to him that he would face a

more severe sentence based on his classification as an armed career criminal and gave

him the opportunity to withdraw his guilty plea. With this knowledge, Orozco

decided to maintain his guilty plea. Therefore, he waived his right to appeal his

resulting sentence based on his status as an armed career criminal.3
1992) (holding that a conviction for a lascivious act with a child in violation of Iowa

Code § 709.8 was a crime of violence); see also United States v. Eastin, 445 F.3d

1019, 1022 (8th Cir. 2006) (noting that incestuous intercourse between an adult and

a minor child is a violent felony under the ACCA).

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Accordingly, we affirm the district court’s sentence.

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