## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 13 2002 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. No. 01-8005 STEVEN AUBREY MOYER, Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D.C. No. 00-CR-119-D)
James H. Barrett, Assistant Federal Defender, Cheye nne, Wyoming, for Defendant-Appellant. James C. Anderson, Assistant United States Attorney(Matthew H. Mead, United States Attorney; David D. Freudenthal, Former Unite d States Attorney; and David A. Kubichek, Assistant United States Attorney (Casp er, Wyoming office), with him on the briefs), District of Wyoming, Cheyenne, Wyoming, for PlaintiffAppellee.

Before HENRY , BALDOCK , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.-2-

I. INTRODUCTION Appellant, Steven A. Moyer, was convicted of being a felon in possession of a firearm and sentenced to ten years’ incarcerat ion. Moyer’s guidelines sentencing range was calculated by applying U.S.S.G . § 4B1.4. Believing it was bound by the mandatory provisions of § 5G1.3(a) of the United States Sentencing Guidelines (“U.S.S.G.”), the district court orderedMoyer’s federal sentence to run consecutively to a Wyoming state term of impris onment. On appeal, Moyer argues that he does not qualify as an armed career offender because his three prior state felony convictions were not “crimes of violence.” Moyer also argues that the district court was required to order his f ederal sentence to run concurrently with his undischarged Wyoming sentence pursuant to U.S.S.G. § 5G1.3(b). Exercising jurisdiction pursuant to 28 U .S.C. § 1291 and 18 U.S.C. § 3742(a), we conclude that Moyer’s state convictions constitute crimes of violence and that the district court had discretion to orderMoyer’s sentences to run either consecutively or concurrently. Based on an issue raised by this court sua sponte , we further conclude that Moyer is subject to the mandatory sentencing enhancement of 18 U.S.C. § 924(e)(1) notwithstandin g the government’s agreement not to seek the enhancement. Accordingly, this court affirms in part,

reverses in part, and remands for resentencing.-3-

II. FACTUAL BACKGROUND In 1986, Moyer pleaded guilty to one count of ThirdDegree Felony Sexual Assault in violation of Wyoming state law. Moyer’s sentence was suspended and he received five years of probation. In 1999, Moye r was convicted of two additional state counts of Third Degree Felony Sexu al Assault. As a result of the 1999 convictions, Moyer was placed on supervised pr obation for ten years. As part of Moyer’s probation agreement, he gave the Wy oming Department of Corrections permission to search his home if his su pervising probation officer had reasonable cause to believe that such a search might uncover evidence that he had committed a crime or violated the terms of his probation. On October 18, 1999, Moyer’s probation officer rece ived notice that Moyer had tested positive for the use of marijuana. Two Wyoming probation officers conducted a search of Moyer’s residence and found m arijuana and five firearms. Consequently, Moyer’s probation on the two 1999 fel ony convictions was revoked and he was sentenced to serve two concurren t state terms of three to seven years’ imprisonment. In addition to the state probation revocation, Moye r was also indicted on federal charges of being a felon in possession of afirearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Moyer entered i nto a plea agreement with the government. In exchange for Moyer’s guilty plea to the charge contained in the1 A copy of the plea agreement was not included in th e appellate record but

the parties do not dispute either its existence or its terms. -4- federal indictment, the government agreed, inter alia , to recommend that Moyer receive a three-level reduction in his offense leve l for acceptance of responsibility and further agreed not to seek any e nhanced penalty pursuant to 18 U.S.C. § 924(e). 1 The district court accepted Moyer’s plea and a pres entence investigation report (“PSR”) was prepared. The PSR concluded that Moyer qualified as an armed career offender because of his three Wyoming felony convictions for sexual assault. Consequently, Moyer’s total offens e level was calculated by applying U.S.S.G. § 4B1.4. Moyer’s criminal history category was set at IV pursuant to U.S.S.G. § 4B1.4(c)(3) and his guidelin es sentencing range was calculated at 135-168 months. Because the governme nt did not seek the application of 18 U.S.C. § 924(e), the PSR indicate d that Moyer could not be sentenced above the statutory maximum of 120 months. See 18 U.S.C. § 924(a)(2); U.S.S.G. § 5G1.1(c)(1). The PSR also re lied on application note 6 to U.S.S.G. § 5G1.3 to support the recommendation thatMoyer’s federal sentence be imposed to run consecutively to his Wyoming stat e sentence. Moyer filed timely objections to the PSR. Moyer ar gued that his prior Wyoming felony convictions were not crimes of viole nce and thus he did not-5-

qualify as an armed career offender. Moyer also ar gued that his federal and state sentences should not be imposed to run consecutivel y because the federal firearms offense was not committed while he was serving or waiting to serve a term of imprisonment. See U.S.S.G. § 5G1.3(a). The district court considere d Moyer’s objections but adopted the recommendations in the PSR. The court sentenced Moyer to 120 months’ imprisonment, to be served consecutively to his Wyoming sentence. Moyer brought this appeal.
III. DISCUSSION Moyer raises two issues on appeal. He argues that his three Wyoming state sexual assault convictions were not crimes of viole nce and thus could not be used to enhance his sentence under U.S.S.G. § 4B1.4. He also argues that the district court should have applied U.S.S.G. § 5G1.3(b) and o rdered his state and federal sentences to run concurrently. A. State Felony Convictions Moyer challenges the application of U.S.S.G. § 4B1. 4 in the calculation of his guidelines sentencing range. Moyer argues thathis three Wyoming felony convictions were not “crimes of violence” and thus they did not trigger the armed career criminal guideline. The question of whetherMoyer’s state felony convictions were crimes of violence is a legal ques tion which this court reviews de novo

. See United States v. Smith , 10 F.3d 724, 730 (10th Cir. 1993).-6-

Section 4B1.4 of the sentencing guidelines defines an armed career criminal as one “who is subject to an enhanced sent ence under the provisions of 18 U.S.C. § 924(e).” U.S.S.G. § 4B1.4(a). The § 9 24(e) enhanced sentence applies to a defendant who has violated 18 U.S.C. § 922(g) and “has three previous convictions by any court referred to in se ction 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) . The term “violent felony” is defined, inter alia , as: any crime punishable by imprisonment for a term exc eeding one year . . . that—

. . . . (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)(ii) (emphasis added). Moy er argues that the Wyoming convictions do not fit within the definition of vio lent felony set out in 18 U.S.C. § 924(e)(2)(B)(ii) because under Wyoming law, thirddegree sexual assault is not classified as a violent crime and the elements of t he crime do not require the application of or the threat of force. He also arg ues that there is no evidence that the Wyoming convictions involved actual physical vi olence.
In United States v. Coronado-Cervantes , this court concluded that a nonforcible sex offense involving a child victim an d an adult offender is a crime2 For purposes relevant to this case, the definition of “crime of violence”

under U.S.S.G. § 4B1.2(a)(2) is identical to the de finition of “violent felony” found at 18 U.S.C. § 924(e)(2)(B)(ii). -7- of violence as that term is defined in U.S.S.G. § 4B1.2(a). 2 See 154 F.3d 1242 (10th Cir. 1998). The court reached this conclusio n notwithstanding the government’s concession that the state statute viol ated by the defendant “does not have as an element the use, attempted use, or threatened use of physical force” and the district court’s finding that the record co ntained no evidence that the defendant used or threatened to use force against the victim. See id . at 1244, 1243. This court concluded that a sexual assault o f a minor “by its nature present[s] a serious potential risk of injury to [t he] victim and thus should be considered a ‘crime of violence.’” Id . at 1245. Like the victim in Coronado-Cervantes , the three victims involved in Moyer’s state sexual assault convictions were all c hildren under the age of twelve. Moyer attempts to distinguish Coronado-Cervantes by arguing that Third Degree Sexual Assault is not defined as a violent c rime under Wyoming law. Moyer’s argument is unavailing. Wyoming’s classifi cation of the crimes Moyer committed is irrelevant to our inquiry into whetherthose crimes involved a potential risk of physical injury to the victims. Coronado-Cervantes directly controls this issue and we conclude that Moyer’s th ree Wyoming felony convictions involving sexual assaults on children u nder the age of twelve were-8-

violent felonies under the “otherwise” clause of 18 U.S.C. § 924(e)(2)(B)(ii). Thus, the district court properly applied the U.S.S .G. § 4B1.4 enhancement.
B. Consecutive or Concurrent Sentences Section 5G1.3(a) of the sentencing guidelines provi des: If the instant offense was committed while the defe ndant was serving a term of imprisonment (including work release, fur lough, or escape status) or after sentencing for, but before commenc ing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment. (emphasis added). At Moyer’s sentencing hearing, t he government argued that U.S.S.G. § 5G1.3(a) was applicable stating, “the de fendant was serving a term . . . where his liberty was substantially restricted byway of probation and he committed this offense. I think that, under those circumstances, 5G1.3(a) certainly, arguably, appl[ies] to the sentence.” T he district court relied on § 5G1.3(a) to conclude that Moyer’s federal sentence must be imposed to run consecutively to his undischarged Wyoming state sen tence. Moyer argues that the term of probation he was serv ing when he committed the federal firearms offense does not constitute a term of imprisonment under § 5G1.3(a). The government concedes in this appeal t hat U.S.S.G. § 5G1.3(a) does not apply in situations where the defendant commits a federal offense while he is serving a state term of probation. Although the ca se upon which the government3 See United States v. Cofske , 157 F.3d 1, 1-2 (1st Cir. 1998). -9- bases its concession is not binding authority in this circuit, 3 this court has recently concluded that “an undischarged term of pr obation is not an ‘undischarged term of imprisonment’ as that phrase is used in U.S.S.G. § 5G1.3.” United States v. Tisdale , 248 F.3d 964, 976 (10th Cir. 2001). Thus, we agr ee with the parties that the district court erroneously believed it was required by U.S.S.G. §5G1.3(a) to order Moyer’s federal and state sentences to run consecutively. Moyer next argues that the district court erred whe n it refused to apply U.S.S.G. § 5B1.3(b) and order his sentences to run concurrently. Because this issue involves the interpretation and application o f the sentencing guidelines, we review it de novo

. See United States v. Contreras , 210 F.3d 1151, 1152 (10th Cir. 2000). Section 5B1.3(b) provides: If subsection (a) does not apply, and the undischar ged term of imprisonment resulted from offense(s) that have bee n fully taken into account in the determination of the offense le vel for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonme nt. (emphasis added). Moyer asserts that § 5G1.3(b) ap plies because his Wyoming convictions were fully taken into account when the court applied U.S.S.G. § 4B1.4 to determine his guidelines offense level and criminal history category. He argues that the district court was therefore req uired to order his federal term-10-

of imprisonment to run concurrently to his undischarged state term pursuant to § 5G1.3(b). We agree with the government that § 5G1.3(b) does n ot apply. This court has concluded that “U.S.S.G. § 5G1.3(b)’s central a im is to ensure no defendant is punished twice for the same crime.” Contreras , 210 F.3d at 1153 (involving a defendant whose offense level was calculated by app lying the § 4B1.1 career offender guideline). Application note 2 to U.S.S.G . § 5G1.3 indicates that § 5G1.3(b) applies only when the two convictions are based on the same conduct or course of conduct. See U.S.S.G. § 5G1.3, cmt. n.2 (indicating that § 5G1. 3(b) applies when the defendant is prosecuted in both fe deral and state court for the same course of conduct and the conduct prosecuted b y the state has been taken into account under the federal sentencing guideline s as relevant conduct). Thus, § 5G1.3(b) applies only if Moyer’s state and federa l convictions involved the same course of conduct. See United States v. Johnson , 40 F.3d 1079, 1083 (10th Cir. 1994) (refusing to apply § 5G1.3(b) because th e “there [was] no indication in the record that the conduct underlying Defendant ’s state sentences was considered as relevant conduct to determine the off ense level for Defendant’s federal sentence”); accord United States v. Reyes-Lugo , 238 F.3d 305, 308 (5th Cir. 2001) ; United States v. Garcia-Hernandez , 237 F.3d 105, 110 (2d Cir. 2000); United States v. Gondek , 65 F.3d 1, 4 (1st Cir. 1995).4 Application note 6 provides: If the defendant was on federal or state probation, parole, or supervised release at the time of the in stant offense, and has had such probation, parole, or supervised release revoked, the sentence for the in stant offense should be imposed to run consecutively to t he term imposed for the violation of probation, parole , or supervised release in order to provide an increment al penalty for the violation of probation, parole, or supervised release. See §7B1.3 (Revocation of Probation or Supervised Release) (setting forth a p olicy that any imprisonment penalty imposed for violating probation or supervised release should be consecuti ve to any sentence of imprisonment being served or subsequently imposed). (continued...) -11- Here, Moyer’s federal conviction was based on a fir earms violation. His state convictions arose from sexual assaults he com mitted against minors and his current term of state incarceration resulted from h is violation of the terms of his probation. Thus, Moyer’s state offenses were not “ fully taken into account” in the manner contemplated by § 5G1.3(b) and the distr ict court properly refused to apply § 5G1.3(b) when it sentenced Moyer. This court has held that when neither § 5G1.3(a) no r § 5G1.3(b) applies and the defendant is subject to an undischarged state sentence, “sentencing courts possess the discretion to determine, under U.S.S.G. § 5G1.3(c) and application note 6, whether to impose a sentence concurrent wit h, partially concurrent with, or consecutive to a prior undischarged term of imprisonment.” 4 Tisdale , 2484 (...continued)

U.S.S.G. § 5G1.3, cmt. n.6.

-12- F.3d at 979 (holding that application note 6’s lang uage is permissive, not mandatory). Because the sentencing court mistakenl y believed it was required to impose a consecutive sentence pursuant to § 5G1.3(a ), we must remand this case for resentencing. On remand the district court has the discretion to impose either consecutive or concurrent sentences but must consid er the directives set forth in § 5G1.3(c) and the application notes. See U.S.S.G. § 5G1.3, cmt. nn.3-6; Tisdale , 248 F.3d at 979; Johnson , 40 F.3d at 1083 (“[T]he methodology found in the commentary to § 5G1.3(c) interprets and expl ains how the guideline should be applied and a district court is bound to conside r its implications. (quotation omitted)). C. Application of 18 U.S.C. § 924(e) During oral argument, this court raised an issue no t raised by the parties before the district court or in this appeal. The c ourt questioned whether Moyer’s sentence is unlawful because he was not sentenced p ursuant to 18 U.S.C. § 924(e)(1). The parties have filed supplemental bri efing on this issue pursuant to an order of this court.5 Although the government agreed not to seek the § 92 4(e)(1) fifteen-year

mandatory minimum sentence, it took the position th at Moyer was an armed career criminal under U.S.S.G. § 4B1.4 because he w as subject to the § 924(e)(1) enhanced sentence. See supra Section III. A; see also U.S.S.G. § 4B1.4(a) (“A defendant who is subject to an enhanced sentence un der the provisions of 18 U.S.C. § 924(e) is an armed career criminal.”). -13- Moyer was charged with violating 18 U.S.C. § 922(g) (1), being a felon in possession of a firearm. His sentence was imposed pursuant to 18 U.S.C. § 924(a)(2) which provides, “Whoever knowingly violat es subsection . . . (g) . . . of section 922 shall be fined as provided in this t itle, imprisoned not more than 10 years, or both.” Although the PSR clearly indic ated that Moyer was subject to the provisions of 18 U.S.C. § 924(e)(1), the distri ct court sentenced Moyer to the § 924(a)(2) ten-year statutory maximum because the government agreed not to seek the § 924(e)(1) enhanced sentence. 5 Section 924(e)(1) provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referre d to in section 922(g)(1) of this title for a violent felony or a s erious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imp risoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the convic tion under section 922(g).
In United States v. Johnson , this court concluded that the application of § 924(e)(1) is mandatory and “does not require govern ment action to trigger its-14-

application nor does it vest discretion in the sent encing court not to apply its mandate.” 973 F.2d 857, 860 (10th Cir. 1992). Based on our conclusion, supra , that Moyer’s three Wyoming felony convictions are “ violent felonies,” it is clear that Moyer’s sentence should have been calculated b y applying § 924(e)(1), not § 924(a)(2). Because the ten-year sentence imposed b y the district court does not reflect the mandatory minimum mandated by § 924(e)(1) and Johnson , it is an illegal sentence. See United States v. Wainwright , 938 F.2d 1096, 1098 (10th Cir. 1991) (defining an illegal sentence as one whi ch “omits a term required to be imposed by statute”); see also U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). The parties both assert that this court should revi ew Moyer’s illegal sentence for plain error pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Santistevan , 39 F.3d 250, 256 (10th Cir. 1994) (“[O]ur case law unquestionably recognizes our inhe rent power to raise an issue sua sponte as plain error . . . .”). Moyer argues that there has been no error because the government waived the application of § 924(e)(1). Moyer also argues that any error is not plain or obvious becau se “there is no law on the subject by which the district court might have been guided relative to a governmental waiver of enhancement.”6 Although United States v. Zeigler , 19 F.3d 486 (10th Cir. 1994), does not

discuss the issue, at least two circuit courts of appeal have considered whether a sentencing error which is favorable to the defendan t affects “substantial rights.” See United States v. Barajas-Nunez , 91 F.3d 826, 833 (6th Cir. 1996); id . at 836 (Siler, J., concurring in part and dissenting in part) (“‘[S]ubstantial rights,’ as described in Olano, [507 U.S. 725, 734 (1993)] are those rights of the defendant at bar . . . .”); United States v. Rodriguez , 938 F.2d 319, 322 & n.4 (1st Cir. 1991) (concluding that the “imposition of a term of imprisonment less than the minimum mandated by Congress affects ‘substantial r ights’”).

. -15- Contrary to Moyer’s assertions, the application of § 924(e)(1) is not subject to governmental waiver or prosecutorial discretion. See Johnson , 973 F.2d at 860. Thus, notwithstanding the commitment made by the government in the plea agreement, the district court erred when i t sentenced Moyer without applying § 924(e)(1). Additionally, because Johnson holds that the government may not waive the application of § 924(e)(1), the applicable law was settled at the time of Moyer’s sentencing and the error is, therefore, clear. See United States v. Olano , 507 U.S. 725, 734 (1993). Under our circuit precedent, the imposition of an i llegal sentence constitutes plain error even if the sentence favors the defendant. 6 See United States v. Zeigler, 19 F.3d 486, 494 (10th Cir. 1994) (“[T]he sentence imposed below . . . is illegal and thus constitutes plain error.”); see also United States v.
Osuna , 189 F.3d 1289, 1292 n.2 (10th Cir. 1999) (“Plain error is established when: (1) there is error; (2) the error is plain orobvious; and (3) the error-16-

affected substantial rights.”). Consequently, we c onclude that the imposition of the ten-year sentence pursuant to § 922(a)(2) was p lain error. Because Moyer’s illegal sentence “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,” we agree with the governmentthat it should be corrected. Olano , 507 U.S. at 736 (quotation omitted). Throughout the proceedings against him, Moyer was c onsistently advised that the government would not seek the § 924(e)(1) enhancement and that the maximum term to which he could be sentenced was ten years. In response to questioning from the district court at the change o f plea hearing, the parties also advised the court that Moyer’s sentence could not e xceed the ten-year statutory maximum set forth in § 924(a)(2). [Prosecution]: Because of the provision in the pleaagreement that we won’t seek a sentence under 924(e), the maximum sentence Your Honor would be able to impose, if our guideline cal culation is right, would be the 120-month maximum pursuant to 18 Unite d States Code, Section 924(a)(2), and that would become the guideline sentence then, 120 months. [The Court]: The maximum sentence would be 120 mont hs that I could impose? That’s what you’re saying? [Prosecution]: That—yeah, and that—and that would a ctually become the guideline sentence because the guideline calculation would actually be 135 to 168. So Your Honor would be faced with looking at a 120—a 120-month sentence. [The Court]: Mr. Barrett, do you agree with that as sessment? [Defendant]: Given those circumstances, yes, I do, Your Honor.-17-

Based on the parties’ representations, the districtcourt advised Moyer that his sentence would be “at or near the 120-month sentenc e to which the government alluded.” Moyer then entered his guilty plea. Bec ause Moyer was never made fully aware of the genuine consequences of his guil ty plea, he must be given the opportunity to withdraw the plea on remand. See United States v. McCann , 940 F.2d 1352, 1358 (10th Cir. 1991).
IV. CONCLUSION
We remand this matter to the district court with instruction to vacate Moyer’s sentence and allow him the opportunity to w ithdraw his guilty plea. If Moyer does not withdraw his plea, the court must re sentence him in accordance with this opinion.