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, Cheyenne, Wyoming, for

Defendant-Appellant.

James C. Anderson, Assistant United States Attorney (Matthew H. Mead, United

States Attorney; David D. Freudenthal, Former United States Attorney; and David

A. Kubichek, Assistant United States Attorney (Casper, Wyoming office), with

him on the briefs), District of Wyoming, Cheyenne, Wyoming, for PlaintiffAppellee.

Before HENRY, BALDOCK, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
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I. INTRODUCTION

Appellant, Steven A. Moyer, was convicted of being a felon in possession

of a firearm and sentenced to ten years’ incarceration. 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 ordered Moyer’s federal sentence to

run consecutively to a Wyoming state term of imprisonment. 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 federal 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 order Moyer’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) notwithstanding the government’s

agreement not to seek the enhancement. Accordingly, this court affirms in part,

reverses in part, and remands for resentencing. 
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II. FACTUAL BACKGROUND

In 1986, Moyer pleaded guilty to one count of Third Degree Felony Sexual

Assault in violation of Wyoming state law. Moyer’s sentence was suspended and

he received five years of probation. In 1999, Moyer was convicted of two

additional state counts of Third Degree Felony Sexual Assault. As a result of the

1999 convictions, Moyer was placed on supervised probation for ten years. As

part of Moyer’s probation agreement, he gave the Wyoming Department of

Corrections permission to search his home if his supervising 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 received notice that Moyer

had tested positive for the use of marijuana. Two Wyoming probation officers

conducted a search of Moyer’s residence and found marijuana and five firearms. 

Consequently, Moyer’s probation on the two 1999 felony convictions was

revoked and he was sentenced to serve two concurrent state terms of three to

seven years’ imprisonment. 

In addition to the state probation revocation, Moyer was also indicted on

federal charges of being a felon in possession of a firearm in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). Moyer entered into a plea agreement with the

government. In exchange for Moyer’s guilty plea to the charge contained in the
1A copy of the plea agreement was not included in the appellate record but

the parties do not dispute either its existence or its terms.

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federal indictment, the government agreed, inter alia , to recommend that Moyer

receive a three-level reduction in his offense level for acceptance of

responsibility and further agreed not to seek any enhanced penalty pursuant to 18

U.S.C. § 924(e). 1

The district court accepted Moyer’s plea and a presentence 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 offense 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 guidelines sentencing range was

calculated at 135-168 months. Because the government did not seek the

application of 18 U.S.C. § 924(e), the PSR indicated 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 relied on application note 6 to

U.S.S.G. § 5G1.3 to support the recommendation that Moyer’s federal sentence

be imposed to run consecutively to his Wyoming state sentence. 

Moyer filed timely objections to the PSR. Moyer argued that his prior

Wyoming felony convictions were not crimes of violence and thus he did not
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qualify as an armed career offender. Moyer also argued that his federal and state

sentences should not be imposed to run consecutively 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 considered

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 violence 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 ordered 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 that his three Wyoming felony

convictions were not “crimes of violence” and thus they did not trigger the armed

career criminal guideline. The question of whether Moyer’s state felony

convictions were crimes of violence is a legal question 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 sentence under the provisions of

18 U.S.C. § 924(e).” U.S.S.G. § 4B1.4(a). The § 924(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 section 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 exceeding 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). Moyer argues that the Wyoming

convictions do not fit within the definition of violent felony set out in 18 U.S.C.

§ 924(e)(2)(B)(ii) because under Wyoming law, third degree sexual assault is not

classified as a violent crime and the elements of the crime do not require the

application of or the threat of force. He also argues that there is no evidence that

the Wyoming convictions involved actual physical violence. 

 In United States v. Coronado-Cervantes , this court concluded that a

nonforcible sex offense involving a child victim and an adult offender is a crime
2For purposes relevant to this case, the definition of “crime of violence”

under U.S.S.G. § 4B1.2(a)(2) is identical to the definition of “violent felony”

found at 18 U.S.C. § 924(e)(2)(B)(ii).

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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 conclusion notwithstanding the

government’s concession that the state statute violated 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 contained 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 of a minor “by its nature

present[s] a serious potential risk of injury to [the] 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 children under the age of

twelve. Moyer attempts to distinguish Coronado-Cervantes by arguing that Third

Degree Sexual Assault is not defined as a violent crime under Wyoming law. 

Moyer’s argument is unavailing. Wyoming’s classification of the crimes Moyer

committed is irrelevant to our inquiry into whether those crimes involved a

potential risk of physical injury to the victims. Coronado-Cervantes directly

controls this issue and we conclude that Moyer’s three Wyoming felony

convictions involving sexual assaults on children under the age of twelve were
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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 provides:

If the instant offense was committed while the defendant was serving

a term of imprisonment (including work release, furlough, or escape

status) or after sentencing for, but before commencing 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, the government argued that

U.S.S.G. § 5G1.3(a) was applicable stating, “the defendant was serving a term . .

. where his liberty was substantially restricted by way of probation and he

committed this offense. I think that, under those circumstances, 5G1.3(a)

certainly, arguably, appl[ies] to the sentence.” The 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 sentence. 

Moyer argues that the term of probation he was serving when he committed

the federal firearms offense does not constitute a term of imprisonment under §

5G1.3(a). The government concedes in this appeal that 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 case upon which the government
3

See United States v. Cofske , 157 F.3d 1, 1-2 (1st Cir. 1998).

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bases its concession is not binding authority in this circuit, 3

 this court has

recently concluded that “an undischarged term of probation 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 agree

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 when 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 of 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 undischarged term of

imprisonment resulted from offense(s) that have been fully taken

into account in the determination of the offense level for the instant

offense, the sentence for the instant offense shall be imposed to run

concurrently to the undischarged term of imprisonment.

(emphasis added). Moyer asserts that § 5G1.3(b) applies 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 required to order his federal term
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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 not apply. This court

has concluded that “U.S.S.G. § 5G1.3(b)’s central aim 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 applying 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 federal and state court for the

same course of conduct and the conduct prosecuted by the state has been taken

into account under the federal sentencing guidelines as relevant conduct). Thus,

§ 5G1.3(b) applies only if Moyer’s state and federal 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 the “there [was] no indication

in the record that the conduct underlying Defendant’s state sentences was

considered as relevant conduct to determine the offense 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).
4Application note 6 provides:

If the defendant was on federal or state probation,

parole, or supervised release at the time of the instant

offense, and has had such probation, parole, or

supervised release revoked, the sentence for the instant

offense should be imposed to run consecutively to the

term imposed for the violation of probation, parole, or

supervised release in order to provide an incremental

penalty for the violation of probation, parole, or

supervised release. See §7B1.3 (Revocation of

Probation or Supervised Release) (setting forth a policy

that any imprisonment penalty imposed for violating

probation or supervised release should be consecutive to

any sentence of imprisonment being served or

subsequently imposed).

(continued...)

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Here, Moyer’s federal conviction was based on a firearms violation. His

state convictions arose from sexual assaults he committed against minors and his

current term of state incarceration resulted from his 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 district court properly refused to

apply § 5G1.3(b) when it sentenced Moyer. 

This court has held that when neither § 5G1.3(a) nor § 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 with, partially concurrent with,

or consecutive to a prior undischarged term of imprisonment.” 4

 Tisdale , 248
4

(...continued)

U.S.S.G. § 5G1.3, cmt. n.6.

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F.3d at 979 (holding that application note 6’s language is permissive, not

mandatory). Because the sentencing court mistakenly 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 consider 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 explains how the guideline should

be applied and a district court is bound to consider its implications. (quotation

omitted)).

C. Application of 18 U.S.C. § 924(e)

During oral argument, this court raised an issue not raised by the parties

before the district court or in this appeal. The court questioned whether Moyer’s

sentence is unlawful because he was not sentenced pursuant to 18 U.S.C. §

924(e)(1). The parties have filed supplemental briefing on this issue pursuant to

an order of this court. 
5Although the government agreed not to seek the § 924(e)(1) fifteen-year

mandatory minimum sentence, it took the position that Moyer was an armed

career criminal under U.S.S.G. § 4B1.4 because he was 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 under the provisions of 18

U.S.C. § 924(e) is an armed career criminal.”). 

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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 violates subsection . . . (g) . . . 

of section 922 shall be fined as provided in this title, imprisoned not more than

10 years, or both.” Although the PSR clearly indicated that Moyer was subject to

the provisions of 18 U.S.C. § 924(e)(1), the district 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 referred to in section

922(g)(1) of this title for a violent felony or a serious drug offense,

or both, committed on occasions different from one another, such

person shall be fined not more than $25,000 and imprisoned 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 conviction 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 government action to trigger its
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application nor does it vest discretion in the sentencing 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 by applying § 924(e)(1), not §

924(a)(2). Because the ten-year sentence imposed by 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 which “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 review 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 inherent 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 because “there is no law on the

subject by which the district court might have been guided relative to a

governmental waiver of enhancement.” 
6Although 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 defendant 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 rights’”).

. 

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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 it 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 illegal 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 or obvious; and (3) the error
-16-

affected substantial rights.”). Consequently, we conclude that the imposition of

the ten-year sentence pursuant to § 922(a)(2) was plain error. Because Moyer’s

illegal sentence “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings,” we agree with the government that it should be corrected. 

Olano , 507 U.S. at 736 (quotation omitted).

Throughout the proceedings against him, Moyer was consistently 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 of plea hearing, the parties also

advised the court that Moyer’s sentence could not exceed the ten-year statutory

maximum set forth in § 924(a)(2).

[Prosecution]: Because of the provision in the plea agreement that

we won’t seek a sentence under 924(e), the maximum sentence Your

Honor would be able to impose, if our guideline calculation is right,

would be the 120-month maximum pursuant to 18 United States

Code, Section 924(a)(2), and that would become the guideline

sentence then, 120 months.

[The Court]: The maximum sentence would be 120 months that I

could impose? That’s what you’re saying?

[Prosecution]: That—yeah, and that—and that would actually

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 assessment?

[Defendant]: Given those circumstances, yes, I do, Your Honor. 
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Based on the parties’ representations, the district court advised Moyer that his

sentence would be “at or near the 120-month sentence to which the government

alluded.” Moyer then entered his guilty plea. Because Moyer was never made

fully aware of the genuine consequences of his guilty 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 withdraw his guilty plea. If

Moyer does not withdraw his plea, the court must resentence him in accordance

with this opinion.