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Internet Explorer 11 is no longer supported. Defendant-Appellant Mark E. Gonzales pled guilty to being a felon in possession of a firearm in violation of 18 U. This recommendation was based on the PSR's conclusion that Mr. The district court rejected Mr. Gonzales' argument and sentenced him to 15 years' imprisonment. Gonzales now appeals. We exercise jurisdiction pursuant to 28 U.
On its own motion, this court raised the question whether Mr. After considering the parties' supplemental briefs, however, we conclude Mr. Gonzales is not entitled to relief from his sentence on that basis, either. The events that gave rise to this case occurred on March 23, It was on this day that Mr. Gonzales was riding in his girlfriend's van with his girlfriend and her daughter.
During the ride, Mr. Gonzales became upset, removed a. Law enforcement officials were called, and upon their arrival, Mr. Gonzales was eventually apprehended. Thereafter, Mr. Gonzales admitted that he was a convicted felon, and further admitted that he had possessed the gun. Based on these events, Mr. Gonzales was indicted for being a felon in possession of a firearm in violation of 18 U. Gonzales pled guilty to the charge. In exchange for his guilty plea, the government agreed to recommend that Mr. Gonzales' criminal offense level be reduced by a total of three levels for acceptance of responsibility.
The plea agreement advised that Mr. Gonzales faced 10 years' imprisonment.
Following Mr. Gonzales' guilty plea, the probation office prepared a PSR. Pursuant to U. Gonzales' adjusted criminal offense level be set at 30 including the three level reduction for acceptance of responsibilitybecause according to the PSR, Mr. Gonzales' criminal history brought him within the ambit of 18 U. In making this objection, Mr. Gonzales offered the information and plea colloquy relating to this conviction.
These documents shed more light on the circumstances surrounding Mr. Gonzales' burglary offense. Mark E. And Doug was the one that did all the work by getting in, into the bar and stuff. If possible I will pay restitution if you will take that into consideration too.
But there wasn't no way I could open the door from the inside to get out. So I couldn't get out. So I had to stay in there whether I liked it or not until there was a way to get out. Based on the circumstances surrounding this conviction, Mr. Specifically, Mr. The district court disagreed, and pursuant to its belief that Mr. Gonzales to 15 years' imprisonment. Following oral argument, this court, on its own motion, raised a concern whether Mr.
At the court's request, the parties filed supplemental briefs addressing that question. Green, 55 F. United States, U. The Wyoming statute under which Mr. Gonzales was convicted defines burglary more broadly than the Supreme Court's generic definition of the term:.
Gonzales,] who [was] convicted under a nongeneric-burglary statute, the Government may seek enhancement on the ground that he actually committed a generic burglary. Taylor, F. We disagree. As discussed in United States v.
Barney, F. Gonzales was convicted], is its inclusion of vehicles among the places that can be burglarized. To this end, the information provides that Mr. R2 at 17, Ex. B emphasis added. For all intents and purposes, this statement, which makes clear that Mr. Gonzales counters that Barney is in fact helpful to his case. In this regard, Mr. Gonzales' reliance on this statement is misplaced, however, as the statement was made in relation to the court's consideration of a conviction under Wyo.
ificantly, although we have ly determined that Wyo. Based on the breadth of this statute, of course, the court in Barney was required to make a of considerations that are not pertinent in this case.
Instead, here, where Mr. Gonzales was convicted of burglary pursuant to Wyo. It is clear that they do. Accordingly, the district court did not err in determining that Mr. On its own motion, this court inquired of the parties whether Mr.
Gonzales has not waived this argument. See United States v. Olano, U. However, he has forfeited the issue by failing to raise it to the district court. Thus, this court will review the question for plain error. See id. If these three criteria are met, then we may exercise discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Zubia-Torres, F. Gonzales bears the burden of establishing plain error that warrants relief.
See Zubia-Torres, F. We conclude he has not established such plain error here. There are two means by which Mr. See also United States v.
Hays, F. It is unclear from the record under which of these two prongs or both Mr. Gonzales was convicted. Because Mr. Gonzales did not raise this challenge below, the parties agree that, to be entitled to relief, Mr. Gonzales must now establish that the district court would have committed plain error in treating his battery conviction, under either prong of the Wyoming battery statute, as a violent felony under 18 U. See also Chambers v. Gonzales did not, at sentencing, challenge the decision of the district court to treat his battery conviction as a violent felony, that court never addressed which of these definitions the Wyoming battery conviction met.
We will, therefore, briefly consider each. Gonzales' battery conviction clearly was not burglary, arson, extortion, or an offense involving explosives. Therefore, regardless of whether Mr. Gonzales was convicted under the first or second prong of the Wyoming battery statute, it would have been plain error had the district court concluded that his conviction met the ACCA's second violent-felony definition.
Edgar, F. In light of that decision, if Mr. However, that leaves the possibility that Mr. Gonzales has not pointed out, and we have not found, any Supreme Court or Tenth Circuit authority that directly addresses these possibilities. Nor has Mr. Gonzales pointed to any cases from other circuits addressing these issues.
Therefore, even if it would have been error for the district court to have relied upon these bases for characterizing Mr. Kaufman, F. Baum, F. Smith, F. For these reasons, we conclude Mr. Gonzales has failed to establish that the district court plainly erred in determining that his Wyoming battery conviction qualified as a violent felony for purposes of the ACCA. The panel grants Mr. Footnotes omitted. To the extent that Mr. Gonzales' brief may be interpreted to argue that Wyo. As this court observed in United States v. Lujan, 9 F. Taylor, U. Field, 39 F. We may raise on our own motion an issue that might benefit the appellant.
See Greenlaw v. Under plain-error review, it is Mr. Gonzales' burden to show which prong of the Wyoming battery statute was the basis for his conviction, since he has the burden of proving both plain error and prejudice.Top back at usc want Cheyenne Wyoming
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UNITED STATES v. GONZALES