                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  May 6, 2013
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-2077
          v.                                           (D. New Mexico)
 ARTHUR HARRIS,                                (D.C. No. 2:10-CR-03150-BB-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant, Arthur Harris, was found guilty following a jury

trial of being a felon in possession of a gun, in violation of 18 U.S.C.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
§§ 922(g)(1) and 924 (e). He was subsequently sentenced to 298 months’

imprisonment. Mr. Harris filed this appeal, in which he challenges both his

conviction and sentence.



                                BACKGROUND

      On June 25, 2010, AC (a third-grader) was staying at his grandmother’s

trailer house in Roswell, New Mexico. AC’s grandmother is Terri Castaneda. At

approximately 2 a.m., AC heard Ms. Castaneda scream. When he went to the hall

outside his grandmother’s bedroom, he saw defendant, Mr. Harris, pointing a gun

at Ms. Castaneda’s head. AC then called 911 and told the 911 operator that

Mr. Harris was hitting his grandmother in the head and that he had a gun.

      As background to this incident, Ms. Castaneda and Mr. Harris had been

dating for approximately a month and a half. On June 24, 2010, Mr. Harris,

accompanied by Ms. Castaneda’s brother, Eddy Rodriguez, picked up

Ms. Castaneda after she completed her work shift at the Roswell Country Club.

Mr. Harris and Mr. Rodriguez were driving a Lincoln automobile owned by

Mr. Harris’s father. Ms. Castaneda testified that she saw Mr. Harris with a small

handgun when he picked her up. She said that Mr. Harris either was holding the

gun or had it in his lap.

      At some point after Mr. Harris dropped off Ms. Castaneda at her home, she

called Mr. Harris, inquiring whether he was coming over to her trailer.

                                        -2-
Mr. Harris said he would arrive in fifteen or twenty minutes. Mr. Harris arrived

at Ms. Castaneda’s trailer at approximately 2:30 a.m., and he asked Ms.

Castaneda to go with him to his father’s house. Ms. Castaneda declined because

she was taking care of AC. This upset Mr. Harris, who told Ms. Castaneda never

to call him again, and then left. He immediately returned, however, because he

had forgotten his car keys and a crucifix.

      Mr. Harris was still upset when he returned, apparently because he thought

Ms. Castaneda was waiting for someone else. He struck Ms. Castaneda twice

with something solid, which she believed to be a gun. She was struck on one eye

and one ear. Ms. Castaneda testified that Mr. Harris told her he should have

killed her. Mr. Harris allegedly pointed the gun at Ms. Castaneda from a distance

of two or three feet.

      Roswell Police Officer John Gokey was dispatched to the Castaneda

residence at 3:28 a.m., in reference to a report (apparently AC’s 911 call) that a

man had pointed a firearm at a woman, but that the man had left the house. When

Officer Gokey arrived at the residence, he saw Mr. Harris standing in the

driveway near the front of a white Lincoln. Roswell Police detective Steve

Meredith also arrived at the Castaneda residence. As Mr. Harris walked toward

the house, Detective Meredith ordered him to stop and lie on the ground. When

he (Mr. Harris) failed to do so, Detective Meredith forced Mr. Harris to the

ground and placed handcuffs on him. Officer Gokey found a gun some three to

                                         -3-
five feet from where Mr. Harris was on the ground. The gun had one round in the

chamber and the other bullets were in the front of the magazine.

      At trial, Mr. Harris’s sister, Pilar Harris, testified that she kept her gun, a

Beretta .25 caliber pistol, in her father’s Lincoln automobile. The gun was stored

under the driver’s seat. Ms. Harris kept one round in the chamber and three

additional bullets with the magazine. She identified the gun found at Ms.

Castaneda’s trailer home as her gun.

      As indicated, Mr. Harris was found guilty of being a felon in possession of

a firearm. In preparation for sentencing under the advisory United States

Sentencing Commission, Guidelines Manual (“USSG”), the United States

Probation Office prepared a presentence report (“PSR”). The PSR determined

that Mr. Harris was an armed career criminal, pursuant to the Armed Career

Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), and therefore subject to a minimum

mandatory sentence or an enhanced sentence under the Guidelines. 1 The PSR

further determined that Mr. Harris had an offense level of 34 and that he had at

least four prior violent felony convictions. 2 With a criminal history category of



      1
       Under the ACCA, a defendant who violates 18 U.S.C. § 922(g) and has
“three previous convictions . . . for a violent felony . . . shall be . . . imprisoned
not less than fifteen years.” 18 U.S.C. § 924(e)(1).
      2
       The four prior violent felony convictions were for residential burglary,
commercial burglary (twice) and aggravated assault. We discuss, infra, Mr.
Harris’s argument that these convictions were incorrectly categorized as violent
felonies.

                                           -4-
VI, Mr. Harris faced a Guidelines advisory sentencing range of 262 to 327

months, and a minimum mandatory statutory sentence under the ACCA of fifteen

years to life.

       Additionally, Mr. Harris had been previously convicted of the identical

offense as in the instant case. Indeed, as set forth in ¶ 50 of the PSR, Mr. Harris

was convicted on March 22, 2002, of being a felon in possession of a firearm and

was sentenced to a term of 120 months’ imprisonment. He was released from

prison and placed on supervised release on April 15, 2010, which was to last until

April 15, 2014.

       Both the government and Mr. Harris filed sentencing memoranda. The

government stated its belief that “there are existing aggravating circumstances of

a kind, or to a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that in order to advance the objectives

set forth in 18 U.S.C. § 3553(a)(2) should result in a sentence different from that

described, and that an upward departure may be applicable.” Gov. Sentencing

Mem. at ¶ 12 (citing USSG §5K2.0(a)(1)(A)). The government therefore

advocated for a sentence of life imprisonment.

       Mr. Harris filed objections to the PSR as well as a sentencing

memorandum. In his “Formal Objections” to the PSR, Mr. Harris objected to the

assessment of points under the ACCA based on Mr. Harris’s prior convictions for

residential burglary, aggravated assault and (twice) for commercial burglary. He

                                         -5-
averred that the “statutory definition of each of the prior offenses listed

proscribes a range of conduct that is broader than the ACCA’s definition of

violent felony.” Formal Objections at ¶ 1. Mr. Harris accordingly asked the

district court to consider whether he, in each particular case, was convicted of an

offense that qualifies as a violent felony pursuant to the modified-categorical

approach set out in Shepard v. United States, 544 U.S. 13, 26 (2005).

      In his sentencing memorandum, Mr. Harris sought either a downward

departure or a variance. He sought a variance because of his “serious and

extremely limiting health problems,” his “mental infirmities,” and his age.

Def.’s Sentencing Mem. at 5, 6. Mr. Harris opined that a fifteen-year sentence

would “protect the community, reflect the seriousness of the offense, promote

respect for the law, and provide just punishment.” Id. at 9.

      At his sentencing hearing, Mr. Harris continued to ask for a fifteen-year

sentence. The government continued to request a sentence of life imprisonment.

After hearing argument from both sides, the court stated that it had considered

“the presentence report factual findings[,] . . . the sentencing guideline

applications[,] [and] the factors of 18 United States Code, Section 3553, including

the finding that defendant is an armed career criminal.” Tr. of Sentencing Hr’g at

17. The court then sentenced Mr. Harris to 298 months, after noting that it was

most concerned because Mr. Harris “whole career” has been one of “harming




                                          -6-
other people.” Id. at 18. “It’s hard for me to conclude anything other than you

are a threat to society.” Id.

      This appeal followed, in which Mr. Harris argues: (1) the district court

erred in admitting evidence, under Fed. R. Evid. R. 404(b), that Mr. Harris had

been convicted of being a felon in possession of a firearm in the past; and (2) the

district court failed to rule on Mr. Harris’s objections to the PSR and therefore

imposed a procedurally unreasonable sentence.



                                   DISCUSSION

      I. Whether district court ruled on PSR objections

      Before trial, the government filed a motion in limine seeking permission to

tell the jury, pursuant to Fed. R. Evid. 404(b), that Mr. Harris had been convicted,

in 2002, of the same offense for which he was on trial in the instant case—i.e.,

being a felon in possession of a firearm. Mot., R. Vol. 1 at 19-24.

      Rule 404(b) provides that evidence of “other crimes, wrongs, or acts” is

inadmissible to prove the character of the accused, but “may be admissible for

another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid.

404(b)(2). Our court imposes four requirements for evidence to be admitted

under Rule 404(b):




                                         -7-
      (1) evidence of other crimes, wrongs, or acts must be introduced for
      a proper purpose; (2) the evidence must be relevant; (3) the court
      must make a Rule 403 determination whether the probative value of
      the similar acts is substantially outweighed by its potential for unfair
      prejudice; and (4) the court, upon request, must instruct the jury that
      the evidence of similar acts is to be considered only for the limited
      purpose for which it was admitted.

United States v. Diaz, 679 F.3d 1183, 1190 (10th Cir. 2012); see Huddleston v.

United States, 485 U.S. 681, 691-92 (1988). “Admission of evidence under

[Rule] 404(b) is reviewed under an abuse of discretion standard.” Diaz, 679 F.3d

at 1190 (internal quotation marks omitted); see also, United States v. Farr, 701

F.3d 1274, 1280 (10th Cir. 2012). We “will not disturb an evidentiary ruling

absent a distinct showing that it was based on a clearly erroneous finding of fact,

or an erroneous conclusion of law or manifests a clear error in judgment.” United

States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008) (quotations omitted).

      “To obtain a conviction under 18 U.S.C. § 922(g)(1) for possession by a

felon of a firearm or ammunition, the government had to prove (1) [Mr. Harris]

was convicted of a felony; (2) he thereafter knowingly possessed a firearm and/or

ammunition; and (3) the possession was in or affecting interstate commerce.”

United States v. Wilson, 107 F.3d 774, 779 (10th Cir. 1997). The government

asserts that admission of the prior felon-in-possession conviction showed Mr.

Harris’s “knowledge” and “absence of any mistake or accident.” Mot., R. Vol. 1

at 20. Mr. Harris objected to its admission, arguing that none of the exceptions to

Rule 404(b) apply, since nothing related to the prior conviction shows “plan,

                                         -8-
motive, opportunity, intent, preparation, knowledge, identity, or absence of

mistake or accident.” He further argued that it was unduly prejudicial and would

only let the jury infer propensity, which is not permitted.

      The district court granted the government’s motion in limine, allowing the

prosecutor to inform the jury that Mr. Harris was previously convicted of the

same offense of being a felon-in-possession. See Tr. of Trial, R. Vol. 3 at 194.

The court further stated that it would provide a limiting instruction prohibiting the

jury from using the 404(b) evidence improperly. Id.

      Mr. Harris renewed his objection when, during trial, the government

formally moved to introduce the prior conviction. The district court overruled the

objection, and evidence as to Mr. Harris’s prior conviction for being a felon-in-

possession was admitted. See id. at 687.

      Immediately prior to the government resting its case-in-chief, the district

court instructed the jury as follows:

             Ladies and Gentlemen of the jury, you have heard evidence
      relating to the defendant’s prior felony conviction in 2002 for the
      charge of being a felon in possession of a firearm.
             You may consider that evidence only for the purpose of
      judging whether he knowingly possessed a weapon in this case. You
      cannot consider the fact of his previous conviction for any purpose
      other than judging whether he knowingly possessed a firearm in this
      case.
             In other words, the fact that he may have committed this
      offense in the past is not evidence that he committed it now. You
      have to use it for a limited purpose.




                                         -9-
Id. at 750. In its final charge prior to the jury’s deliberations, the court instructed

the jury:

             You have heard evidence relating to the defendant’s prior
      conviction in 2002 for the charge of being a felon in possession of a
      firearm. You may consider that evidence only for the purpose of
      judging whether he knowingly possessed weapon in this case. You
      cannot consider evidence relating to his previous conviction for the
      charge of being a felon in possession of a firearm for any purpose
      other than judging whether he knowingly possessed a firearm in this
      case.

Id. at 847.

      The government relies heavily on two prior cases from our court, in which

we held that the admission of evidence (that the defendant had previously been

convicted of being a felon in possession of a firearm) was admissible in a later

proceeding charging the same offense. Indeed, the government describes one case

as “virtually identical to this case.” Appellee’s Br. at 12.

      The “virtually identical” case is United States v. Moran, 503 F.3d 1135

(10th Cir. 2007). The defendant in Moran was convicted of being a felon in

possession of a firearm after a rifle was found in the car he was driving. At his

trial, the district court permitted the government to introduce evidence of a

twelve-year-old conviction for the identical offense of being a felon in possession

of a firearm. The government presented, and the court admitted, evidence of the

prior conviction to show “‘knowledge, intent, and absence of mistake or

accident,’ proper purposes under Rule 404(b).” Id. at 1144. We held that the


                                          -10-
prior conviction was relevant “because it is probative to demonstrate that [the

defendant] ‘knowingly’ possessed the firearm.” Id. We explained more fully

why this is so:

      Mr. Moran denied knowledge of the rifle in the car, and the
      government had the burden of proving knowing possession of the
      firearm. To prove the knowledge element of the offense, the
      government offered evidence that Mr. Moran knowingly possessed a
      firearm at another point in time. Because the prior conviction
      required the same knowledge, evidence of the conviction had a
      “tendency to make the existence of” Mr. Moran’s knowledge of the
      rifle in the present case “more probable . . . than it would be without
      the evidence.” . . . In other words, the fact that Mr. Moran knowingly
      possessed a firearm in the past supports the inference that he had the
      same knowledge in the context of the charged offense.

Id. (quoting Fed. R. Evid. 401; other citations omitted).

      Mr. Harris responds that this logic only applies when the sole issue in

dispute is the defendant’s “knowledge” that he possesses the gun. It does not

apply in a case like this, he argues, where the defendant refutes the charge not on

the ground that he did not “know” he possessed a firearm, but on the ground that

he did not possess a firearm at all. We disagree.

      As the government argues, Mr. Harris pled not guilty to the crime of being

a felon in possession of a firearm, and that placed all of the elements of the crime,

including knowledge, at issue. Furthermore, Mr. Moran and Mr. Harris both

specifically denied knowledge of the weapon—Mr. Moran denied knowledge of

the rifle in the car, and Mr. Harris denied knowledge of the weapon found near

him outside Ms. Castaneda’s trailer. In short, Moran provides persuasive

                                         -11-
controlling authority to uphold the district court’s decision to admit evidence of

the prior conviction. 3

      Additionally, the district court, as indicated above, gave limiting

instructions to the jury, reminding them of the limited role of the evidence of the

prior felon-in-possession conviction. We assume juries follow their instructions.

“We presume jurors will remain true to their oath and conscientiously follow the

trial court’s instructions.” United States v. Turrietta, 696 F.3d 972, 978 (10th Cir.

2012) (quoting United States v. Carter, 973 F.2d 1509, 1513 (10th Cir. 1992)).

      Finally, our standard of review is abuse of discretion. There was no clearly

erroneous factual finding or legal conclusion underlying the district court’s

decision, nor did the court make any clear error of judgment. We accordingly

discern no abuse of discretion.




      3
        The second case upon which the government relies is United States v.
McGlothin, 705 F.3d 1254 (10th Cir. 2013), decided after the district court’s
ruling in the instant case. McGlothin largely followed Moran, observing that
“Moran makes clear that when a defendant places his intent at issue, the
defendant’s prior acts of weapon possession are relevant for the purpose of
demonstrating the act of firearm possession was knowingly undertaken.” Id. at
1263. Both McGlothin and Moran support the government’s position, and our
decision, in this case.
       We note that Mr. Harris “preserves a challenge to Moran, so that he can
attack it by means of an en banc petition. Specifically, he will challenge the rule
allowing a stale 922(g) conviction, one arising years earlier and involving a
different gun, to be admitted in a trial charging the defendant with illegal
possession of a firearm.” Appellant’s Br. at 21.

                                        -12-
      II. Objections to PSR

      Mr. Harris’s second argument is that the district court imposed a

procedurally unreasonable sentence because it failed to rule on the objections he

raised to the PSR, as required by Fed. R. Crim. P. 32(3)(B). “A sentence is

procedurally unreasonable if the district court ‘failed to calculate (or improperly

calculated) the Guidelines range, treated the Guidelines as mandatory, failed to

consider the § 3553(a) factors or failed to adequately explain the chosen

sentence.” United States v. Middagh, 594 F.3d 1291, 1294 (10th Cir. 2010)

(citations and quotations omitted). We review claims of procedural error for an

abuse of discretion, evaluating factual findings for clear error and legal

determinations de novo. United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir.),

cert. denied, 133 S. Ct. 555 (2012).

      Rule 32(i)(3)(B) states: “At sentencing, the court . . . must—for any

disputed portion of the presentence report or other controverted matter—rule on

the dispute or determine that a ruling is unnecessary either because the matter will

not affect sentencing, or because the court will not consider the matter in

sentencing.” The rule only addresses factual disputes. Our court has repeatedly

stated that “Rule 32 is not a vehicle for advancing legal challenges in sentencing,

and the district court is not obligated to make Rule 32(i)(3)(B) findings where the

issues the defendant raises do not involve factual inaccuracies in the report, but,

rather, legal objections to the district court’s determination of his sentence.”

                                         -13-
Middagh, 594 F.3d at 1295 (quoting United States v. Cereceres-Zavala, 499 F.3d

1211, 1214 (10th Cir. 2007)).

      As indicated above, Mr. Harris filed “Formal Objections” to the PSR. His

primary objection was to the PSR’s characterization of four of his prior

convictions as convictions for violent felonies, thereby qualifying him for an

increased sentenced under the ACCA, pursuant to 18 U.S.C. § 924(e)(2)(BB)(I)

and USSG §4B1.4. His prior convictions were for residential burglary,

commercial burglary (twice) and aggravated assault with a deadly weapon, all in

violation of New Mexico law. Mr. Harris claims that “[t]he statutory definition of

each of the prior offenses listed proscribes a range of conduct that is broader than

the ACCA’s definition of violent felony.” Objections to PSR at ¶ 1 (citing United

States v. Hernandez, 568 F.3d 827, 829 (10th Cir. 2009)).

      The Probation Office responded to these objections, explaining (correctly)

why Mr. Harris’s convictions for burglary (both residential and commercial) and

aggravated assault qualified as violent felonies under the ACCA. 4 Mr. Harris

      4
        The ACCA includes “burglary” in its list of enumerated violent felonies,
§ 924(e)(2)(B)(ii), but it does not define the offense. “Because burglary has
different meanings in various state jurisdictions, the Supreme Court provided a
definition in Taylor v. United States, 495 U.S. 575 (1990). It explained that the
ACCA refers to ‘generic’ burglary, which includes ‘the basic elements of
unlawful or unprivileged entry into, or remaining in, a building or structure, with
intent to commit a crime.’” United States v. Maldonado, 696 F.3d 1095, 1097-98
(10th Cir. 2012) (quoting Taylor, 495 U.S. at 598).
       We have previously held that New Mexico’s burglary statute, N.M. Stat.
Ann. § 30-16-3(B), is a non-generic statute. United States v. King, 422 F.3d
                                                                       (continued...)

                                         -14-
does not appear to have refuted this analysis anywhere before the district court.

Indeed, even in his objections, filed some seven months before the sentencing

hearing, Mr. Harris did not argue that his prior convictions were not for violent

felonies; rather he “requested the Court consider whether Mr. Harris, in each

particular case, was convicted of an offense that qualifies as a violent felony.”

Objections at ¶ 1. Nor does he refute the Probation Office’s analysis in his

appellate brief. His only argument is that the district court violated Rule 32 by

failing to specifically respond to his objections.

      We perceive no violation of the district court’s fact-finding obligations

under Rule 32(i)(3)(B). Rather than disputing the PSR’s factual findings, Mr.

Harris was really challenging the application of the Guidelines and the ACCA to

the facts. See United States v. Cereceres-Zavala, 499 F.3d 1211, 1215 (10th Cir.

2007) (explaining that “[a]rguments that challenge the district court’s application


      4
       (...continued)
1055, 1058 (10th Cir. 2005). Therefore, we must look to other documents to
determine whether Mr. Harris committed a generic burglary by entering a
building or structure. United States v. Shepard, 544 U.S. 13 (2005); Taylor, 495
U.S. at 602. We are limited, however, “to examining the . . . charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at
16. The Probation Office, in response to Mr. Harris’s objections to the PSR,
found that the charging documents in each of Mr. Harris’s three prior burglary
convictions established that he had committed generic burglaries, and therefore
violent felonies, for ACCA purposes. Thus, we need not consider Mr. Harris’s
aggravated assault conviction, although we have previously found that aggravated
assault under New Mexico law constitutes a violent felony. See United States v.
Ramon Silva, 608 F.3d 663 (10th Cir. 2010).

                                         -15-
of the guidelines to the facts and not the facts themselves do not trigger any

obligation on the part of the district court to make specific findings” (internal

quotation marks omitted)). Thus, Mr. Harris’s objection to the PSR did not

trigger the district court’s fact-finding obligations pursuant to Rule 32(i)(3)(B).

Mr. Harris’s sentence was accordingly not procedurally unreasonable.



                                  CONCLUSION

        For the foregoing reasons, we AFFIRM the sentence and conviction in this

case.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -16-
