                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        March 13, 2014

                                                                          Elisabeth A. Shumaker
                                   TENTH CIRCUIT                              Clerk of Court




 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                           No. 13-2073
                                                    (D.C. No. 1:11-CR-03108-PJK-1)
 JEROME YAZZIE,                                            (D. New Mexico)

        Defendant - Appellant.



                                ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Jerome Yazzie appeals the 40-year sentence he received after being convicted by a

jury of several offenses, including two counts of carrying or using a firearm in relation to

a crime of violence. See 18 U.S.C. § 924(c). On appeal he argues that the United States



       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App.
P. 32.1 and 10th Cir. R. 32.1.
District Court for the District of New Mexico erred by determining that the statutory

minimum term of imprisonment under § 924(c) was 35 years instead of 32 years.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Defendant waived this

challenge because he invited the error by repeatedly asserting that the mandatory

minimum term of imprisonment was 35 years.

       Defendant forced entry into a home, discharged a shotgun into the ceiling,

restrained the occupants, and stole several items. He also forced one of the occupants at

gunpoint to accompany him to a nearby home in an attempt to gain entry there as well.

The attempt failed and Defendant eventually left the area. A jury convicted him of

aggravated burglary, see 18 U.S.C. § 1153; robbery, see id. §§ 1153, 2111; kidnapping,

see id. §§ 1153, 1201(a)(2); and two counts of carrying or using a firearm in relation to a

crime of violence, see id. § 924, one for the burglary and robbery offenses and one for the

kidnapping offense.

       The presentence report calculated that the guideline range was 65 years to life. At

Defendant’s request the district court varied downward and imposed a sentence of 35

years for the two violations of 18 U.S.C. § 924(c) and an additional five years for the

remaining offenses, for a total of 40 years.

       On appeal Defendant argues that the district court erred because the statutory

mandatory minimum for the two § 924(c) offenses should have been 32 years instead of

35 years. We do not decide the merits of this challenge, however, because Defendant

waived it by inviting error. See United States v. Carrasco-Salazar, 494 F.3d 1270, 1272
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(10th Cir. 2007) (“Our prior cases make clear that waiver bars a defendant from

appealing an invited error.”). “The invited error doctrine prevents a party from inducing

action by a court and later seeking reversal on the ground that the requested action was

error.” John Zink Co. v. Zink, 241 F.3d 1256, 1259 (10th Cir. 2001) (internal quotation

marks omitted). Defendant invited the alleged error on several occasions. In his

response to a pretrial motion in limine, his attorney wrote, “Defense counsel has

determined that, if convicted of the eight counts charged in this indictment, Jerome

Yazzie will be sentenced to a mandatory minimum term of 35 years and a probable

maximum term of life imprisonment.” Supp. R., Vol. III at 31. More importantly, after

his conviction Defendant submitted a sentencing memorandum (requesting a downward

variance) that began:

       The Defendant JEROME YAZZIE, by and through his attorney DANIEL J.
       TALLON, requests that the Court sentence him to a term of 35 years, the
       mandatory minimum term of imprisonment applicable to Count 3 and
       Count 5 of this indictment [the § 924(c) charges], and accomplish this by
       means of a downward variance from the advisory guideline sentencing
       range . . . .

R., Vol. 1 at 222 (emphasis added). In the remainder of that filing, Defendant

stated at least six times that the mandatory minimum sentence was 35 years. At

the sentencing hearing the court complied with his request and sentenced him to

35 years’ imprisonment on the § 924(c) charges. Defendant did not object and we

will not now entertain this challenge.




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We AFFIRM Defendant’s sentence.

                             ENTERED FOR THE COURT


                             Harris L Hartz
                             Circuit Judge




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