                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS
                                                                      June 17, 2009
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 08-3317
 v.
                                              (D.C. No. 08-CR-20051-JWL-1)
                                                         (D. Kan.)
 CHRISTOPHER JACKSON,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.


      In this direct criminal appeal, Defendant-Appellant Christopher Jackson

challenges the calculation of his sentencing guideline range. Specifically,

Jackson asserts that the district court erred in applying U.S.S.G. § 4B1.1 to

calculate his advisory sentencing range, after determining that Jackson qualified

as a career offender. Having jurisdiction to consider this appeal under 18 U.S.C.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
§ 3742(a) and 28 U.S.C. § 1291, we AFFIRM.

                               I. BACKGROUND

      Jackson pled guilty to being an inmate found in possession of a prohibited

object—in this case, two wooden shanks—in violation of 18 U.S.C. § 1791(a)(2). 1

In calculating Jackson’s advisory sentencing range for that conviction, the

presentence report (“PSR”) indicated that Jackson qualified as a career offender

under U.S.S.G. § 4B1.1 (November 1, 2007). Although Jackson objected to that

determination, the district court ultimately adopted the PSR’s calculations. Based

upon Jackson’s status as a career offender under § 4B1.1, the district court

calculated Jackson’s offense level to be 14 and his criminal history category to be

VI, resulting in an advisory sentencing range of 37 to 46 months in prison. The

district court imposed a sentence at the lowest end of that range, 37 months, to

run consecutively to the sentence Jackson was already serving when he committed

the instant offense.

                         II. STANDARD OF REVIEW

      This court reviews de novo the district court’s ultimate determination under

U.S.S.G. § 4B1.1 that Jackson was a career offender, and any underlying factual


      1
       18 U.S.C. § 1791(a)(2) provides that “[w]hoever . . . being an inmate of a
prison, makes, possesses, or obtains, or attempts to obtain, a prohibited object;
shall be punished as provided in subsection (b) of this section.” Because
Jackson’s offense involved “a weapon (other than a firearm or destructive
device),” subsection (b) provided for a fine or “imprisonment for not more than 5
years, or both.” Id. § 1791(b)(3), (d)(1)(B).

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findings for clear error. See United States v. Patterson, 561 F.3d 1170, 1172

(10th Cir. 2009).

                                  III. ANALYSIS

       Under U.S.S.G. § 4B1.1(a),

       [a] defendant is a career offender if (1) the defendant was at least
       eighteen years old at the time the defendant committed the instant
       offense of conviction; (2) the instant offense of conviction is a felony
       that is either a crime of violence or a controlled substance offense; and
       (3) the defendant has at least two prior felony convictions of either a
       crime of violence or a controlled substance offense.

On appeal, Jackson challenges only the district court’s determination as to the

second factor of this three-pronged inquiry, asserting that the instant offense,

possessing a prohibited object in prison, should not be considered a crime of

violence.

       Section 4B1.1 defines “crime of violence” by referring to U.S.S.G. § 4B1.2.

See U.S.S.G. § 4B1.1 app. n.1. And § 4B1.2(a) defines “crime of violence” to

mean

       any offense under federal or state law, punishable by imprisonment for
       a term exceeding one year, that—

             (1) has as an element the use, attempted use, or threatened
             use of physical force against the person of another, or

             (2) is burglary of a dwelling, arson, or extortion, involves
             use of explosives or otherwise involves conduct that
             presents a serious potential risk of physical injury to
             another.

       Applying a similarly worded statute—the Armed Career Criminal Act

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(“ACCA”), see 18 U.S.C. § 924(e)(1)—this court has already held that a

conviction for possessing a deadly weapon in prison qualifies as a “violent

felony.” See United States v. Zuniga, 553 F.3d 1330, 1332, 1336 (10th Cir. 2009)

(applying Begay v. United States, 128 S. Ct. 1581 (2008), to a Texas conviction

for possessing a deadly weapon in a penal institution), petition for cert. filed

(U.S. Apr. 16, 2009) (No. 08-9944). 2 And, “[b]ecause of the similarity in

language between [the ACCA] and U.S.S.G. § 4B1.2(a), this court has

occasionally looked to precedent under one of these provisions as guidance under

the other provision in determining whether a conviction qualifies as a crime of

violence.” United States v. West, 550 F.3d 952, 960 n.5 (10th Cir. 2008); see

also United States v. Serafin, 562 F.3d 1105, 1113 n.9 (10th Cir. 2009) (noting

similarity between the definitions of a violent felony under the ACCA and

      2
       Similar to U.S.S.G. § 4B1.2(a), the ACCA defines “violent felony,” in
pertinent part, to be

      any crime punishable by imprisonment for a term exceeding one
      year . . . that—

             (i) has as an element the use, attempted use, or threatened
             use of physical force against the person of another, or

             (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). This court, in Zuniga, held that a Texas conviction for
possessing a deadly weapon in a penal institution was a violent felony under the
ACCA’s residual clause, an offense that “otherwise involves conduct that presents
a serious potential risk of physical injury to another.” See 553 F.3d at 1333.

                                           4
U.S.S.G. § 4B1.2(a)); see also United States v. Rooks, 556 F.3d 1145, 1149-50

(10th Cir. 2009) (noting that, in light of the application note accompanying

U.S.S.G. § 4B1.2(a), that guideline provision might warrant an even broader

definition of violent felony than that given under the ACCA), petition for cert.

filed (U.S. June 9, 2009) (No. 08-10791). Jackson acknowledges this authority

contrary to the position he takes in this case, but he seeks to preserve this issue

for future review.

                                IV. CONCLUSION

      For these reasons, we AFFIRM Jackson’s sentence. 3


                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




      3
        In doing so, we need not address the Government’s alternative argument
for affirmance, that the categorical approach does not apply when considering
whether the instant offense of conviction was a violent felony and that the
specific facts underlying Jackson’s conviction at issue here establish that it was,
in fact, a violent felony.

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