                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      November 25, 2005
                               TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,
             Plaintiff - Appellee,                      No. 05-8023
 v.                                               (D.C. No. 04-CR-118-J)
 MICHAEL LEE SNYDER,                                   (D. Wyoming)
             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.




      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(f). The case is therefore submitted without

oral argument.

      On March 8, 2004, Defendant went “car-hopping” with a juvenile in

Cheyenne, Wyoming, stealing various items from inside automobiles. The next

day, on another car-hopping spree, Defendant and two companions stole a pickup


      *
       This order and judgment is not binding precedent, except under the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. 36.3.
truck and went for a joyride. Inside the truck was a Smith & Wesson revolver,

which Defendant stole. A few days later, Defendant’s sister called the police to

report that Defendant was staying in her home and had recently brought some

stolen merchandise into it. The responding officer obtained a consent to search

from Defendant’s sister and found the gun among Defendant’s personal effects.

When Defendant returned to his sister’s house, he was arrested. Defendant pled

guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1). The presentence report prepared by the probation office concluded

that Defendant had three prior convictions involving “violent felonies” as defined

by the Armed Career Criminal Act (“ACCA”), and, therefore, Defendant was

subject to a mandatory minimum sentence of fifteen years under 18 U.S.C. §

924(e).

      Under 924(e)(1), “a person who violates section 922(g) of [title 18] and has

three previous convictions . . . for a violent felony . . . shall be fined under this

title and imprisoned not less than fifteen years . . . .” Relying on Blakely v.

Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466

(2000), Defendant objected to the presentence report’s conclusion that he had

been convicted of three “violent felonies” for purposes of the ACCA. He argued

that this determination constituted a finding of fact that only a jury can make and

only after applying a “beyond a reasonable doubt” standard. The district court


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overruled Defendant’s objection and held that, by a preponderance of the

evidence, Defendant had three prior “violent felony” convictions–two for burglary

and one for distributing a controlled substance–and sentenced Defendant to

fifteen years’ imprisonment pursuant to 18 U.S.C. § 924(e).

      On appeal, Defendant again challenges his sentence as being imposed in

violation of his constitutional rights, as recently articulated by the Supreme Court

in United States v. Booker, __U.S.__, 125 S. Ct. 738 (2005). Specifically,

Defendant claims that the district court committed constitutional error when it

concluded by a preponderance of the evidence that his prior convictions were

“violent felonies” under the ACCA. A sentence enhancement under the ACCA is

a legal issue and, thus, we review it de novo. United States v. Moudy, 132 F.3d

618, 619 (10th Cir. 1998).

      We agree with Defendant’s admission in his brief that “[t]here is precedent

within this Circuit against [Defendant’s] position.” Aplt. Br. at 14; see United

States v. Moore, 401 F.3d 1220 (10th Cir. 2005). 1 In Moore, citing the Supreme

Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), we

held that a district court’s determination that a defendant’s prior convictions



      1
       We note that Defendant raises this issue as a preservation technique to
possibly overturn Moore by an en banc decision from this court, or a decision by
the United States Supreme Court. Unless and until that happens, we are bound by
the precedent of this court articulated in Moore.

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constituted “violent felonies” for purposes of the ACCA was a question of law to

be determined by court, and not a question of fact required to be pled in an

indictment, submitted to a jury, and proved beyond a reasonable doubt. 401 F.3d

at 1222-26. Therefore, consistent with our decision in Moore, Defendant’s

sentence pursuant to the ACCA must stand.

      We AFFIRM the district court’s sentence.

                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge




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