                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          April 17, 2006
                                TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 05-8003
          v.                                            (D. Wyoming)
 BYRON LEE JACKSON, also known                     (D.C. No. 03-CR-192-D)
 as Byran Lee Jackson, also known as
 Andrew Pepin,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, BALDOCK, and MURPHY, Circuit Judges.


      On October 12, 2004, Defendant Byron Lee Jackson pleaded guilty to (1)

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2)

being a fugitive in possession of a firearm, in violation of 18 U.S.C. § 922(g)(2);

(3) using or carrying a firearm during and in relation to a drug trafficking offense,

in violation of 18 U.S.C. § 924(c)(1)(A)(i); and (4) contempt of court, in violation

of 18 U.S.C. § 401(3). With respect to the first two counts, the district court


      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
sentenced Mr. Jackson as an armed career criminal, under the Armed Career

Criminal Act (“ACCA”), to the statutory minimum of 180 months’ imprisonment.

See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4(a). Mr. Jackson argues on appeal

that the district court (1) violated the Ex Post Facto Clause by counting a 1998

conviction for possession of an unregistered firearm as a predicate violent felony

under the ACCA; (2) erred by sentencing him under the 2004 edition, rather the

2003 edition, of the Sentencing Guidelines; and (3) improperly counted a 1979

burglary conviction as a violent felony under the ACCA. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm the district court.



                               I. BACKGROUND

      Mr. Jackson’s case began as a single-count criminal complaint for being a

felon in possession of a firearm on August 25, 2003. Mr. Jackson was indicted on

the single count in September 2003. He violated a condition of pre-trial release,

however, when he was arrested on January 27, 2004, for possession of firearms

and methamphetamine. The government subsequently filed a nine-count

superceding indictment against Mr. Jackson in March 2004. After negotiation,

Mr. Jackson pleaded guilty to four counts: (1) being a felon in possession of a

firearm, (2) being a fugitive in possession of a firearm, (3) possession of a

firearm in connection with a drug offense, and (4) contempt of court. The first


                                         -2-
count occurred on August 25, 2003, and the other three counts relate to his arrest

on January 27, 2004.

      As to the first two counts, the presentence report (“PSR”) recommended

that Mr. Jackson be sentenced as an armed career offender on the basis of three

prior violent felonies: (1) a 1979 burglary conviction, (2) a 1991 conviction for

second-degree burglary of a dwelling, and (3) a 1998 federal conviction for

possession of an unregistered firearm. At the December 22, 2004 sentencing, the

district court accepted the PSR’s recommendation and sentenced Mr. Jackson to

180 months’ imprisonment on the first two counts–the mandatory minimum for an

armed career criminal. The court also sentenced Mr. Jackson to (1) 120 months’

imprisonment for contempt of court, to run concurrently with the first two counts;

(2) 60 months’ imprisonment for possessing a firearm during and in relation to a

drug trafficking offense, to be served consecutively to the other three counts; and

(3) 60 months of supervised release. The district court applied the 2004 edition

of the Sentencing Guidelines.



                                II. DISCUSSION

      On appeal, Mr. Jackson first raises an Ex Post Facto challenge. He argues

that the district court erred when it sentenced him as an armed career criminal

because his 1998 conviction for possession of an unregistered firearm was not


                                         -3-
defined as a “crime of violence” in the Tenth Circuit until 2001. Second, he

contends that the district court applied the wrong edition of the Sentencing

Guidelines. Finally, according to Mr. Jackson, the district court improperly

counted his 1979 felony burglary conviction as a predicate violent felony for

ACCA sentencing.

      Before we separately examine Mr. Jackson’s claims, we briefly address the

relationship between a “violent felony” and “crime of violence.” Case law

interpreting one phrase is frequently persuasive to courts interpreting the other

phrase. See, e.g., United States v. Moyer, 282 F.3d 1311, 1315 (10th Cir. 2002);

United States v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994). The district court

sentenced Mr. Jackson as an “armed career criminal” under § 924(e), which

mandates imprisonment not less than 180 months for an individual convicted of a

§ 922(g) firearm possession who has been previously convicted of three violent

felonies or serious drug offenses. See 18 U.S.C. § 924(e)(1); U.S.S.G. §

4B1.4(a). The phrase “crime of violence” pertains to sentencing of a “career

offender” under Section 4B1.1 of the Guidelines. For this appeal, the ACCA’s

definition of “violent felony” is identical in all material respects to the

Guidelines’ definition of “crime of violence.” Both include any felony crime or

offense “that . . . otherwise involves conduct that presents a serious potential risk

of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. §


                                          -4-
4B1.2(a)(2).

A.    The district court’s sentence did not violate the Ex Post Facto Clause.

      In 1998, Mr. Jackson was convicted in federal court of possession of a

firearm not registered in the National Firearms Registration and Transfer Record.

Three years later, this circuit joined several sister circuits “in holding that

possession of an unregistered firearm in violation of Section 5861(d) is a crime of

violence as defined by U.S.S.G. § 4B1.2.” United States v. Dwyer, 245 F.3d

1168, 1172 (10th Cir. 2001). Mr. Jackson contends that because our court did not

rule until 2001 that possession of an unregistered firearm is a “crime of violence”

(and therefore a “violent felony”), his 1998 conviction for that offense cannot be

counted as an ACCA predicate felony without violating the Ex Post Facto Clause.

      The district court rejected Mr. Jackson’s Ex Post Facto arguments and

concluded that the enhanced penalty under the ACCA attached to the 2003 and

2004 offenses, not to his previous conviction in 1998. The court ruled that there

was “no ex post facto problem in using a prior conviction to enhance a sentence

as long as the offense for which the sentence is being imposed was committed

after the effective date of the statutory provision setting forth the conditions of

the enhancement.” Rec. vol. III, at 13 (Sent. Hr’g, dated Dec. 22, 2004).

      We review de novo whether a prior conviction constitutes a “violent

felony” under the ACCA. United States v. Moore, 401 F.3d 1220, 1226 (10th Cir.


                                           -5-
2005). We also review de novo a statutory challenge under the Ex Post Facto

Clause. Femedeer v. Haun, 227 F.3d 1244, 1248 (10th Cir. 2000).

      “[F]or a law to violate the Ex Post Facto Clause, the law must apply to

events occurring before its enactment and must disadvantage the offender affected

by it.” United States v. Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003)

(internal quotation marks omitted). “[T]here is no ex post facto problem in using

a prior conviction to enhance a sentence, so long as the offense for which the

sentence is being imposed was committed after the effective date of the statutory

provision setting forth the conditions for enhancement.” Id. We agree with the

district court that Mr. Jackson’s enhanced sentence under the ACCA is not an

additional retroactive punishment for his 1998 conviction. Instead, his sentence

for the 2003 and 2004 offenses is “a stiffened penalty for the latest crime[s].”

Gryger v. Burke, 334 U.S. 728, 732 (1948) (rejecting an Ex Post Facto challenge

to a state sentencing enhancement that was based on a conviction prior to the

act’s passage).

      Further, a retroactive application of our 2001 holding in Dwyer does not

violate the Ex Post Facto Clause as applied to Mr. Jackson. “If a judicial

construction of a criminal statute is unexpected and indefensible by reference to

the law which had been expressed prior to the conduct in issue, it must not be

given retroactive effect.” Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)


                                         -6-
(internal quotation marks omitted). Mr. Jackson does not argue on appeal that

Dwyer was “unexpected and indefensible.” Indeed, in Dwyer we relied on

previous appellate decisions uniformly holding that an unregistered firearm

involves a substantial risk of violence. See, e.g., United States v. Rivas-Palacios,

244 F.3d 396, 398 (5th Cir 2001); United States v. Dunn, 946 F.2d 615 (9th Cir.

1991); see also United States v. Luersen, 278 F.3d 772, 774 (8th Cir. 2002)

(concluding that the categorical and retroactive classification of a defendant’s

earlier escape conviction as a crime of violence after a 2001 decision “was not

unexpected or indefensible, thus retroactively applying [the 2001 decision] to [the

defendant’s] earlier escape offense is not unconstitutional”).

      Mr. Jackson also contends that we should examine the nature of his 1998

felony at the time of that conviction to determine whether it should now be

considered a violent felony for ACCA sentencing. For this proposition, Mr.

Jackson relies on the Fourth Circuit’s decision in United States v. Johnson, 114

F.3d 435 (4th Cir. 1997). In Johnson, a defendant career offender had been

previously convicted of a felony (assault on a female) punishable by up to two

years in prison. Several years later, when the defendant was sentenced as a career

offender, the state’s legislature had since changed the punishment for assault to a

maximum of 150 days’ imprisonment. The defendant sought the benefit of the

lower punishment because a misdemeanor reclassification would allow him to


                                         -7-
avoid sentencing as a career offender. The Fourth Circuit rejected that argument,

concluding that “for career offender calculation purposes, the date the prior

conviction was sustained should control, not the date of later sentencing as a

career offender.” Id. at 445.

      We are not persuaded by Mr. Jackson’s reliance on Johnson. That decision

concerned the classification of an offense as a felony or a misdemeanor due to the

length of punishment, and did not address the characterization of an offense as a

violent or non-violent felony. The Fourth Circuit logically considered the

statutory length of the defendant’s punishment at the time of his conviction,

rather than punishment subsequently prescribed for that offense by legislative

amendment. Endorsing Mr. Jackson’s approach to the characterization of felonies

would eviscerate our holding in Dwyer and all other decisions where a court first

defines an offense as a violent felony or crime of violence.

B.    The district court did not err in using the 2004 edition of the Guidelines.

      Section 1B1.11(a) of the Sentencing Guidelines provides that a “court shall

use the Guidelines Manual in effect on the date that the defendant is sentenced.”

“If the court determines that use of the Guidelines Manual in effect on the date

the defendant is sentenced would violate the ex post facto clause of the United

States Constitution, the court shall use the Guidelines Manual in effect on the

date that the offense of conviction was committed.” U.S.S.G. § 1B1.11(b)(1).


                                         -8-
The district court sentenced Mr. Jackson under the 2004 edition of the Guidelines.

      Mr. Jackson maintains that the district court should have used the 2003

edition of the Guidelines because of a change in the commentary under Section

4B1.2, which defines “crime of violence.” The 2003 edition did not define

possession of an unregistered firearm as a crime of violence, whereas the 2004

edition specifically includes such offense as a crime of violence. See id. § 4B1.2

cmt. n.1 (2004). Consequently, Mr. Jackson argues that sentencing under the

2004 Guidelines violated the Ex Post Facto Clause. We review de novo the legal

question of whether the district court applied the correct version of the

Guidelines. United States v. Osborne, 332 F.3d 1307, 1312 (10th Cir. 2003).

      This claim is also without merit. The only change between editions was a

commentary note added to the 2004 Guidelines, specifically listing possession of

an unregistered firearm as a “crime of violence.” Our circuit in Dwyer, however,

had already identified possession of an unregistered firearm as a “crime of

violence” in 2001, and we already concluded that its retroactive application to Mr.

Jackson’s 1998 conviction does not violate the Ex Post Facto Clause. Thus, the

court did not err by sentencing Mr. Jackson under the 2004 Guidelines.

C.    The district court did not err in concluding that the 1979 burglary felony

      was a violent felony.

       Mr. Jackson finally argues that his 1979 state conviction for burglary in


                                         -9-
Wyoming should not be counted as a “violent felony” for ACCA sentencing.

Under Wyoming law, “[a] person is guilty of burglary if, without authority, he

enters or remains in a building, occupied structure or vehicle, or separately

secured or occupied portion thereof, with intent to commit larceny or a felony

therein.” W YO . S TAT . § 6-3-301(a). State law defines a “violent felony” to

include “aggravated burglary,” but not the more generic offense of burglary for

which Mr. Jackson was convicted. Id. § 6-1-104(xii). Because Wyoming does

not define burglary as a violent felony, Mr. Jackson believes that his 1979

conviction should not be a predicate violent felony under the ACCA. We review

de novo this question of law. Moore, 401 F.3d at 1226.

      Under the ACCA, the term “violent felony” includes, among other offenses,

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

. is burglary.” 18 U.S.C. § 924(e)(2)(B)(ii). In Taylor v. United States, the

Supreme Court examined § 924(e) and concluded that “Congress presumably

realized that the word ‘burglary’ is commonly understood to include not only

aggravated burglaries, but also run-of-the-mill burglaries involving an unarmed

offender, an unoccupied building, and no use or threat of force.” 495 U.S. 575,

597 (1990). The Court went on to “conclude that a person has been convicted of

burglary for purposes of a § 924(e) enhancement if he is convicted of any crime,

regardless of its exact definition or label, having the basic elements of unlawful


                                        -10-
or unprivileged entry into, or remaining in, a building or structure, with intent to

commit a crime.” Id. at 599.

      Therefore, the pertinent question is whether Mr. Jackson’s Wyoming

conviction satisfied Taylor’s generic definition of “burglary.” The state’s

burglary statute encompasses certain offenses (such as burglary of a vehicle) that

would be burglary under state law, but not under § 924(e). See Shepard v. United

States, 125 S. Ct. 1254, 1257 (2005) (“The [ACCA] makes burglary a violent

felony only if committed in a building or enclosed space (‘generic burglary’), not

in a boat or motor vehicle.”). Mr. Jackson, however, has never claimed in district

court or on appeal that his burglary conviction did not meet Taylor’s definition.

Therefore, he has waived such an argument. See Rosewood Servs., Inc. v.

Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005) (noting

that arguments not raised in the district court are waived on appeal).



                                III. CONCLUSION

      Accordingly, we AFFIRM the district court’s sentence.



                                        Entered for the Court,



                                        Robert H. Henry
                                        Circuit Judge

                                         -11-
-12-
