                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       August 23, 2005
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 04-2351
 v.                                             (D.C. No. CR-03-2066-MV)
                                                     (D. New Mexico)
 BENJAMIN RAYMOND,

             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.

      Defendant was charged with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Defendant pled guilty to the charge. At



      *
       This order and judgment is not binding precedent, except under the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.
sentencing, the district court concluded that Defendant was an armed career

criminal and sentenced Defendant consistent with the provisions of the Armed

Career Criminal Act (ACCA).

      On June 29, 2002, police officers from the Albuquerque Police Department

investigated a report of a woman attempting to pass a fraudulent check. During

the course of their investigation, the officers confronted a woman matching the

description they had received and Defendant. The officers performed a “pat-

down” search of Defendant, and found two handguns in his possession: a loaded

Ruger 9-millimeter and a Smith and Wesson 9-millimeter.

      Defendant was arrested. After pleading guilty to being a felon in

possession of firearms, Defendant prepared for sentencing. The presentence

report prepared by the probation office concluded that Defendant had three prior

convictions involving “violent felonies” as defined by the ACCA and, therefore,

that Defendant was subject to a mandatory minimum sentence of fifteen years

under 18 U.S.C. 924(e).

      Under 924(e), a “person who violates section 922(g) of this title 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


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been convicted of three “violent felonies” for purposes of the ACCA on the

grounds that such determinations were findings of fact that must be made by a

jury beyond a reasonable doubt and not by the sentencing court by a

preponderance of the evidence. Rec., Vol. I, Tab 46. Concluding that Defendant

had three prior “violent felony” convictions for robbery, attempted armed robbery,

and aggravated burglary, the district court overruled Defendant’s objection and

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

Id., Vol. IV, at 35-36.

      A written judgment and commitment order was prepared which included the

terms of Defendant’s conditions of supervised release. One of these conditions

was the requirement that Defendant “submit to a search of his person, property, or

automobile under his control” and that “[h]e must inform any residents that [his]

premises may be subject to a search.” Id., Vol. I, Tab 52, at 4. The district court

never mentioned this “consent to search” condition during Defendant’s sentencing

hearing.

      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


                                         -3-
“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]his Court has

rejected arguments identical to [Defendant’s] in United States v. Moore, 401 F.3d

1220 (10th Cir. 2005).” 1 Aplt. Br. at 11.

      In Moore, we held that a district court’s determination that a defendant’s

prior convictions constituted “violent felonies” for purposes of the ACCA was a

question of law to be determined by the court, and not a question of fact required

to be pled in an indictment, submitted to a jury, and proved beyond a reasonable

doubt. See Moore, 401 F.3d at 1224-25, 1226. Therefore, consistent with our

decision in Moore, Defendant’s sentence pursuant to the ACCA must stand.

      Defendant also takes issue with the discrepancy between his oral sentence

and the written judgment and commitment order. Defendant is specifically

concerned with the “consent to search” condition imposed as part of his terms of

supervised release, which is found in the judgment and commitment order but not

included in the oral sentence.


      1
        We note that Defendant raises this issue as a preservation technique to
possibly overturn United States v. Moore, 401 F.3d 1220 (10th Cir. 2005), by an
en banc decision from this court or from 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.

                                         -4-
      We review conditions of supervised release for abuse of discretion. United

States v. Bartsma, 198 F.3d 1191, 1197-98 (10th Cir. 1999) (noting that plain

error standard was not appropriate standard of review when defendant afforded no

notice of condition). 2

      We agree with both parties that the special condition of supervised release

to consent to search that was not announced during the sentencing hearing should

be stricken from the judgment and commitment order. See United States v.

Villano, 816 F.2d 1448, 1450 (10th Cir. 1987) (en banc) (“It is a firmly

established and settled principle of federal criminal law that an orally pronounced

sentence controls over a judgment and commitment order when the two

conflict.”). Because there is obviously “a conflict between the oral sentence and

the written judgment and commitment order, the oral sentence controls.” See id.

at 451.

      Accordingly, we AFFIRM the district court’s sentence except for the

consent-to-search requirement contained in the conditions of supervised release




      2
       In all practicality, however, the distinction between plain error and abuse
of discretion is irrelevant to the outcome of this case since we would reach the
same result under either standard. See, e.g., United States v. Mangone, 105 F.3d
29, 36 (1st Cir. 1997) (finding plain error when the sentencing court departed
upward without giving prior notice to the defendant).

                                        -5-
and REMAND with directions to strike only that portion from the judgment and

commitment order.




                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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