                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS December 8, 2008

                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-3185
                                            (D.C. No. 2:05-CR-20079-JWL-1 and
 v.
                                                   2:07-CV-02509-JWL)
                                                         (D. Kan.)
 MARLO J. MIMS,

          Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


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


      Marlo J. Mims (“Mims”) applies pro se for a certificate of appealability

(“COA”) in order to appeal the district court’s denial of his motion to vacate, set

aside, or correct his conviction or sentence under 28 U.S.C. § 2255. Exercising

jurisdiction under 28 U.S.C. § 2253(c)(1), we deny a COA and dismiss Mims’s

appeal.

I.    Procedural background

      Pursuant to 18 U.S.C. § 922(g)(1), Mims was convicted by a federal jury of

possession of a firearm by a convicted felon. See United States v. Mims, 191


      *
        This order is not binding precedent except under the doctrines of law of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.
F. App’x 794, 795-96 (10th Cir. 2006) (unpublished) (summarizing the case’s

factual background and affirming Mims’s conviction on direct appeal). Based on

two prior felony convictions for generic burglary and a felony conviction for

aggravated battery, the Presentence Investigation Report (“PSR”) calculated his

offense level as thirty-three under the Sentencing Guidelines, U.S.S.G.

§§ 2K2.1(a)(2); 3A1.2(a); 4B1.4(b)(3)(B) (November, 2004), and the Armed

Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). 1 The PSR further calculated

his criminal history category as VI, resulting in a Guidelines sentencing range of

235-293 months. Mims did not object to the PSR, and the district court sentenced

him to 235 months’ imprisonment.

      On direct appeal, Mims challenged a single jury instruction given at trial;

this Court affirmed his conviction. Mims then sought relief under § 2255,

claiming wide-ranging ineffective assistance of counsel at trial, ineffective

assistance of counsel on appeal, lack of jurisdiction, and violations of the Fourth,

Fifth, and Sixth Amendments. The district court denied Mims’s § 2255 motion as

to all but one of his claims, reserving judgment on whether Mims had received

ineffective assistance when his counsel failed to raise an objection to the PSR

      1
       Mims’s base offense level for a violation of 18 U.S.C. § 922(g)(1) was 24.
That offense level was adjusted upward by three, pursuant to U.S.S.G. § 3A1.2(a),
because Mims engaged in a physical struggle over the firearm with someone he
knew to be a police officer, risking serious bodily injury to the officer.
      Because Mims was an Armed Career Criminal within the meaning of 18
U.S.C. § 924(e)(1) and U.S.S.G. § 4B1.4(b)(3)(B), his offense level was further
adjusted upward to 33.

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under Shepard v. United States, 544 U.S. 13 (2005). After ordering the

Government to “submit evidence necessary to show that [Mims’s] burglary

convictions are qualifying predicate offenses for the ACCA enhancement” (Mem.

& Order, 14 Mar. 2008, at 19), the district court reviewed the charging, judgment,

and sentencing documents for those convictions and concluded that Mims’s

Shepard claim was without merit (Mem. & Order, May 5, 2008, at 1-2). This

application for COA followed.

II.   Standard for issuance of COA

      We will issue a COA “only ‘if the applicant has made a substantial showing

of the denial of a constitutional right.’” United States v. Silva, 430 F.3d 1096,

1100 (10th Cir. 2005) (quoting 28 U.S.C. § 2253(c)(2)). “‘A petitioner satisfies

this standard by demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.’” Id. (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). “In other

words, an applicant must show that the district court’s resolution of the

constitutional claim was either ‘debatable or wrong.’” Charlton v. Franklin, 503

F.3d 1112, 1114 (10th Cir. 2007) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)).




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III.   Discussion

       Because Mims’s § 2255 motion and application are pro se, we construe

them liberally. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002) (citing

Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).

       Mims raises three arguments in his application for COA: (1) that the trial

court erred in enhancing his sentence under U.S.S.G. § 2K2.1(b)(5), by adding

four points to his offense level; (2) that the trial court erred in not consolidating,

under U.S.S.G. § 4A1.2 and 18 U.S.C. § 924(e), his 1989 Kansas conviction and

his 1992 Missouri conviction for burglary; and (3) that the trial court erred, under

Shepard, in looking at police documents to determine whether his prior

convictions for burglary qualified as predicate convictions under the ACCA. We

address each argument in turn.

       A.    Enhancement under U.S.S.G. § 2K2.1(b)(5)

       Mims did not raise this issue in his direct appeal; therefore, he may not, in

the absence of a showing of “cause and actual prejudice,” raise it substantively in

his § 2255 motion. See United States v. Frady, 456 U.S. 152, 167-68 (1982).

Indeed, Mims did not raise the issue in that motion or his supporting

Memorandum of Law, either substantively or within his broad claims of

ineffective assistance of counsel, as we liberally construe those claims.

       Generally, “a litigant’s failure to raise an argument before the district court

. . . results in forfeiture on appeal.” United States v. Jarvis, 499 F.3d 1196, 1201

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(10th Cir. 2007). “We have consistently stated that a party may not lose in the

district court on one theory of the case, and then prevail on appeal on a different

theory.” Id. at 1202 (quotation omitted). Therefore, we need not address this

argument.

      Even if we were to address Mims’s argument as to this issue, however, we

would deny a COA because Mims’s offense level was not enhanced under

U.S.S.G. § 2K2.1(b)(5). (PSR at 6.)

      B.     Consolidation of convictions under U.S.S.G. § 4A1.2 and 18 U.S.C.
             § 924(e)

      Mims next argues that the trial court erred in not consolidating, under

U.S.S.G. § 4A1.2 and 18 U.S.C. § 924(e), his Kansas conviction for burglary in

1989 and his Missouri conviction for burglary in 1992. (See R. Doc. #58, Exs. A,

B.)

             i.    U.S.S.G. § 4A1.2 claim

      Once again, Mims did not raise this issue in his direct appeal; therefore, he

may not, in the absence of a showing of “cause and actual prejudice,” raise it

substantively in his § 2255 motion. Frady, 456 U.S. at 167-68. And once again,

Mims did not raise the issue in that motion or his supporting Memorandum of

Law, either substantively or within his broad claims of ineffective assistance of




                                         -5-
counsel, as we liberally construe those claims. Therefore, we need not address

this argument, which lacks merit under § 4A1.2. 2

             ii.   18 U.S.C. § 924(e) claim

      Construed liberally, Mims’s Memorandum of Law in support of his § 2255

motion and his Application for COA argue that Mims received ineffective

assistance of counsel at sentencing because his attorney failed to object to the

PSR. (Mem. of Law at 21; Application at 5-6.) More specifically, Mims argues

that his Kansas conviction for burglary in 1989 (R. Doc. #58, Ex. A) and his

Missouri conviction for burglary in 1992 (R. Doc. #58, Ex. B) should have been

consolidated and counted as a single predicate “violent felony” for the purposes

of the ACCA.

      Under the ACCA, a person who violates 18 U.S.C. § 922(g) “and has three

previous convictions . . . for a violent felony or a serious drug offense or both,

committed on occasions different from one another,” 18 U.S.C. § 924(e)(1)

(emphasis added), is an armed career criminal whose offense level will be

enhanced under U.S.S.G. § 4B1.4. This Court has explained that a defendant is


      2
       Mims was sentenced under the November, 2004, version of the Guidelines,
but argues that current § 4A1.2, which was revised in November 2007, should
apply to his sentence. Mims mistakenly asserts that Amendment 433
accomplished this revision, and was made retroactive. In fact, the November
2007 revision to § 4A1.2 was accomplished by Amendment 709, which does not
apply retroactively. See U.S. Sentencing Comm’n Guidelines Manual, Supp. to
App. C (Nov. 1, 2008); see also U.S.S.G. § 1B1.10(c) (not including 709 among
the Guidelines amendments given retroactive effect).

                                         -6-
eligible for an enhanced sentence under the ACCA “where his prior convictions

‘arise from separate criminal transactions’” that are “‘distinct in time.’” United

States v. Michel, 446 F.3d 1122, 1134 (10th Cir. 2006) (quoting United States v.

Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990); United States v. Johnson, 130 F.3d

1420, 1430 (10th Cir. 1997)). In Tisdale, we held that where the defendant broke

into a shopping mall and, during the same night, “successively” committed

burglaries of three different structures within the mall, those three burglaries

constituted “separate criminal episode[s]” that counted as predicate violent

felonies under § 924(e). 921 F.2d at 1098-99. Here, where Mims’s burglaries

occurred three years apart, and in two different states, they all the more clearly

constitute “separate criminal episodes” that qualify as predicate offenses under

§ 924(e).

      Therefore, we deny a COA on this issue.

      C.     Shepard challenge to predicate convictions under the ACCA

      In Shepard v. United States, 544 U.S. 13, 15-16 (2005), the Supreme Court

explained that the ACCA “makes burglary a [predicate] violent felony only if

committed in a building or enclosed space (‘generic burglary’), not in a boat or

motor vehicle.” Shepard held that for the purposes of § 924(e), a later sentencing

court “determining the character of an admitted [prior] burglary” generally must

limit its examination to “the statutory definition, charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial

                                         -7-
judge to which the defendant assented.” Id. at 16. That sentencing court may not

“look to police reports or complaint applications to determine whether an earlier

guilty plea necessarily admitted, and supported a conviction for, generic

burglary.” Id.

       In his Memorandum of Law in support of his § 2255 motion, Mims argued

that he received ineffective assistance of counsel because his attorney failed to

object to the trial court’s adoption of the PSR to prove his predicate violent

felonies under the ACCA. (Mem. & Order, 14 Mar. 2008, at 6.) Interpreting the

motion liberally, the district court understood Mims’s argument to be “that

counsel should have objected, making a ‘disputed fact,’ so that the court would

have had to look directly at the judicial documents permissible under Shepard to

see if those burglaries were ‘generic burglaries’ and therefore qualifying

offenses.” (Id.) Exercising abundant caution as to this claim, the district court

ordered the Government to submit those permissible documents for review. (Id.

at 7-8.)

       After reviewing the charging, judgment, and sentencing documents for

Mims’s Kansas and Missouri burglary convictions, the district court concluded

that both were generic burglaries, and thus qualifying predicate offenses, under

§ 924(e). (Mem. & Order, 5 May 2008, at 1-2.) Mims challenges that legal

conclusion on appeal, and we review it de novo, United States v. Kennedy, 225

F.3d 1187, 1193 (10th Cir. 2000) (quotation omitted).

                                         -8-
      The Information for Mims’s 1989 Kansas conviction for class D burglary

charges that he “did unlawfully, willfully, feloniously, knowingly and without

authority enter into a building, to-wit: a residence . . . , with the intent to commit

a theft therein.” (R. Doc. #58, Ex. A at 158.) The Information for Mims’s 1992

Missouri conviction for class C burglary charges that he “knowingly entered

unlawfully in a building . . . for the purpose of committing stealing therein.” (R.

Doc. #58, Ex. B.) Under Shepard, both convictions thus constituted generic

burglaries and qualifying predicate felonies under § 924(e). Therefore, the

district court’s conclusion of law was correct, and we deny a COA on this issue.

IV.   Conclusion

      For the foregoing reasons, we DENY Mims’s request for a certificate of

appealability and DISMISS his appeal.




                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge




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