                                                                         F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                       September 14, 2006
                                 T E N T H C IR C U IT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                       No. 06-5066
          v.                                             (N.D. Oklahoma)
 LO Y D G LEN N G W A RTN EY ,                     (D.C. No. 05-CR-116-HDC)

               Defendant - Appellant.



                            O R D E R A N D JU D G M E N T *


Before T A C H A , A N D ER SO N , and B R O R B Y , Circuit Judges.




      After examining the briefs and appellate record, this panel has determ ined

unanim ously that oral argum ent would not m aterially assist in the determ ination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered subm itted without oral argum ent.

      Defendant-appellant Loyd Glenn Gwartney pled guilty to one count of

possession of a firearm after previously being convicted of a felony, in violation

of 18 U .S.C. § 922(g)(1). Because he had num erous prior felony convictions,


      *
       This order and judgment is not binding precedent, except under the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.
including several felony convictions for driving under the influence, Gwartney

was sentenced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e). He was accordingly sentenced to 180 months’ im prisonm ent, the

statutory m inim um under the ACCA, followed by five years of supervised release.

Gwartney appeals, and we affirm his sentence.




                                 BACKGROUND

      On M arch 17, 2005, a Tulsa, Oklahoma, police officer stopped the pickup

truck driven by Gwartney because it had a broken taillight. During the course of

the traffic stop, the officer noticed a sawed-off shotgun in the pickup truck cab

and learned that Gwartney was a convicted felon. Gwartney pled guilty, and his

case proceeded to sentencing.

      In preparation for Gwartney’s sentencing, the United States Probation

Office prepared a presentence report (“PSR”). The PSR recomm ended that

Gwartney be sentenced under the ACCA because of his six prior felony

convictions, which the PSR categorized as violent. Five of the six convictions

were for driving under the influence (“DUI”). Gwartney filed an objection to the

use of the DUI convictions as prior violent felonies under the ACCA. The district

court rejected Gwartney’s objection and sentenced him under the ACCA to the

m andatory m inim um sentence of fifteen years, or 180 m onths. This appeal

followed.

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                                    D ISC U SSIO N

      Pursuant to section 924(e) of the ACCA, a “person who violates section

922(g) of this title [being a felon in possession of a firearm ] and has three

previous convictions . . . for a violent felony . . . shall be fined under the title and

imprisoned not less than fifteen years. . . .” 18 U.S.C. § 924(e). “[W ]hether a

particular conviction was for a ‘violent felony’ under § 924(e) is . . . a question of

law for the court.” U nited States v. Harris, 447 F.3d 1300, 1303 (10th Cir. 2006).

      The definition of “violent felony” under the A CCA is as follow s:

      (B) the term “violent felony” means any crim e punishable by
      imprisonm ent 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 the 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). That definition is virtually identical to the one

contained in the United States Sentencing Com m ission, Guidelines M anual

(“USSG ”), §4B1.2(a), for career offenders. As the Seventh Circuit has observed,

“there is no basis for reading these provisions differently.” United States v.

Sperberg, 432 F.3d 706, 708 (7th Cir. 2005).

      As Gwartney concedes before us and conceded before the district court, our

circuit recently held that the crim e of felony DUI is a crim e of violence for

purposes of applying USSG §4B1.2(a). United States v. M oore, 420 F.3d 1218

(10th Cir. 2005). As we stated in M oore, “[d]riving w hile intoxicated presents a

                                           -3-
‘serious potential risk of physical injury to another’ and therefore is a crim e of

violence under §4B1.2(a)(2).” Id. at 1221. Accordingly, our circuit has clearly

determ ined that a felony DUI conviction qualifies as a violent felony under the

ACCA. All other circuits which have considered the matter have also held that

felony DUI is a crim e of violence under §4B1.2(a) or a violent felony under the

ACCA. See United States v. Veach, 455 F.3d 628, 636 (6th Cir. 2006)

(§4B1.2(a)); United States v. M cG ill, 450 F.3d 1276 (11th Cir. 2006) (§4B1.2(a));

United States v. M cCall, 439 F.3d 967 (8th Cir. 2006 (en banc) (ACCA);

Sperberg (ACCA); United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th

Cir. 2000) (holding that m isdemeanor DUI was a crim e of violence under

§4B1.2(a)).

      Gwartney acknowledges this adverse precedent, and merely preserves the

issue for possible reconsideration by this panel. However, the decision in M oore

clearly binds the panel in this case “‘absent en banc reconsideration or a

superseding contrary decision by the Suprem e Court.’” Shivwits Band of Paiute

Indians v. Utah, 428 F.3d 966, 973 (10th Cir. 2005), (quoting In re Sm ith, 10 F.3d

723, 724 (10th Cir. 1993)), petition for cert. filed, 74 USLW 3532 (M ar. 9, 2006)

(05-1160).




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                        C O N C L U SIO N

For the foregoing reasons, Gwartney’s sentence is AFFIRMED.

                                     ENTERED FOR THE COURT


                                     Stephen H. Anderson
                                     Circuit Judge




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