                                                                          FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS                    December 6, 2005
                                   TENTH CIRCUIT
                                                                          Clerk of Court

    UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
    v.                                                    No. 05-6095
    ROCKY LEE KIRBY,                                (D.C. No. CR-04-60-M)
                                                         (W. D. Okla.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT       *




Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.


         Rocky Lee Kirby pled guilty to one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 180 months

imprisonment. On appeal, Kirby challenges the application of the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e), to his sentence. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm.

                                    I. Background

         On December 23, 2003, Kirby and his friend, Teddy Brown, were passengers


*
  This order and judgment is not binding precedent, except under the doctrines of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.
in a vehicle driven by Felicha Moitner. When a police officer stopped the vehicle

for an expired tag, Moitner panicked and passed her handgun over to Kirby, who

concealed it on his person. During the stop, the officer found marijuana and other

paraphernalia in the car. As a result, the officer arrested the three individuals and

transported them to jail. While Kirby was being booked, a jailer noticed a red cloth

sticking out of the waistband of his jeans. The red cloth turned out to be a glove

containing a loaded .25 caliber semi-automatic pistol.

      A federal grand jury returned an indictment charging Kirby with one count of

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

carried a statutory maximum sentence of ten years pursuant to 18 U.S.C. § 924(c).

Subsequently, the government announced that it would seek a sentence enhancement

under the ACCA based on Kirby’s prior convictions.           The presentence report

(“PSR”) recommended an offense level of 34 and a criminal history category of VI,

for a guideline range of 262 to 327 months. At the sentencing hearing, the district

court rejected Kirby’s contention that the ACCA enhancement did not apply. The

district court, however, granted Kirby a two-level adjustment for acceptance of

responsibility, resulting in a guideline range of 210 to 262 months.             After

considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the district court

determined that a sentence below the advisory guideline range was warranted, and

sentenced Kirby to 180 months, the minimum term under the ACCA.

                                   II. Discussion

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      Kirby’s challenge to his sentence enhancement under the ACCA “is a legal

issue subject to de novo review.” United States v. Moudy, 132 F.3d 618, 619

(1998) (citing United States v. Barney, 955 F.2d 635, 638 (10th Cir. 1992)).

      The ACCA “mandates a minimum 15-year prison sentence for anyone

possessing a firearm after three prior convictions for serious drug offenses or

violent felonies.” Shepard v. United States, 125 S. Ct. 1254, 1257 (2005). The

PSR relied on five prior felony convictions to support application of the ACCA to

Kirby’s sentence: three convictions for second-degree burglaries of buildings; one

conviction for escape; and one conviction for possession of marijuana with intent

to distribute. While Kirby concedes that his prior conviction for possession of

marijuana with intent to distribute is a “serious drug offense” as defined in §

924(e)(2)(A), he asserts that the characterization of his prior convictions for

burglary and escape as “violent felon[ies]” under § 924(e)(2)(B) is improper.

Specifically, Kirby maintains that the three burglaries “were factually non-violent

burglaries of closed business establishments.” In addition, Kirby claims that his

escape conviction did not involve violence, as he was convicted “for failing to

return to the halfway house where he had been placed.”

      The term “violent felony” includes:

      any crime punishable by imprisonment 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 use of explosives, or


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      otherwise involves conduct that presents a serious potential risk of
      physical injury to another.


18 U.S.C. § 924(e)(2)(B) (emphasis added).

      It is well established that under the ACCA, we utilize a formal categorical

approach, looking “only to the fact of conviction and the statutory definition of

the prior offense.” Taylor v. United States, 495 U.S. 575, 602 (1990); see United

States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993); United States v. King,

979 F.2d 801, 802 (10th Cir. 1992). For purposes of § 924(e), we “do not inquire

into the particular factual circumstances surrounding the past offenses.” King,

979 F.2d at 802.

      In Taylor, the Supreme Court specifically addressed the categorical

approach for the predicate offense of “burglary,” and found that the language and

legislative history of § 924(e), as well as the practical difficulties inherent in

relying upon the factual background of a prior conviction, did not support a

factual approach to interpreting the enhancement statute. 495 U.S. at 600-01.

Relevant to Kirby’s appeal, the Supreme Court stated that § 924(e)’s legislative

history

      indicate[d] that Congress singled out burglary for inclusion as a
      predicate offense . . . because of its inherent potential for harm to
      persons. Congress apparently thought that all burglaries serious
      enough to be punishable by imprisonment for more than a year
      constituted a category of crimes that shared this potential for
      violence and that were likely to be committed by career criminals.


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      There never was any proposal to limit the predicate offense to some
      special subclass of burglaries that might be especially dangerous,
      such as those where the offender is armed, or the building is
      occupied, or the crime occurs at night.


Id. at 588. The Supreme Court went on to hold that an offense constitutes

“burglary” for purposes of § 924(e) . . . , if either its statutory definition

substantially corresponds to ‘generic’ burglary, or the charging paper and jury

instructions actually required the jury to find all the elements of generic burglary

in order to convict the defendant.” Id. at 602; see also Shepard, 125 S.Ct. at 1257

(holding that to determine whether a guilty plea to burglary under a nongeneric

statute necessarily admitted the elements of generic burglary, a sentencing court

is limited “to examining the statutory definition, charging document, written plea

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

judge to which the defendant assented”). 1

      Likewise, this court has held that, regardless of the underlying facts, an

“escape” is a “violent felony” under the ACCA. In United States v. Gosling, we

stated that “every escape scenario is a powder keg, which may or may not explode

into violence and result in physical injury to someone at any given time, but


1
  We are not asked to determine whether Kirby’s prior convictions for burglary
satisfy the “generic” definition of burglary. Kirby’s brief states that while
Oklahoma’s statute defining second-degree burglary is a “non-generic” statute as
discussed in Taylor, the government provided the charging documents for his
burglary convictions, which eliminated any “non-generic” burglary issue for
appeal. Aplt. Br. at 9 n.1.

                                            5
which always has the serious potential to do so.” 39 F.3d 1140, 1142-43 (10th

Cir. 1994). We took this rationale one step further in United States v. Moudy:

      The reasons we articulated in Gosling for holding escape to be a
      crime of violence apply to all escapes, whether or not violence was
      actually involved. Thus, an escape always constitutes “conduct that
      presents a serious potential risk of physical injury to another,” for
      purposes of the [Armed Career Criminal] Act as well as for the
      career offender provisions of the sentencing guidelines.

132 F.3d at 620.


      Kirby asks us to hold that § 924(e) does not preclude a fact-specific inquiry

to determine whether his prior convictions qualify as “violent” felonies. This

position, however, is not supported by either Supreme Court precedent, or the

prior decisions of this court. Although Kirby’s prior convictions for burglary and

escape may not have involved violence, our “categorical” inquiry is limited to

whether a defendant commits a crime which possesses the potential for violence.

      Lastly, Kirby mentions, without further analysis, that to deny the

sentencing court the ability to make a factual assessment into the underlying

crime violates his Fifth Amendment due process rights and subjects him to cruel

and unusual punishment under the Eighth Amendment. We fail to see how the

district court’s inability to consider the lack of violent circumstances surrounding

Kirby’s prior convictions implicated due process concerns or resulted in a

sentence that was disproportionate to Kirby’s crime. Kirby had ample


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opportunity to challenge the characterization of his previous convictions in his

written objections to the PSR and at his sentencing hearing. Additionally, we

note that the district court thoroughly considered the sentencing factors

enumerated in § 3553(a) and sentenced Kirby below the recommended guideline

range. In particular, the district court commented that fifteen years “certainly is

sufficient to reflect the seriousness of the defendant’s offense, to promote respect

for the law, to deter further criminal conduct, and to protect the public from Mr.

Kirby.” Vol. II at 7.

      Accordingly, Kirby’s sentence is AFFIRMED.


                                              Entered for the Court



                                              Mary Beck Briscoe
                                              Circuit Judge




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