                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2971
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Daniel Akers,                           *
                                        *      [PUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: March 4, 2005
                                Filed: June 1, 2005
                                 ___________

Before RILEY, SMITH, and BENTON, Circuit Judges.
                            ___________

PER CURIAM.

      Daniel Akers appeals an 87-month sentence entered by the district court.1
Akers argues that an Iowa state jail term was constitutionally invalid and should not
have counted in his criminal history and that the Iowa Department of Corrections
lacked subject matter jurisdiction to administratively sentence him. We disagree and
affirm.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
                                    I. Background
       Daniel Akers was on probation for two felony offenses. Officers went to
Akers's residence to serve a probation-violation warrant on him. Akers's girlfriend
told the police that she had not seen Akers for several days. The officers requested
permission from Akers's girlfriend to search the home. She consented to the search.
During their search, the officers found Akers hiding in a closet and arrested him.
Additionally, the officers found ammunition for a wide variety of firearms, two stun
guns, and some marijuana in Akers's home and vehicle.

       Akers was charged as a felon-in-possession of ammunition and entered a plea
of guilty. Akers's underlying Iowa felony conviction was for third-degree burglary for
which he received only probation. Akers violated that probation and was sentenced
to 60 days in jail by an administrative judge in the Iowa Department of Corrections
pursuant to a pilot sentencing program. Subsequently, the Iowa Supreme Court
declared the program unconstitutional. Klouda v. Sixth Judicial Dist. Dep't of Corr.
Serv., 642 N.W.2d 255 (Iowa 2002).

       At Akers's federal sentencing, because of the 60-day state sentence, he received
two criminal history points under U.S.S.G. § 4A1.1(b), instead of only one criminal
history point under § 4A1.1(c). In addition, Akers received another criminal history
point under § 4A1.1(e). As a result, Akers had an offense level of 21 and a criminal
history category of V for a sentencing range of 70 to 87 months. The district court
sentenced Akers to 87 months' imprisonment, three years of supervised release, and
a $100 special assessment. From this sentence, Akers appeals.

                                   II. Discussion
       Akers first argues that his 60-day jail term is constitutionally invalid under
Klouda, and therefore, should not be counted in his criminal history under U.S.S.G.
§ 4A1.2 ("Sentences resulting from convictions that . . . have been ruled
constitutionally invalid in a prior case are not to be counted"). Additionally, Akers


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contends that the 60-day jail sentence is invalid because the Iowa Department of
Corrections lacked subject matter jurisdiction to impose a sentence. Both of Akers
arguments are without merit.

       While it is true that § 4A1.2 prohibits using sentences derived from
unconstitutional decisions to calculate criminal history, Akers misreads Klouda.
According to Akers, Klouda automatically and retroactively invalidated all prior
sentencing made under the administrative procedure employed by the Iowa
Department of Corrections. This is incorrect. The Iowa Supreme Court expressly
restricted the application of Klouda, stating, "[o]ur decision shall not apply
retroactively to cases in which a final decision has been rendered unless the case is
pending on appeal and the issue was preserved." Klouda, 642 N.W.2d at 263. Akers
failed to preserve the issue. He did not challenge the Iowa Department of Corrections
administrative procedure at the state level, and thus, Klouda did not apply to
invalidate his 60-day jail term. Akers's jail sentence is not unconstitutional.

        Akers also argues that the Department of Corrections did not have subject
matter jurisdiction when it administratively sentenced him. We disagree. A court must
have subject matter jurisdiction "to hear and determine cases of the general class to
which the proceedings in question belong." Christie v. Rolscreen Co., 448 N.W.2d
447, 450 (Iowa 1989) (citing Wederath v. Brant, 287 N.W.2d 591, 594 (Iowa 1980)).
A challenge to subject matter jurisdiction may be brought at any time, even for the
first time on appeal. State ex rel. Vega v. Medina, 549 N.W.2d 507, 508 (Iowa 1996).
The Iowa supreme court based its Klouda decision on the principle of separation of
powers. It did not hold that subject matter jurisdiction was lacking. If it had done so,
the Klouda court would have applied its decision retroactively but the court expressly
refused to do so.

      For the foregoing reasons we affirm the decision of the district court.
                      ______________________________


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