United States v. Larry Begay

470 F.3d 964, 2006 U.S. App. LEXIS 30494, 2006 WL 3598297
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 12, 2006
Docket05-2253
StatusPublished
Cited by87 cases

This text of 470 F.3d 964 (United States v. Larry Begay) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Larry Begay, 470 F.3d 964, 2006 U.S. App. LEXIS 30494, 2006 WL 3598297 (10th Cir. 2006).

Opinions

HARTZ, Circuit Judge.

Larry Begay was sentenced to 188 months’ imprisonment after pleading guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court determined that each of Mr. Begay’s three previous felony convictions for driving while intoxicated was a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See United States v. Begay, 377 F.Supp.2d 1141 (D.N.M.2005). On appeal Mr. Begay contends that (1) felony driving while intoxicated is not a violent felony under the ACCA, and (2) the district court violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in concluding that it could not impose a sentence below the Guidelines range if a sentence within that range would be reasonable. We have jurisdiction under 28 U.S.C. § 1291 and hold that (1) felony driving while intoxicated is a violent felony under the ACCA, and (2) a district court may impose a sentence outside the Guidelines range even if a sentence within the range would be reasonable. Accordingly, we affirm in part, reverse in part, and remand for re-sentencing.

I. BACKGROUND

According to the presentence report (PSR), in September 2004 Mr. Begay threatened to shoot his sister, Annie Be-gay, with a rifle if she did not give him money. When she informed him that she did not have any money, he repeatedly pulled the trigger, but the rifle did not fire. The next morning she called the Navajo Department of Law Enforcement while he was asleep. Officers responded and found a .22 caliber rifle under a mattress inside his room.

Mr. Begay pleaded guilty to being a felon in possession of a firearm, in viola[966]*966tion of 18 U.S.C. § 922(g)(1). According to the PSR, Mr. Begay had 12 previous convictions for driving while intoxicated (DWI). Three of these convictions were felonies under New Mexico law, which makes the fourth and each subsequent DWI conviction a felony. See N.M. Stat. Ann. § 66-8-102(G)-(J) (1978) (“Upon a fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony and ... shall be sentenced to a term of imprisonment of eighteen months.... Upon a fifth conviction ... an offender ... shall be sentenced to a term of imprisonment of two years....”). The district court determined that a felony DWI is a “violent felony” under the ACCA. With convictions for three such felonies, Mr. Begay was subject to a mandatory minimum sentence of 15 years’ imprisonment under the ACCA, see 18 U.S.C. § 924(e)(1), and his offense level under the United States Sentencing Guidelines (USSG) was 34, see USSG § 4B1.4(a) (“A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal.”); id. § 4B1.4(b)(3)(A) (setting offense level for armed career criminal at 34 “if the defendant used or possessed the firearm or ammunition in connection with ... a crime of violence”). A three-level downward adjustment for acceptance of responsibility, see id. § 3E1.1, combined with Mr. Begay’s prior convictions, which placed him in criminal-history category VI, resulted in a sentencing range of 188 to 235 months.

At sentencing, Mr. Begay contended that the Guidelines range was higher than necessary to accomplish the goals set forth in the list of sentencing factors in 18 U.S.C. § 3553(a). He requested a sentence of 180 months, the minimum permitted under the ACCA. His counsel noted that Mr. Begay had been plagued by alcoholism “for the better part of his life,” and that “he has almost no other conviction other than drinking and — while driving, and also, that his DWI cases do not — have not resulted in physical injury to another.” R. Vol. Ill at 10. He also noted that Mr. Begay’s father and brother had died in a car accident and Mr. Begay “had assumed almost completely the role of caretaker in the family compound.... He was responsible for taking care of all the livestock, for hauling wood and water for the family.” Id. at 11. The district court considered each of the sentencing factors in 18 U.S.C. § 3553(a) and concluded that “in order for me to go below the guidelines, I have to make a finding that, under the sentencing factors, the sentence of 188 months is unreasonable.” Id. at 15. The court continued:

Again, taking a look at the guidelines, the way they’re formulated and how they apply, how the Sentencing Commission has formulated the calculation of the guidelines if the armed career criminal enhancement applies, I cannot make a finding that 188 months is unreasonable under 18 U.S.C., under the sentencing factors of 18 U.S.C. 3553(a).

Id. at 16. The court sentenced Mr. Begay to 188 months’ imprisonment and adjourned.

II. DISCUSSION

A. Violent Felony

1.

The relevant portion of the ACCA definition of violent felony is:

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
[967]*967(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 otherwise involves condtict that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). To determine whether an offense is a “violent felony” under the ACCA, we follow the categorical approach set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); that is, we look only to the statutory definition of the crime. See United States v. Moore, 420 F.3d 1218, 1220 (10th Cir.2005). Mr. Begay’s three felony convictions were for violations of N.M. Stat. Ann. § 66-8-102(A), which states: “It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.” Mr.

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Bluebook (online)
470 F.3d 964, 2006 U.S. App. LEXIS 30494, 2006 WL 3598297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-larry-begay-ca10-2006.