United States v. Beierle

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 29, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 16-8040 (D.C. No. 2:13-CR-00098-NDF-1) JAMES KEITH BEIERLE, (D. Wyo.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before LUCERO, O’BRIEN, and PHILLIPS, Circuit Judges. _________________________________ In February 2014, James Keith Beierle was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At his first sentencing hearing, the district court reviewed Beierle’s criminal history from the 1980s, which included state felony convictions for burglary, robbery, and possession of a weapon by a prisoner. The court determined that these three convictions qualified as violent felonies under the residual clause1 of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). Beierle’s status as an armed career criminal required the * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 The residual clause included in ACCA’s definition of a “violent felony” any offense that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). district court to impose a mandatory-minimum fifteen-year sentence. But the next year, while Beierle’s direct appeal was still pending, the Supreme Court struck down ACCA’s residual clause on vagueness grounds. See Johnson v. United States, 135 S. Ct. 2551, 2557, 2563 (2015). In response to Johnson, we reversed Beierle’s ACCA-imposed fifteen-year sentence while affirming his conviction. See United States v. Beierle, 810 F.3d 1193, 1201–02 (10th Cir. 2016) [Beierle I]. On remand, the district court resentenced Beierle to seventy-seven months of imprisonment under the U.S. Sentencing Guidelines. Beierle now attacks that sentence, too, arguing that the district court miscalculated his total offense level by adding two levels because his offense “involved three or more firearms,” see U.S. Sentencing Guidelines Manual § 2K2.1(b)(1) (U.S. Sentencing Comm’n 2013), and by adding another four levels because he “used or possessed any firearm . . . in connection with another felony offense,” see id. § 2K2.1(b)(6)(B). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm Beierle’s sentence. BACKGROUND Beierle’s current troubles began on a Sunday afternoon in January 2013 at a truck stop in Burns, Wyoming. Beierle was standing in the checkout line when he met a couple—Mr. Redfern and his wife, Ms. Nygren—whom he eventually invited to “hang out” and drink beer at his shop. Supp. R. Vol. IV at 563. After about three hours, Redfern and his companions left, and Beierle thought that they had gone for good. But when he went back into his house, Beierle saw 2 Redfern’s five-year-old daughter still there, playing with his own daughter. Beierle asked his daughter what was going on, and she replied ...

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