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United States v. Whetzell

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Submitted: November 20, 2009

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

Appellant Tommie Whetzell pleaded guilty to possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), and to making a false statement to acquire a firearm, 18 U.S.C. § 922(a)(6). At sentencing, the district court*fn1 calculated Appellant’s base offense level to be twenty, finding that he had previously been convicted of housebreaking in a military court martial proceeding, and that such a crime qualifies as a “crime of violence” under U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2007). After taking into account a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a) and (b), and a four-level enhancement based on the number of firearms involved, U.S.S.G. § 2K2.1(b)(1)(B), the district court sentenced Appellant to forty-one months’ imprisonment on each count, to be served concurrently. Appellant argues that the district court erred in applying § 2K2.1(a)(4)(A) because the court improperly referenced the underlying facts in Appellant’s conviction, as stated by the military appellate court, in violation of the objective, categorical approach that the Supreme Court set out in Taylor v. United States, 495 U.S. 575, 602 (1990). Upon de novo review, United States v. LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006), we affirm the district court.

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