United States v. Michael Kuntz

PER CURIAM. Michael Kuntz appeals the 180-month sentence the district court 1 imposed after he pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Kuntz argues (1) that the district court erred in sentencing him as an armed career criminal because his prior burglaries were not separate instances, but amounted to a single event or spree; (2) that his sentence, based on prior convictions, violates the Sixth Amendment because United States v. Booker, 548 U.S. 220, 125 S.Ct. 788, 160 L.Ed.2d 621 (2005), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), challenge the continued viability of Almendarez-Torres v. United States, 523 U.S. 224, 243-44, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (prior criminal history is sentencing factor for court to decide, not fact issue for jury to decide); and (3) that due process and ex post facto principles prevent the application of Booker’s remedy of advisory Guidelines to his pre-Booker criminal conduct. We conclude that the district court did not err in sentencing Kuntz as an armed career criminal, because Kuntz’s four prior burglaries, over a period of five days, were discrete criminal episodes. See United States v. Gray, 85 F.3d 380, 381 (8th Cir.) (discrete criminal episodes, rather than dates of conviction, trigger sentence enhancement under the Armed Career Criminal Act (ACCA); burglaries committed only twenty-five minutes apart were separate offenses under ACCA), cert. denied, 519 U.S. 907, 117 S.Ct. 268, 136 L.Ed.2d 192 (1996). Kuntz’s argument under Shepard — that his sentence should not have been increased by the district court based on pri- or convictions — was recently rejected in United States v. Johnson, 408 F.3d 535, 540 (8th Cir.2005) (“Shepard did not alter the rule that a court may consider prior criminal history as a sentencing factor.”). We further conclude that because Kuntz was sentenced to the statutory minimum, there is no merit to his argument that the district court’s application of Booker’s remedy of advisory Guidelines to his pre Booker criminal conduct was an ex post facto or due process violation. See United States v. Kelly, 436 F.3d 992, 995 (8th Cir.2006) (ex post facto and due process clauses require that defendant have fair warning of punishment for crimes which he committed; finding no ex post facto or due process violation where district court’s variance above Guidelines range was below statutory maximum and sentence was not unexpected or indefensible by reference to expressed law prior to conduct in issue). We note that Booker was not implicated by Kuntz’s sentence because the sentence was based on the statutory mandatory minimum. See United States v. Thomas, 398 F.3d 1058, 1063-64 (8th Cir.2005) (use of prior felony conviction to impose statutory minimum penalties does not implicate Booker); United States v. Vieth, 397 F.3d *596 615, 620 (8th Cir.) (no Booker issue arises where sentence was based on statutory mandatory minimum rather than on application of Guidelines), cert. denied, — U.S. -, 125 S.Ct. 2560, 162 L.Ed.2d 286 (2005). Accordingly, we affirm. Footnotes [1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.