083320P.pdf   09/22/2009  United States  v.  Matthew David Stymiest
   U.S. Court of Appeals Case No:  08-3320
   U.S. District Court for the District of South Dakota   
   [PUBLISHED] [Loken, Chief Judge, with John R. Gibson and
   Gruender, Circuit Judges]
   Criminal case - Criminal law and sentencing. District court properly
   denied defendant's motion to dismiss based on his claim that he was not
   an Indian and did not err in submitting the issue of Indian status to the
   jury as an element of the Sec. 1153(a) offense; the Indian status jury
   instruction was not an abuse of the district court's discretion; evidence
   was sufficient to support the jury's finding that defendant is an Indian for
   purposes of 18 U.S.C. Sec. 1153(a); instructions on offense did not
   constructively amend the indictment; the court's prior decisions
   classifying generic burglaries of structures other than dwellings as crimes
   of violence under the "otherwise involves" provision of Guidelines Sec.
   4B1.2(a)(2) were not implicitly overruled by Begay, and the district court
   did not err in using the crimes to sentence defendant as a career offender;
   alternatively, if Begay requires a different result under the "otherwise
   involves" provision, the court holds that defendant was convicted of an
   enumerated burglary offense because the "of a dwelling" limitation in
   Guidelines Sec. 4B1.2(a)(2) was invalidated by the Supreme Court's
   decision in Taylor v. United States, 495 U.S. 575 (1990); thus under
   either analysis, the district court correctly ruled that defendant's third-
   degree burglary conviction was a crime of violence for purposes of
   sentencing him as a career offender.