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No. 95-2690

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Eastern District of Missouri.

Joseph W. Demint, * 

 * [PUBLISHED]

Appellant. *

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 Submitted: January 19, 1996

 Filed: January 26, 1996

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Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

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PER CURIAM.

Joseph W. Demint appeals his sentence as an armed career

criminal pursuant to the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e)(1), and U.S.S.G. § 4B1.4(a). We affirm.

Following a jury trial, Demint was convicted of being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Demint's indictment and presentence report (PSR) set forth the

following three prior convictions as the basis for sentencing under

the ACCA: (1) a 1979 Louisiana conviction for simple burglary; (2)

a 1979 Florida conviction for attempted burglary and for possession

of burglary tools; and (3) a 1980 Louisiana conviction for simple

burglary. In objections to the PSR and again at sentencing, Demint

claimed that he should not be sentenced under the ACCA. First,

Demint argued that, because his 1980 Louisiana conviction was for

burglary of a camp, the applicable Louisiana statute did not fit
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The Honorable Stephen N. Limbaugh, United States District

Judge for the Eastern District of Missouri.

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within the generic definition of burglary set forth in United

States v. Taylor, 495 U.S. 575, 599 (1990); that the charging

papers and final judgment did not indicate that the "camp" was

considered a "structure"; and that the court should not consider

the guilty-plea paper from the conviction to determine whether the

conviction fell within the generic Taylor definition of burglary.

Second, Demint argued that the 1979 Florida conviction for

attempted burglary was not a "violent felony" for purposes of the

ACCA. After determining that both convictions constituted "violent

felonies" as defined in 18 U.S.C. § 924(e)(2)(B)(ii), the district

court1 overruled Demint's objections and sentenced him under the

ACCA to 290 months imprisonment. Demint reiterates his arguments

on appeal. We address each conviction in turn.

A. 1980 Louisiana Conviction For Simple Burglary.

"Burglary" is included in the definition of violent felonies

that may constitute predicate offenses for a section 924(e)(1)

enhancement. 18 U.S.C. § 924(e)(2)(B)(ii). For purposes of

section 924(e), "burglary" is "any crime . . . having the basic

elements of unlawful or unprivileged entry into, or remaining in,

a building or structure, with intent to commit a crime." Taylor,

495 U.S. at 599 (formulating a "generic" definition of burglary).

The Louisiana statute under which Demint was convicted defines

burglary more broadly than the generic definition in Taylor,

because the statute includes vehicles and watercraft. See La. Rev.

Stat. Ann. § 14:62 (West 1980); cf. United States v. Taylor, 932

F.2d 703, 707 (8th Cir.) (noting Missouri statute broader than

Taylor definition where it included booths, tents, boats, vessels,

and railroad cars), cert. denied, 502 U.S. 888 (1991); United

States v. Payton, 918 F.2d 54, 55 & n.1 (8th Cir. 1990) (noting
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Iowa statue broader than Taylor definition where it included

railroad cars, boats, and vessels), cert. denied, 502 U.S. 948

(1991). Therefore, the district court properly referred to the

charging paper and the text of Demint's guilty plea to determine

whether Demint's plea was to a charge meeting the generic

definition of burglary. See Taylor, 495 U.S. at 600-02; United

States v. Barney, 955 F.2d 635, 639 (10th Cir. 1992); United States

v. Sweeten, 933 F.2d 765, 769 (9th Cir. 1991); cf. Taylor, 932 F.2d

at 708-09 (on remand from 495 U.S. 575; guilty plea was to charge

meeting generic definition of burglary; probation report showed

defendant pleaded guilty to burglary of building). These documents

show that Demint "committed Simple Burglary of a camp," and that

the elements of the crime were that he "entered a structure

unauthorized with the intent to commit a theft therein or a

felony." Under Louisiana law a "camp" is considered a "structure."

See State v. Palmer, 305 So. 2d 513, 513-14 (La. 1974).

Accordingly, we conclude that Demint's 1980 Louisiana conviction

fit within the generic definition of "burglary," and that the

district court properly determined this conviction constituted a

"violent felony" under section 924(e)(2)(B)(ii).

B. 1979 Florida Conviction For Attempted Burglary.

Under Florida law, Demint's conviction for the attempted

burglary of a dwelling is not "burglary" as that term is used in

section 924(e)(2)(B)(ii). See Taylor, 495 U.S. at 599. The

parties dispute, however, whether Demint's attempted burglary

conviction meets the "catch-all" provision of section

924(e)(2)(B)(ii)--that is, "otherwise involves conduct that

presents a serious potential risk of physical injury to another."

Under Florida law, "`burglary' means entering or remaining in

a structure or a conveyance with the intent to commit an offense

therein." Fla. Stat. ch. 810.02 (1994). The Florida attempt
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statute under which Demint was convicted states in part:

(1) A person who attempts to commit an offense

prohibited by law and in such attempt does any

act toward the commission of such offense, but

fails in the perpetration or is intercepted or

prevented in the execution thereof, commits

the offense of criminal attempt . . . .

Fla. Stat. ch. 777.04 (1994) (emphasis added).

Demint argues that because the Florida attempt statute can be

violated based on "any act," this court should find that his

conviction does not constitute a violent felony under the catch-all

provision of section 924(e)(2)(B)(ii). See United States v.

Permenter, 969 F.2d 911, 912-15 (10th Cir. 1992) (attempted

burglary does not fall within the catch-all provision in part

because under Oklahoma law "any act" done toward the commission of

the attempted crime may provide basis for conviction for attempt).

We reject this argument, however, because the Florida courts have

interpreted the attempt statute to require more. Specifically,

attempted burglary requires proof of (1) specific intent to commit

burglary and (2) "any overt act reasonably calculated to accomplish

the commission of the offense intended, going beyond mere

preparation but falling short of accomplishing the crime intended."

Ellis v. Florida, 425 So. 2d 201, 202 (Fla. Ct. App. 1983); see

Groneau v. Florida, 201 So. 2d 599, 603 (Fla. Ct. App.) (attempt is

punishable when act is performed with intent to complete crime, but

completion fails due to intervening cause), cert. denied, 207

So. 2d 452 (Fla. 1967).

We conclude the essential elements of the crime of attempt in

Florida--as interpreted by Florida's courts--are equivalent to

those under the Minnesota law discussed in United States v.

Solomon, 998 F.2d 587, 589-91 (8th Cir.) (under Minnesota law,

attempted burglary requires an overt act beyond mere preparation,
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and law was intended to punish those who would have completed the

crime absent intervening circumstances; therefore, attempted

burglary in Minnesota, like second-degree burglary, "carries a

serious potential risk of physical injury to another"), cert.

denied, 114 S. Ct. 639 (1993). Thus, we conclude Florida's

attempted burglary law punishes only "conduct that presents a

serious potential risk of physical injury to another," and

therefore the district court properly concluded Demint's conviction

falls within the "catch-all" provision of 924(e)(2)(B)(ii).

Because Demint's three previous convictions constituted

"violent felonies" as defined in 18 U.S.C. § 924(e)(2)(B), the

district court correctly concluded he was subject to an enhancement

under the ACCA. Thus, the district court did not err in sentencing

Demint as an armed career criminal. See U.S.S.G. § 4B1.4(a)

(defendant subject to enhanced sentence under 18 U.S.C. § 924(e) is

"an armed career criminal"). We deny Demint's motion to supplement

the record.

The judgment is affirmed.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.