*

 The Honorable John F. Keenan, of the United States District Court for the Southern

District of New York, sitting by designation.

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10-618-cr

United States v. Carter

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure

32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with

this court, a party must cite either the Federal Appendix or an electronic database (with the

notation “summary order”). A party citing a summary order must serve a copy of it on any party

not represented by counsel.

 At a stated term of the United States Court of Appeals for the Second Circuit, held at

the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New

York, on the 22nd day of February, two thousand eleven.

PRESENT:

JOSÉ A. CABRANES,

DENNY CHIN,

Circuit Judges,

JOHN F. KEENAN,

District Judge.*

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UNITED STATES OF AMERICA,

Appellee,

v. No. 10-618-cr

SHAUN CARTER, AKA SHAWA CARTER,

Defendant-Appellant.

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FOR DEFENDANT-APPELLANT: STEVEN M. STATSINGER, Federal Defenders

of New York, Inc., Appeals Bureau, New

York, NY.

FOR APPELLEE: CHRISTOPHER D. FREY, Assistant United

States Attorney (Preet Bharara, United States

Attorney for the Southern District of New

York, on the brief, John P. Collins, Jr., Assistant

United States Attorney, of counsel), Office of

the United States Attorney for the Southern

District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Alvin K. Hellerstein, Judge).

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Defendant-Appellant Shaun Carter (“defendant” or “Carter”) appeals the judgment of the

District Court, following entry of a plea of guilty to one count of an indictment charging Carter with

possession of a firearm after having been convicted of possession of a firearm under 18 U.S.C. 

§ 922(g)(1). The District Court held that defendant was subject to the enhanced penalty provisions

of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which provides for a higher

maximum term of imprisonment, and a mandatory minimum term of imprisonment of 15 years, for

a defendant convicted of being a felon in possession of a firearm, where the defendant has at least

three serious felony convictions for either a “violent felony” or a “serious drug offense.” 18 U.S.C.

§ 924(e). Burglary can be a violent felony. See id., § 924 (e)(2)(B)(ii). Defendant appeals the

application of the ACCA, claiming that the government failed to prove that burglaries he committed

in New Jersey fall under the definition of “burglary” established in Taylor v. United States, 495 U.S.

575 (1990). We assume the parties’ familiarity with the facts and procedural history of the action.

The District Court applied the ACCA upon holding that Carter’s New Jersey state

conviction for burglary qualified as a violent felony under Section 924(e). A district court’s authority

to make factual findings about the nature of a prior conviction for purposes of the ACCA is a

question of law that is reviewed de novo. United States v. Rosa, 507 F.3d 142, 151 n.8 (2d Cir. 2007)

(citing Shepard v. United States, 544 U.S. 13, 16, 24 (2005)) . We review a district court’s legal

conclusions de novo, see United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005), and its findings of

facts for clear error, see United States v. Cuevas, 496 F.3d 256, 267 (2d Cir. 2007).
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Under the ACCA, a defendant is subject to an enhanced penalty if he violates Section 922(g)

and has three previous convictions for a “violent felony” or “serious drug offense,” for which

burglary is considered a violent felony. 18 U.S.C. § 924(e). A crime qualifies as a burglary under the

ACCA if a person “is convicted of any crime, regardless of its exact definition or label, having the

basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with

intent to commit crime.” Taylor, 495 U.S. at 599. Under New Jersey Law, the definition of a

“structure” is broader than the definition in Taylor, as it includes a “ship, vessel, car, vehicle or

airplane.” See N.J. Stat. Ann. § 2C:18-2(a). Where, as here, the statute at issue reaches some conduct

that satisfies the federal definition of burglary, and some conduct which does not, the district court

may review limited additional materials to determine whether the defendant “necessarily admitted”

to entering a “building or structure” as defined in Taylor. See Shepard v. United States, 544 U.S. 13, 26

(2005). “[I]n the context of a conviction based on a plea, the inquiry is ‘limited to the terms of the

charging document, the terms of a plea agreement or transcript of colloquy between judge and

defendant in which the factual basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information.’” United States v. Savage, 542 F.3d 959, 966 (2d Cir.

2008) (quoting Shepard, 544 U.S. at 26). Defendant argues that evidence provided by the judicial

record did not establish that Carter’s 2002 New Jersey burglary convictions met the definition

established in Taylor, and that the District Court erred in conducting an internet search to augment

the judicial record evidence.

The District Court considered the language of the New Jersey state court information and

the transcript of Carter’s guilty plea allocution in order to find that his August 15, 2002 state

burglary conviction was indeed an ACCA predicate. Both a charging paper and a plea allocution are

acceptable sources for such an analysis. See Taylor, 495 U.S. at 602; Shepard, 544 U.S. at 20-21. In the

plea allocution, Carter referred to “entering” two “locations” which were described by address. The

information stated that Carter “did unlawfully enter the structure of Sandra Wiebs located at 1063

Smith Manor Blvd.” The question is whether this evidence “necessarily” shows that Carter entered

into a building. Shepard, 544 U.S. at 26. Although it is a close call, we conclude that it does. To

enter a location at a specific address is to enter a building. Carter argues that these “locations” could

have referred to cars, boats, or other vessels, but we agree with the government that to enter a

“location” designated by a street address only makes sense if the “location” is a building. 

“Location” denotes permanence. If it had been a boat or a van there would have been a reference

somewhere in the colloquy to the make or model of the vehicle, or its license plate number. 

Accordingly, we conclude that the District Court did not err, much less clearly err, in determining,

based upon the judicial record, that the New Jersey crimes were burglaries.

Carter argues, as well, that the District Court inappropriately relied upon the use of Google
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Maps, an internet mapping program, to determine whether the locations were structures under

Taylor. Although both defense counsel and the government agreed during sentencing that under

Taylor and Shepard, the District Court could not take judicial notice of the result of a Google search,

A. 154-55, the District Court initially chose to take judicial notice of the searches. Nevertheless, the

District Court ultimately decided to rely upon the government’s “argument taken from the

indictment and the allocution” as discussed above instead of upon the Google searches. A. 157. 

Because we hold that argument sufficient to establish the applicability of the ACCA, we need not

address the propriety of a purported and disavowed judicial notice of a Google map search. Cf.

United States v. Bari, 599 F.3d 176 (2d Cir. 2010) (holding that the district court did not commit

reversible error when it conducted independent Internet research to confirm its intuition that there

were many types of yellow rain hats available for sale).

CONCLUSION

We have considered all of defendant’s claims on appeal and have found them to be without

merit. Accordingly, the judgment of the District Court is AFFIRMED.

FOR THE COURT,

Catherine O’Hagan Wolfe, Clerk of Court