NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0271n.06

Case No. 14-6215

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KERRY WALKER,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF 

KENTUCKY 

OPINION

BEFORE: GILMAN, ROGERS, and SUTTON, Circuit Judges.

SUTTON, Circuit Judge. In 2012, federal agents caught Kerry Walker with ammunition

and two empty gun cases. He pleaded guilty to a brace of federal firearms charges under 

18 U.S.C. § 922(g). Those pleas lengthened his long criminal record, which already featured two 

convictions for second-degree burglary, two for third-degree burglary, and one for first-degree 

stalking—all from Kentucky. The district court sentenced him to 180 months of imprisonment, 

as the Armed Career Criminal Act required. See 18 U.S.C. § 924(e). Walker appeals, arguing 

that a third-degree burglary conviction is not a violent felony under the Act. He also challenges 

his sentence on constitutional grounds. We affirm.
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United States v. Walker

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Courts must sentence someone as an armed career criminal if he has previously been 

convicted of three or more violent felonies. Id. The Act’s definition of “violent felony” 

expressly includes “burglary.” Id. § 924(e)(2)(B)(ii). At least three of Walker’s convictions 

qualify as “burglary” under the Act. He is therefore an armed career criminal. 

Walker’s two convictions for second-degree burglary under Ky. Rev. Stat. § 511.030 take 

us part of the way. That offense, we have repeatedly said, is equivalent to the crime of burglary 

enumerated in the Act, and Walker does not contest the point. See United States v. Jenkins, 

528 F. App’x 483, 485 (6th Cir. 2013). Those convictions satisfy two thirds of the Act’s threeconviction trigger.

Walker’s 1984 conviction for third-degree burglary takes us the rest of the way. A 

person violates that Kentucky law when, “with the intent to commit a crime, he knowingly enters 

or remains unlawfully in a building.” Ky. Rev. Stat. § 511.040. The word “building,” in 

addition to its “ordinary meaning,” encompasses “any structure, vehicle, watercraft or aircraft” 

where people “live[]” or “assemble.” Id. § 511.010. On its face, then, the statute seems broader 

than the Act’s generic definition of burglary, which extends only to “building[s] or other 

structure[s].” Taylor v. United States, 495 U.S. 575, 598–99 (1990). 

Yet in applying the Act to a statute with “divisible” elements, like this one, we may

“consult a limited class of documents” to determine which alternative element “formed the basis 

of the defendant’s prior conviction.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). 

We then may “compare the elements of the crime of conviction (including the alternative 

element used in the case) with the elements of the generic crime.” Id. Unfortunately for Walker, 

Kentucky charged him with “unlawfully enter[ing] or remain[ing] in a dwelling . . . with the 

intent to commit a crime.” R. 37-1 at 1 (indictment); see R. 37-3 at 21 (plea colloquy). Those 
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United States v. Walker

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elements match the elements of the generic offense, see United States v. McGovney, 270 F. 

App’x 386, 388–89 (6th Cir. 2008), and those elements establish that the district court properly 

sentenced Walker as an armed career criminal.

None of Walker’s rejoinders alters this conclusion. Walker argues that Kentucky’s thirddegree burglary statute is not divisible. But we cannot see how: Its definition of “building” sets 

out an “element[] of the offense in the alternative.” Descamps, 133 S. Ct. at 2281. Walker 

argues that third-degree burglary can never be a violent felony because it contains no use-offorce requirement. But the Act specifically enumerates “burglary” as a violent felony; no 

additional use-of-force element is necessary. See 18 U.S.C. § 924(e)(2)(B)(ii). Walker argues 

that his sentence is unconstitutional because a judge and not a jury found the facts of his prior 

convictions. But the Supreme Court rejected that argument in Almendarez-Torres v. United 

States, 523 U.S. 224, 247 (1998), leaving Walker at the mercy of the Court, not us, in deciding 

whether to reconsider that decision. See United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 

2014). Walker argues that the government had a statutory and constitutional duty to notify him 

about the Act’s applicability. But that is not the case, as we have said many times before. See 

United States v. Ball, 771 F.3d 964, 973 (6th Cir. 2014); United States v. Mauldin, 109 F.3d 

1159, 1163 (6th Cir. 1997). And Walker argues that the Act’s residual clause is void for 

vagueness. But we need not reach the issue because three of his prior convictions are violent 

felonies enumerated by the Act, making the residual clause irrelevant.

For these reasons, we affirm.