F I L E D

United States Court of Appeals

Tenth Circuit

August 31, 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID LOUIS KING,

Defendant - Appellant.

No. 04-2137

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CR-02-2092-MV)

Amy Sirignano, Assistant United States Attorney, (and David C. Iglesias, United

States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff -

Appellee.

Kenneth A. Gleria, Albuquerque, New Mexico, for Defendant - Appellant. 

Before KELLY, BALDOCK, and HARTZ, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant David Louis King pleaded guilty to one count of

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

and 924(a)(2) and was sentenced to 180 months imprisonment under the Armed
1As Mr. King filed his appeal before Booker was decided, he argues in his

brief that the district court violated his Sixth Amendment right under Blakely v.

Washington, 542 U.S. 296 (2004). However, in this opinion we refer to Booker

because it addressed the federal Sentencing Guidelines. 

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Career Criminal provisions in 18 U.S.C. § 924(e) (“Armed Career Criminal Act”

or “ACCA”) and U.S.S.G. § 4B1.4. On appeal, he challenges his sentence

arguing that (1) the district court erred in characterizing his prior commercial

burglary conviction as a crime of violence and thereby using it as a basis to

enhance his sentence under the ACCA and § 4B1.4 of the Sentencing Guidelines,

and (2) the district court made factual findings related to this prior conviction in

violation of the Sixth Amendment as interpreted by Booker v. United States, __

U.S. __, 125 S. Ct. 738 (2005).1 Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm. 

In February 2004, Mr. King pleaded guilty to one count of a two-count

indictment charging him with being a felon in possession of a firearm. I R. Docs.

37, 56. The Presentence Investigation Report (“PSR”) recommended that Mr.

King’s sentence be enhanced under the ACCA and U.S.S.G. § 4B1.4 based on his

prior violent felony convictions for armed robbery, commercial burglary, and

residential burglary. II R. at 8. Mr. King objected to the inclusion of his 

commercial burglary conviction arguing it is not a violent felony as defined by the

ACCA and Taylor v. United States, 495 U.S. 575 (1990), because the record did
2

 Section 4B1.4 states:

(a) A defendant who is subject to an enhanced sentence under the

provisions of 18 U.S.C. § 924(e) is an armed career criminal.

(b) The offense level for an armed career criminal is the greatest

of:

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not establish that the storage unit he unlawfully entered was a “structure.” I R.

Doc. 61. The district court rejected Mr. King’s argument finding that “[t]he

indictment and guilty plea demonstrate [Mr. King] was charged with and admitted

that he entered . . . a structure.” Aplt. Br. Attach. E at 26. The district court also

considered photographs of the storage unit proffered by the government

concluding, “[i]t is apparent from the photographs . . . that this self storage unit is

a structure.” Id. at 27. Mr. King was sentenced as an armed career criminal to

180 months imprisonment, the bottom of the applicable guideline range.

A. Sentence Enhancements

The ACCA mandates that a defendant who violates 18 U.S.C. § 922(g) and

has “three previous convictions by any court referred to in section 922(g)(1) of

this title for a violent felony . . . shall be . . . imprisoned not less than fifteen

years.” 18 U.S.C. § 924(e)(1). Section 4B1.4 of the Sentencing Guidelines

defines those subject to enhancement under the ACCA as “armed career

criminal[s]” and likewise provides for an enhanced sentencing offense level and

criminal history category.2 Burglary is one of the offenses included in the
(1) the offense level applicable from Chapters Two and

Three; or

(2) the offense level from § 4B1.1 (Career Offender) if 

applicable; or

(3) (A) 34, if the defendant used or possessed the firearm

or ammunition in connection with either a crime

of violence, as defined in § 4B1.2(a), or a

controlled substance offense, as defined in §

4B1.2(b), or if the firearm possessed by the

defendant was of a type described in 26 U.S.C. §

5845(a); or

(B) 33, otherwise. 

(c) The criminal history category for an armed career criminal is

the greatest of:

(1) the criminal history category from Chapter Four, Part A

(Criminal History), or § 4B1.1 (Career Offender) if

applicable; or

(2) Category VI, if the defendant used or possessed the

firearm or ammunition in connection with either a crime

of violence, as defined in § 4B1.2(a), or a controlled

substance offense, as defined in § 4B1.2(b), or if the

firearm possessed by the defendant was of a type

described in 26 U.S.C. § 5845(a); or

(3) Category IV.

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ACCA’s definition of “violent felony.” 18 U.S.C. § 924(e)(2)(B). The ACCA

does not define “burglary;” however, in interpreting the Act, the Supreme Court

adopted a generic definition. Taylor, 495 U.S. at 599. Thus, “any crime,
- 5 -

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 a crime” is a burglary and a violent felony under the ACCA. Id.

(emphasis added). 

The Taylor Court also held that in determining whether a given conviction

meets the generic definition of burglary, the sentencing court is only permitted to

consider “the fact of conviction and the statutory definition of the prior offense.” 

Id. at 602. This has been termed a “categorical approach.” United States v.

Hernandez-Rodriguez, 388 F.3d 779, 782 (10th Cir. 2004). However, when a

conviction results from a non-generic statute, the sentencing court can go “beyond

the mere fact of conviction” and consider the charging papers and jury

instructions to determine whether the jury was “actually required . . . to find all

the elements of generic burglary in order to convict.” Taylor, 495 U.S. at 602. 

Since Taylor, the Court has applied its holding to convictions resulting from plea

agreements as well, and similarly, where a defendant pleads guilty under a nongeneric statute, the sentencing court can consider “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.” Shepard

v. United States, __ U.S. __, 125 S. Ct. 1254, 1263 (2005).

Here, Mr. King argues that his commercial burglary conviction is not a
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violent felony because the evidence properly considered under the categorical

approach does not establish the storage unit was a “structure.” We review de

novo whether a prior conviction is a violent felony for purposes of enhancement

under the ACCA and U.S.S.G. § 4B1.4. United States v. Moyer, 282 F.3d 1311,

1315 (10th Cir. 2002); United States v. Concha, 233 F.3d 1249, 1253 (10th Cir.

2000). 

Mr. King was convicted of commercial burglary under a non-generic

burglary statute. See N.M. Stat. Ann. § 30-16-3 (defining burglary as unlawful

entry of “any vehicle, watercraft, aircraft, dwelling or other structure”). Thus, the

district court properly considered the indictment and plea agreement related to the

offense. The indictment charged that “on or about the 10th day of July, 1995, in

Bernalillo County, New Mexico, [Mr. King] entered a structure, American SelfStorage Unit #136 . . ., without authorization or permission, with intent to commit

a theft therein.” Aplt. Br. Attach. B at 1 (emphasis added). Mr. King

subsequently pleaded guilty to the offense “as charged in . . . [the] Indictment.” 

Aplt. Br. Attach C at 1. Simply by the words used, both of these documents

establish that Mr. King was convicted for unlawfully entering a structure. See

United States v. Hill, 53 F.3d 1151, 1154-55 (10th Cir. 1995) (en banc) (finding

generic burglary elements satisfied where charging document alleged defendant

unlawfully “enter[ed] into a certain building” and defendant pleaded guilty after
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“having been duly informed of the nature of the charge”) (internal quotations

omitted); United States v. Pluta, 144 F.3d 968, 976 (6th Cir. 1998) (finding

generic burglary conviction where charging document stated defendant entered a

person’s home).

Relatedly, Mr. King argues the district court erred when it considered 

photographs of the storage unit in deciding whether it was a structure. 

Photographs are indisputably outside the bounds of permissible evidence

considered by a sentencing court under the categorical approach. However, given

that the indictment and plea agreement sufficiently establish that Mr. King

entered a structure, this error is harmless. Fed. R. Crim. P. 52(a). 

B. Sixth Amendment Argument

Finally, Mr. King asserts that the district court violated his Sixth

Amendment rights by finding facts related to his prior conviction. As this

argument was not raised below, we review for plain error. United States v.

Trujillo-Terrazas, 405 F.3d 814, 817 (10th Cir. 2005). The Supreme Court’s

Sixth Amendment holding in Booker reaffirms that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125

S.Ct. at 756 (emphasis added). As we have recently held, this prior conviction
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exception “subsumes inquiries into whether a given conviction constitutes a

‘violent felony.’” United States v. Serrano, 406 F.3d 1208, 1220 (10th Cir. 2005)

(citation omitted). Indeed, “[b]ecause determining whether a given felony

constitutes a ‘violent felony’ is a question of law and not fact, the Sixth

Amendment does not require that determination to be made by a jury.” Id.

(citation omitted). 

Mr. King argues the exception for prior convictions does not apply in this

case because in considering the photographs of the storage unit the district court

went beyond simply finding the fact of the prior conviction, instead finding facts

regarding the nature of the conviction. See Aplt. Br. at 23-24. He again asserts

that “[b]ut for the district court’s reliance on the photographic exhibits offered by

the government, no admissible basis exists to establish a prior conviction for a

generic burglary crime within the meaning of [the ACCA].” Id. at 24-25. 

However, this argument is foreclosed by our conclusion that the indictment and

plea agreement establish the generic elements of burglary, and we need not

address it further. 

AFFIRMED.