## 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), Albuquerqu e, New Mexico, for Plaintiff - Appellee. Kenneth A. Gleria, Albuquerque, New Mexico, for Def endant - Appellant.

Before KELLY , BALDOCK , and HARTZ , Circuit Judges.

KELLY , Circuit Judge.

Defendant-Appellant David Louis King pleaded guiltyto one count of being a felon in possession of a firearm in violati on of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and was sentenced to 180 months impri sonment under the Armed1 As Mr. King filed his appeal before Bookerwas decided, he argues in his

brief that the district court violated his Sixth Am endment right under Blakely v. Washington , 542 U.S. 296 (2004). However, in this opinion we refer to Booker because it addressed the federal Sentencing Guideli nes. - 2 - 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 cha llenges his sentence arguing that (1) the district court erred in charac terizing his prior commercial burglary conviction as a crime of violence and ther eby 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 re lated 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 co unt of a two-count indictment charging him with being a felon in posse ssion 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 object ed 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 did2 Section 4B1.4 states:

(a) A defendant who is subject to an enhanced sente nce under the provisions of 18 U.S.C. § 924(e) is an armed careercriminal. (b) The offense level for an armed career criminal is the greatest of: - 3 - not establish that the storage unit he unlawfully e ntered was a “structure.” I R. Doc. 61. The district court rejected Mr. King’s ar gument finding that “[t]he indictment and guilty plea demonstrate [Mr. King] w as charged with and admitted that he entered . . . a structure.” Aplt. Br. Atta ch. E at 26. The district court also considered photographs of the storage unit proffere d 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 applicab le 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 referr ed 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 t he Sentencing Guidelines defines those subject to enhancement under the ACCAas “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 care er 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 possesse d the firearm or ammunition in connection with either a c rime of violence, as defined in § 4B1.2(a), or a control led 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.

- 4 - ACCA’s definition of “violent felony.” 18 U.S.C. § 924(e)(2)(B). The ACCA does not define “burglary;” however, in interpretin g 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 buil ding or structure , with intent to commit a crime” is a burglary and a violent felony under the ACCA. Id. (emphasis added). The TaylorCourt also held that in determining whether a give n conviction meets the generic definition of burglary, the sente ncing 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 appro ach.” United States v. Hernandez-Rodriguez , 388 F.3d 779, 782 (10th Cir. 2004). However, whe n a conviction results from a non-generic statute, the sentencing court can go “beyond the mere fact of conviction” and consider the charg ing papers and jury instructions to determine whether the jury was “actually required . . . to find all the elements of generic burglary in order to convic t.” 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 defendan t pleads guilty under a nongeneric statute, the sentencing court can consider “the charging document, the terms of a plea agreement or transcript of colloquybetween judge and defendant in which the factual basis for the plea was confirm ed 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- 6 -

violent felony because the evidence properly consid ered under the categorical approach does not establish the storage unit was a “structure.” We review de novo whether a prior conviction is a violent felonyfor 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 undera non-generic burglary statute. See N.M. Stat. Ann. § 30-16-3 (defining burglary as un lawful entry of “any vehicle, watercraft, aircraft, dwelli ng or other structure”). Thus, the district court properly considered the indictment a nd 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 astructure , American SelfStorage Unit #136 . . ., without authorization or p ermission, with intent to commit a theft therein.” Aplt. Br. Attach. B at 1 (emphas is added). Mr. King subsequently pleaded guilty to the offense “as char ged 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 unlawfull y 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- 7 -

“having been duly informed of the nature of the cha rge”) (internal quotations omitted); United States v. Pluta , 144 F.3d 968, 976 (6th Cir. 1998) (finding generic burglary conviction where charging documentstated defendant entered a person’s home). Relatedly, Mr. King argues the district court erred when it considered photographs of the storage unit in deciding whetherit was a structure. Photographs are indisputably outside the bounds of permissible evidence considered by a sentencing court under the categori cal 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 v iolated his Sixth Amendment rights by finding facts related to his pr ior 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 Bookerreaffirms that “[a]ny fact (other than a prior conviction ) which is necessary to support a sentence exceedin g the maximum authorized by the facts established by a plea of gu ilty or a jury verdict must be admitted by the defendant or proved to a jury beyon d a reasonable doubt.” 125 S.Ct. at 756 (emphasis added). As we have recentlyheld, this prior conviction- 8 -

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 factof 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 th e photographic exhibits offered by the government, no admissible basis exists to estab lish a prior conviction for a generic burglary crime within the meaning of [the A CCA].” Id. at 24-25. However, this argument is foreclosed by our conclus ion that the indictment and plea agreement establish the generic elements of bu rglary, and we need not address it further.
AFFIRMED.