### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 10-11225 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. THOMAS EDDINS, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:10-CR-105-1
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Thomas Eddins pleaded guilty to one count of being a felon in a possession of a firearm pursuant to 18 U.S.C. § 922(g). The district court sentenced him to 180 months in prison, the statutory minimum provided by the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). Eddins appeals, arguing that his 1985 Texas burglary conviction does not qualify under the ACCA. The Government

moves for summary affirmance or, alternatively, an extens i on of time to file a brief. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Novembe r 21, 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-11225 Document: 00511672167 Page: 1 Date Filed: 11/21/2011No. 10-11225

We review the interpre t ation of a sentence enhancement provision de

novo. United States v. Montogmery , 402 F.3d 482, 485 (5th Cir. 2005). Pursuant to Taylor v. United States , 495 U.S. 575, 599 (1990), generic burglary, which is

a listed ACCA predicate offense, is the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a c ri m e . ” Th e charging documents to which Eddins pleaded guilty state that Eddins entered

a building not open to the public, without the effective consent of the owner, with the intent to commit th e f t

. This language tracks that of § 30.02(a)(1) of the Texas Penal Code, under both the current version and the version in effect in 1985. We have held that burglary under § 30.02(a)(1) cons titu t e s generic burglary for purpose s o f th e ACCA. United States v. Silva , 957 F.2d 157, 162 (5th Cir. 1992); see also United States v. Constante , 54 4 F

. 3 d 5 8 4 , 585-86 (5th Cir. 2008) (no ti n g th a t Silva held that burglary under § 30.02(a)(1) is generic burglary). Eddins’s reliance on our holding in Constante , 544 F.3d at 587, that

an offense under § 30.02(a)(3) is not generic burglary because it lacks the requisite element of intent, is misplaced. Eddins attempts to distinguish his offense because it was a second degree felony under the 1985 version of the burglary statute and thus necessarily lacked the violent or potentially violent conduct that would make it a first degree felony. He relatedly argues that his crime di d n o t involve purposeful, violent, and aggressive conduct, which he contends is required by the analysis of Begay

v. United States , 553 U.S. 137 (2008). We discern nothing in his arguments that alters our holding in Silva , 957 F.2d at 162, that the elements of § 30.02(a)(1) correspon d t o th o se of generic burglary, i.e., the “nonconsensual entry into a building with intent to commit a crime.” Finally, Eddins contends that the district court improperly enhanced his sentence in violation of the rule of Apprendi v. New Jersey , 530 U.S. 466 (2000). He argues that whether the prior convictions were committed on dif f erent occasions, as required under the ACCA, is a fact that must b e al l e g e d in the
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indictment and either proved by the Government beyond a reasonable doubt or admitted by the defendant. As Eddins concedes, this argument i s foreclosed. See United States v. White , 465 F.3d 250, 254 (5th Cir. 200 6). Although we conclude that the judgment should be affir m e d w ithout further briefing, summary disposition is not appropriate. See United States v. Holy Land Found. for Relief & Dev. , 445 F.3d 771, 781 (5th Cir. 2006). Thus, we deny the Government’s motion for summary affirmance or, alternatively, for an extension of time to file a brief. JUDGMENT AFFIRMED; MOTION DENIED.

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