* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### February 13, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DANIEL EUGENE WRIGHT, Defendant-Appellant. No. 05-5022 (Northern District of Oklahoma) (D.C. No. 03-CR-167-CVE)

ORDER AND JUDGMENT *

Before BRISCOE , LUCERO and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1 (G). This case is, therefore, ordered submitted without oral argument.-2-

I. Introduction Appellant Daniel Eugene Wright appeals the districtcourt’s determination that he was an armed career criminal as defined by the United States Sentencing Guidelines Manual (“USSG”) § 4B1.4 and the Armed Ca reer Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We assert jurisdicti on pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and affirm

. II. Background Wright pleaded guilty in the United States DistrictCourt for the Northern District of Oklahoma to conspiracy to manufacture, possess, and distribute methamphetamine in violation of 21 U.S.C. §§ 846 an d 841(a)(1), and possession of a firearm by a convicted felon in violation of 1 8 U.S.C. § 922(g)(1). Wright was classified as an armed career criminal because he had three prior convictions for a violent felony. 18 U.S.C. § 924(e). The dis trict court determined Wright’s prior New Mexico convictions for (1) Commercial Bur glary and Larceny over $250, (2) Armed Robbery and Aggravated Assault with a Deadly Weapon, and (3) Commercial Burglary and Larceny over $2,500, consti tuted violent felonies. Wright was sentenced to two 188 month terms of impr isonment, with the terms to run concurrently. See USSG § 4B1.4 (providing offense levels for armed c areer criminals). Wright challenges the use of his firstcommercial burglary conviction as a predicate violent felony under the ACCA.-3--4-

III. Discussion We review de novo whether a prior conviction is a violent felony for purposes of enhancement under the ACCA and USSG § 4 B1.4. United States v. King , 422 F.3d 1055, 1057 (10th Cir. 2005). Burglary i s listed as a violent felony in the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii). In Taylor v. United States , however, the Supreme Court held Congress only intended the A CCA to be triggered by crimes having the elements of “generic” burglary. 495 U.S. 575, 598 (1990). “Generic” burglary, according to the Court, consist s of an “unlawful or unprivileged entry into, or remaining in, a buildin g or structure, with intent to commit a crime.” Id

. Wright was convicted of commercial burglary under anongeneric statute.
See N.M. Stat. Ann. § 30-16-3(B) (criminalizing entry into “any vehicle, watercraft, aircraft, dwelling or other structure”) . Therefore, we must look to other documents to determine whether Wright actuall y committed a generic burglary by entering a building or structure. United States v. Shepard, 125 S. Ct. 1254, 1257 (2005); Taylor , 495 U.S. at 602. We are limited, however, “to examining the . . . charging document, written pleaagreement, transcript of plea colloquy, and any explicit factual finding by the t rial judge to which the defendant assented.” Shepard, 125 S. Ct. at 1257.-5-

The district court determined the transcript of the plea colloquy where Wright pleaded guilty to commercial burglary was su fficient to establish that Wright admitted entering a building or structure. At the plea hearing, the prosecutor read the plea agreement and then stated: Had this matter proceeded to trial, the State would have shown . . . through the testimony of Gilbert Zamara, Joe Carosc o, Joe Garli, and Alfred Soto of the Valencia Police Department, thaton or about the 19th day of December, 1992 in Valencia County, Stat e of New Mexico, Daniel Wright entered the Furrs Supermarketwithout authorization or permission with intent to commit atheft therein. ROA, vol. III, Ex. 2 at 2. After the judge advised Wright of his constitutional rights, he entered a plea of guilty. The judge the n asked “[y]ou heard the Assistant District Attorney state the evidence they would produce in this matter were you to go to trial. Do you dispute any portio n of that evidence?” Id . at 7. Wright answered “[n]o.” Id . The judge also asked defense counsel whether she had “any questions or additions to the factual basi s?” Id . Counsel also answered “[n]o.” Id

. Wright argues this exchange does not satisfy the de mands of Shepard because it does not demonstrate that Wright “necess arily” admitted facts equating to generic burglary. Specifically, Wright contends he did not confirm or admit to the factual basis provided by the prosecution; inst ead, he merely stated he did not dispute the factual basis. Wright also argues his status as an armed career criminal should not rest on the vagaries of an advo cate’s statement of the factual-6-

basis. Wright’s argument, however, is not persuasi ve. Wright did not merely acquiesce by silence to the factual basis provided by the prosecution; he affirmatively adopted it by stating on the record t hat he did not dispute the factual basis. See NMRA Rule 5-304(G) (“Notwithstanding the acceptanc e of a plea of guilty or guilty but mentally ill, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy i t that there is a factual basis for the plea.”). Additionally, the factual basis for t he plea did not rest solely on the prosecutor’s statement. Wright was given an opport unity to either confirm or dispute the factual basis, and he confirmed it. De fense counsel also had an opportunity to dispute the factual basis and declin ed. After reviewing the transcript of the plea hearing, we conclude Wright “necessarily” admitted facts necessary to establish his prior commercial burglary conviction involved entry of a building or structur e. Therefore, the district court did not err in sentencing Wright as an armed careercriminal.
IV. Conclusion For the foregoing reasons, Wright’s sentence is AFFIRMED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge