* Pursua nt to 5 T H C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 23, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41597

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANK ALEXANDER LYNCH,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:02-CR-54-ALL

--------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM: *

Frank Alexander Lynch (“Lynch”) pleaded guilty to illegally

possessing a firearm, in violat ion of 18 U.S.C. § 922(g)(1). He

was sentenced to 210 months imprisonment and five years supervised

release under 18 U.S.C. § 924(e), which requires a minimum sentence

of fifteen years if the defendant has three prior convictions for

a violent felony or serious drug offense or both. On appeal, Lynch

argues that the district court lacked sufficient evidence that his

prior convictions were for violent felonies within the meaning ofNo. 04-41597

-2-

1 542 U.S. 296 (2004).

2 125 S. Ct. 738 (2005).

3 Lynch concedes that his prior convictions for arson and bank

robbe ry were properly considered as predicate offenses under

section 924(e). He only disputes the sufficiency of the evidence

as to the prior convictions for second degree burglary.

4 See Taylor v. United States , 495 U.S. 575, 599 (1990).

5 Id. section 924(e). Lynch also seeks relief based on B lakely v.

Washington 1 and United States v. Booker

. 2 We affirm.

Lynch first claims that the g o vernment lacked sufficient

evidence that his prior convictions for second degree burglary were

“violent felonies” within the meaning of 18 U.S.C. § 924(e). 3 A

burglary conviction is a violent felony under section 924(e) if the

conviction entailed proof of unlawful or unprivileged entry into,

or remaining in, a building or structure with the intent to commit

a crime. 4 If a defendant is convicted under a statute adopting

t his “generic definition” of burglary, then the district cour t

“need find only that the state statute corresponds in substance to

the generic meaning of burglary.” 5

The record before the district court did not contain either a

copy of the state statute under which Lynch was convicted or

authenticated copies of the prior judgments against him. The only

evidence of Lynch’s prior convictions was i n the probation

officer’s presentence report (“PSR”), which gave the dates of his

arrests, the nature of the charges (“Second Degree Burglary”), the

courts in which he was tried, the docket numbers assigned in thoseNo. 04-41597

-3-

6 See United States v. Cotton

, 535 U.S. 625, 631 (20 02);

United States v. Martinez-Cortez

, 988 F.2d 14 08, 1415 (5th Cir.

1993), cert. denied , 510 U.S. 1013 (1993).

7 Cotton

, 535 U.S. at 631 (quo ting Johnson v. United States

, 520 U.S. 46 1, 467 (1997) (internal quotation marks omitted)

(quoting United States v. Olano , 507 U.S. 725, 732 (1993))).

8 Id.

9 See United States v. Hornsby

, 88 F. 3d 336, 339 (5th Cir.

1996) (“A presentence report generally bears sufficient indicia of

reliability to be considered as evidence by the trial judge in

making guideline determination s, especially when there is no

evidence in rebuttal.”). trial courts, and the dates the sentences were imposed. Lynch did

not object in the district court that the PSR contained inadequate

evidence of his prior convictions.

An appellate court may not correct an error that a defendant

failed to raise in the district court unless there is plain error. 6

Under this standard of review, there must be “‘(1) error, (2) that

i s plain, and (3) that affect[s] substantial rights.’” 7 Even if

these conditions are met, this court may exercise its discretion to

correct the error only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. 8

Lynch’s claim fails to meet this plain error test.

First, the PSR provided sufficient indicia of reliability to

enable the district court to rely on it in making the sentencing

determination. 9 The PSR noted the dates of Lynch’s arrests, the

nature of the charges (“Second Degree Burglary”), the courts in

which he was tried, the docket numbers assigned in those trial

courts, and the dates the sentences were imposed. Lynch has neverNo. 04-41597

-4-

10 Between 1986 and 1993, the relevant years for purposes of

Lynch’s convictions, the Colora do statute defined second degree

burglary as "knowingly break[ing] an entrance into, or enter[ing],

or remain[ing] unlawfully in a building or occupied structure with

intent to commit therein a crime against a person or property."

C OLO

. R EV

. S TAT

. § 18-4-203(1) (1986 ), amended by C OLO

. R EV

. S TAT

. § 18-4-203(1) (1999). rebutted the information in the PSR rega rding his prior

convictions, nor has he suggested that the information is

incorrect. He did not object to the PSR when it was introduced, he

did not object to the convictions for purposes of calculating his

criminal history category, and he does not deny the existence of

the convictions in arguing that there was insufficient evidence

that the convictions were violent felonies.

Second, there is no dispute as to the statute that applied to

Lynch’s convictions. Lynch was convicted under the Colorado

s tatute regarding second degree burglary, which was sufficientl y

n arrow to be classified as “generic burglary.” 10 Thus, the

convictions constituted “violent felonies” within the meaning of 18

U.S.C. § 924(e).

For these reasons, the record before us makes clear that Lynch

was convicted of “generic” burglaries and thus vio lent felonies

under 18 U.S.C. § 924(e). Thus, even assuming the district court

erred in failing to obtain additional evidence of Lynch’s

convictions, the error did not seriously affect the fairness,No. 04-41597

-5-

11 See Martinez-Cortez

, 988 F.2d at 1415-16 (“By definition,

no ‘manifest injustice’ occurs when a sentence imposed in error by

the district court is nonetheless one that would have been lawful

had extant evidence of the prior conviction been introduced.”).

12 542 U.S. 296 (2004).

13 125 S. Ct. 738 (2005).

14 United States v. Mares

, 402 F.3d 511, 520 (5th Cir. 2005),

petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).

15 United States v. Valenzuela-Quevedo

, 407 F.3d 728, 733 (5th

Cir. 2005).

16 See Mares , 402 F.3d at 521. integrity, or public reputation of judicial proceedings. 11 Lynch’s

claim fails to meet the plain error standard of review.

Lynch also claims that his sentence was wrong fully imposed

under Blakely v. Washington 12 and United States v. Booker

. 13 Lynch

does not argue that the district court erroneously enhanced his

sentence by finding facts not admitted by him. Instead, he argues

that the district court erred in treating the Sentencing Guidelines

as mandatory and failing to consider other factors at sentencing.

Because Lynch did not raise this ar gument before the district

court, we review his claim for plain error. 14 Although treating the

Guidelines as mandatory constituted error that was plain, 15 Lynch

has failed to establish that the error affected his s ubstantial

rights. Lynch must demonstrate that the sentencing judge would

have reached a significantly different result if the sentence had

been imposed under an advisory scheme rather than a mandatory one. 16

Lynch presents no evidence that the district court would have

reached a different conclusion had the Sentencing Guidelines beenNo. 04-41597

-6-

17 See id

. at 522; United States v. Martinez-Lugo , 411 F.3d

597, 601 (5th Cir. 2005). advisory. The only relevant evidence in the record indicates that

Lynch was sentenced to the maximum term permitted under the

Guidelines. Under these circumstances, Lynch cannot show that the

error, if any, affected his substantial rights. 17 Therefore,

Lynch’s claim fails to meet the plain error standard of review.

AFFIRMED.