1 The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation.

2 The Honorable James D. Todd, Chief United States District Judge for the Western District of Tennessee. NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0967n.06 Filed: December 14, 2005 

## United States Court of Appeals FOR THE SIXTH CIRCUIT

___________ No. 04-5999

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the Western * District of Tennessee. Brian Lee Rainwater, *
* Defendant - Appellant. *

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___________ Before GUY, BATCHELDER, and JOHN R. GIBSON, 1 Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge. Brian Rainwater appeals from the judgment of the district court 2finding that he qualified for sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e).-2- On April 28, 2004, Rainwater pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). His Pre sentence Investigation Report listed three previous state convictions for aggravated burglary. In his objections to the Report, Rainwater argued that two of the three convictions should be treated as a single conviction for sentencing purposes. He also contended that, under Blakely v. Washington , 542 U.S. 296 (2004), a jury should make the determination of whether he qualified as an armed career criminal. The district court overruled these objections and found that Rainwater's previous convictions constituted three prior "violent felonies" under the Armed Career Criminal Act. The judge consequently sentenced Rainwater to 180 months of custody, th e mandatory minimum statutory sentence under the Act. On appeal, Rainwater argue s that the Sixth Amendment requires a jury to determine the nature and character of prior convictions for purposes § 924(e). We hold that it does not and affirm Rainwater's sentence.

I.

As an initial matter, we must address the government's argument that we lack jurisdiction to hear this appeal because Rai nwater waived his right to appeal in his written plea agreement. If the appellate-revi ew waiver contained in Rainwater's plea agreement prevents him from challenging how his sentencing was conducted, then we may not address his appeal. United States v. McGilvery , 403 F.3d 361, 363 (6th Cir. 2005). We review this question of law de novo. Id. at 362.

In his plea agreement, Rainwater waived his right to appellate review. However, this waiver contained an exception for "1) an upward departure by the sentencing judge, 2) a sentence in excess of the statutory maximum, or 3) a sentence in violation of law apart from the Sentencing Guidelines ." At sentencing, the district judge acknowledged the terms of the waiver and a dvised Rainwater that he would still have the right to appeal the legality of his sentence on Blakely grounds. The court noted, "[I]f I'm wrong [as to whether Blakely applies], then the sentence I just gave the-3- defendant is illegal. And the plea agreemen t provides that the defendant can appeal if the court gives an illegal sentence." In addition, whenthe government's counsel was asked whether he thought Rainwater had waived his right to appeal on Blakely grounds, he stated, "I'm not trying to fashi on the defendant's argument, but I think that that would perhaps fall within the languageof the plea agreement allowing an appeal but solely on the issue of Blakely if Blakely does apply."

The government argues that this case is co mparable to United States v. Fleming , 239 F.3d 761 (6th Cir. 2001), where we held that a district judge's pronouncements and the comments of counsel at sentenci ng do not control over the language in the plea agreement. However, in Fleming the defendant's plea agreement contained an unqualified waiver of the right to appeal any sentence within the maximum provided in the statutes, as well as a waiver of th e right to appeal the manner in which the sentence was determined. Id. at 762. Thus, when the district judge at sentencing read the defendant the boilerplate Rule 32 notification of the right to appeal, the judge was directly contradicting the term s of the plea agreement. Id. at 764. In the instant case, the district judge simply interpreted th e exception in Rainwater's plea agreement allowing for appeals based on "a senten ce in violation of law apart from the Sentencing Guidelines," to in clude an appeal on Blakely grounds.

We hold that this exception in the pl ea agreement preserved Rainwater's right to appeal the issue of whether the districtcourt's findings with respect to his prior convictions violated his Sixth Amendment rights. Rainwater is not challenging a violation of the Guidelines; he is asserti ng that § 924(e) violates the Sixth Amendment when interpreted to allow judges to determine what qualifies as a "violent felony." The one published appellate opinion addre ssing whether a plea agreement with an identical exception preserved the defendant 's right to appeal on Sixth Amendment grounds the district judge's classification of his prior convictions as "aggravated felonies" under 8 U.S.C. § 1326(a), reach ed the same conclusion. SeeUnited States v. Kempis-Bonola , 287 F.3d 699, 701 (8th Cir. 2002). The Eighth Circuit-4- characterized the issue on app eal not as a challenge to the Sentencing Guidelines, but rather whether "the district court imposeda sentence on the basis of a statute that violates his Sixth Amendment rights." Id. As a result, the terms of Rainwater's plea agreement do not deny us jurisdiction to consider his appeal.

II.

Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant who violates 18 U.S.C. § 922(g) who has three or more prior convictions for violent felonies or serious drug offenses, committe d on separate occasions, is subject to a mandatory minimum sentence of fifteen years. The statutory definition of "violent felony" includes burglary. 18 U.S.C. § 924( e)(2)(B)(ii) (2000). The Supreme Court held in Taylor v. United States , 495 U.S. 575, 599 (1990), th at for purposes of § 924(e), "burglary" refers to any crime thathas as its basic elements the unlawful or unprivileged entry into, or remaining in, a bu ilding or structure, with the intent to commit a crime.

The district court concluded that Rainwater's prior state convictions for three aggravated burglaries, which were all based on guilty pleas, qualified him for sentencing under § 924(e). Rainwater argues th at a jury should have decided whether or not the state convictions for aggravated burglary constituted "violent felonies." He contends that the judge's determination of the nature of his prior convictions by the preponderance of the evidence standard violated the Sixth Amendment principles established in Apprendi v. New Jersey , 530 U.S. 466 (2000), and Blakely v. Washington , 542 U.S. 296 (2004).

Rainwater's argument is foreclosed by our recent decision in United States v. Barnett , 398 F.3d 516, 524-25 (6th Cir.), cert. dismissed126 S. Ct. 33 (2005), where we held that neither Booker v. United States , 125 S. Ct. 738 (2005), nor Apprendi require the nature of a defendant's prior fe lony offenses to be proved to a jury for-5- purposes of sentencing under the Armed Career Criminal Act. We stated, "There is no language in Booker suggesting that the Supreme Court, as part of its remedial scheme adopted in that case, intende d to alter the exception to Apprendiallowing district courts to consider the fact and nature of prior convictions without submitting those issues to the jury." Barnett , 398 F.3d at 525. The Supreme Court's decision in Shepard v. United States , 125 S. Ct. 1254 (2005), does not alte r this result. See, e.g., United States v. Hill , No. 04-6139, 2005 WL 2347851, at *2 (6th Cir. Sept. 26, 2005)(unreported decision); United States v. Wynn , No. 04-5996, 2005 WL 2173786, at *5-6 (6th Cir. Sept. 7, 2005)(unreported decision). After Shepard , other circuits have also continued to hold that a jury fi nding is not required for the determination of the nature and character of prior convic tions for purposes of § 924(e). See, e.g. , United States v. Ivery , 427 F.3d 69, 74-75 (1st Cir. 2005) ; United States v. Thompson , 421 F.3d 278, 283-84 (4th Cir. 2005) ; United States v. Wilson , 406 F.3d 1074, 1075 (8th Cir.), cert. denied , 126 S. Ct. 292 (2005); United States v. Moore , 401 F.3d 1220, 1225 (10th Cir. 2005). These cases emphasize that determining whether the statutory definition of a prior offense meets the § 924(e)(2)(B) standard for a violent felony is a question of law, not fact, and as a resu lt the Sixth Amendment does not require a jury finding on the issue.

In light of this existing law, the distri ct court did not err in determining that Rainwater's prior convictions for aggr avated burglary under Tennessee law were violent felonies for purposes of § 924(e). Accordingly, Rainwater's sentence was mandated by statute, and we affirm.

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