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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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. *

___________

___________

Before GUY, BATCHELDER, and JOHN R. GIBSON,1

 Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Brian Rainwater appeals from the judgment of the district court2

 finding 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 Presentence 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, the mandatory minimum statutory sentence

under the Act. On appeal, Rainwater argues 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 Rainwater waived his right to appeal in his

written plea agreement. If the appellate-review 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 advised 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 agreement provides that the defendant can appeal

if the court gives an illegal sentence." In addition, when the 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 fashion the defendant's argument, but I think that

that would perhaps fall within the language of the plea agreement allowing an appeal

but solely on the issue of Blakely if Blakely does apply."

The government argues that this case is comparable 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 sentencing 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 the 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 terms of the plea agreement. Id. at 764. In the instant case,

the district judge simply interpreted the exception in Rainwater's plea agreement

allowing for appeals based on "a sentence in violation of law apart from the

Sentencing Guidelines," to include an appeal on Blakely grounds. 

We hold that this exception in the plea agreement preserved Rainwater's right

to appeal the issue of whether the district court's findings with respect to his prior

convictions violated his Sixth Amendment rights. Rainwater is not challenging a

violation of the Guidelines; he is asserting 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 addressing 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), reached the same conclusion. See United States

v. Kempis-Bonola, 287 F.3d 699, 701 (8th Cir. 2002). The Eighth Circuit
-4-

characterized the issue on appeal not as a challenge to the Sentencing Guidelines, but

rather whether "the district court imposed a 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, committed 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), that for purposes of §

924(e), "burglary" refers to any crime that has as its basic elements the unlawful or

unprivileged entry into, or remaining in, a building 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 that 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. dismissed 126 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 felony 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, intended to alter the exception to Apprendi allowing

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 alter 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 finding is not required for the determination of

the nature and character of prior convictions 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 result the Sixth Amendment does not require a

jury finding on the issue. 

In light of this existing law, the district court did not err in determining that

Rainwater's prior convictions for aggravated burglary under Tennessee law were

violent felonies for purposes of § 924(e). Accordingly, Rainwater's sentence was

mandated by statute, and we affirm.

_______________