United States v. Wright , 166 F. App'x 393 ( 2006 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    February 13, 2006
    TENTH CIRCUIT                      Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 05-5022
    v.                                            (Northern District of Oklahoma)
    (D.C. No. 03-CR-167-CVE)
    DANIEL EUGENE WRIGHT,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before BRISCOE, LUCERO and MURPHY, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision 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.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    I. Introduction
    Appellant Daniel Eugene Wright appeals the district court’s determination
    that he was an armed career criminal as defined by the United States Sentencing
    Guidelines Manual (“USSG”) § 4B1.4 and the Armed Career Criminal Act
    (“ACCA”), 
    18 U.S.C. § 924
    (e). We assert jurisdiction pursuant to 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    , and affirm.
    II. Background
    Wright pleaded guilty in the United States District Court for the Northern
    District of Oklahoma to conspiracy to manufacture, possess, and distribute
    methamphetamine in violation of 
    21 U.S.C. §§ 846
     and 841(a)(1), and possession
    of a firearm by a convicted felon in violation of 
    18 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 district court determined Wright’s
    prior New Mexico convictions for (1) Commercial Burglary and Larceny over
    $250, (2) Armed Robbery and Aggravated Assault with a Deadly Weapon, and (3)
    Commercial Burglary and Larceny over $2,500, constituted violent felonies.
    Wright was sentenced to two 188 month terms of imprisonment, with the terms to
    run concurrently. See USSG § 4B1.4 (providing offense levels for armed career
    criminals). Wright challenges the use of his first commercial burglary conviction
    as a predicate violent felony under the ACCA.
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    -3-
    III. Discussion
    We review de novo whether a prior conviction is a violent felony for
    purposes of enhancement under the ACCA and USSG § 4B1.4. United States v.
    King, 
    422 F.3d 1055
    , 1057 (10th Cir. 2005). Burglary is 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 ACCA to be triggered by
    crimes having the elements of “generic” burglary. 
    495 U.S. 575
    , 598 (1990).
    “Generic” burglary, according to the Court, consists of an “unlawful or
    unprivileged entry into, or remaining in, a building or structure, with intent to
    commit a crime.” 
    Id.
    Wright was convicted of commercial burglary under a nongeneric 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 actually 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 plea agreement, transcript of plea
    colloquy, and any explicit factual finding by the trial judge to which the
    defendant assented.” Shepard, 
    125 S. Ct. at 1257
    .
    -4-
    The district court determined the transcript of the plea colloquy where
    Wright pleaded guilty to commercial burglary was sufficient 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 Carosco, Joe Garli, and
    Alfred Soto of the Valencia Police Department, that on or about the
    19th day of December, 1992 in Valencia County, State of New
    Mexico, Daniel Wright entered the Furrs Supermarket without
    authorization or permission with intent to commit a theft 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 then 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 portion 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 basis?” Id. Counsel also answered
    “[n]o.” Id.
    Wright argues this exchange does not satisfy the demands of Shepard
    because it does not demonstrate that Wright “necessarily” admitted facts equating
    to generic burglary. Specifically, Wright contends he did not confirm or admit to
    the factual basis provided by the prosecution; instead, 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 advocate’s statement of the factual
    -5-
    basis. Wright’s argument, however, is not persuasive. Wright did not merely
    acquiesce by silence to the factual basis provided by the prosecution; he
    affirmatively adopted it by stating on the record that he did not dispute the factual
    basis. See NMRA Rule 5-304(G) (“Notwithstanding the acceptance 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 it that there is a factual basis for
    the plea.”). Additionally, the factual basis for the plea did not rest solely on the
    prosecutor’s statement. Wright was given an opportunity to either confirm or
    dispute the factual basis, and he confirmed it. Defense counsel also had an
    opportunity to dispute the factual basis and declined.
    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 structure. Therefore, the district court
    did not err in sentencing Wright as an armed career criminal.
    IV. Conclusion
    For the foregoing reasons, Wright’s sentence is AFFIRMED.
    ENTERED FOR THE COURT
    Michael R. Murphy
    Circuit Judge
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Document Info

Docket Number: 05-5022

Citation Numbers: 166 F. App'x 393

Judges: Briscoe, Lucero, Murphy

Filed Date: 2/13/2006

Precedential Status: Non-Precedential

Modified Date: 8/3/2023