United States v. Adkins ( 1999 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-50413
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BUZZ D. ADKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-97-CR-194-ALL)
June 18, 1999
Before DeMOSS, PARKER, Circuit Judges, and LAKE,* District Judge.
PER CURIAM:**
Buzz D. Adkins pleaded guilty to one count of possession of a
firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1).1 At sentencing the government sought an enhancement
*
District Judge for the Southern District of Texas,
sitting by designation.
**
Pursuant to 5TH CIR. 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that this opinion should not be published and is not precedent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 5TH CIR. R.
47.5.4.
1
Adkins pleaded guilty without the benefit of a plea
agreement.
of Adkins’ sentence through the application of 18 U.S.C. § 924(e),
which imposes a 15-year mandatory minimum sentence for a defendant
who violates § 922(g) after having been previously convicted of
three violent felonies.2 The government sought the enhancement
because Adkins had been convicted of four violent felonies:
robbery, assault, and two charges of burglary. At sentencing
Adkins objected to the government’s use of the two prior burglary
convictions. The district court overruled his objection and
sentenced Adkins to 180 months imprisonment. Adkins appeal. We
review de novo a defendant’s assertion that a prior conviction does
2
Section 924(e) provides:
(1) In the case of a person who violates
section 922(g) of this title and has three
previous convictions by any court referred to
in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or
both, committed on occasions different from
one another, such person shall be fined not
more than $25,000 and imprisoned not less than
fifteen years . . . .
(2) As used in this subsection--
(B) the term "violent felony" means any crime
punishable by imprisonment for a term
exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a
firearm, knife, or destructive device that
would be punishable by imprisonment for such
term if committed by an adult, that--
(I) has as an element the use, attempted use,
or threatened use of physical force against
the person of another; or
(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to another.
. . .
18 U.S.C. § 924(e)(1).
2
not qualify as a violent felony. See United States v. Williams,
120 F.3d 575, 578 (5th Cir. 1997).
Burglary is specifically listed in § 924(e) as a crime that
constitutes a “violent felony.” While the statute does not go on
to define the elements of “burglary,” that question was answered by
the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990).
There, the Court established a “generic” definition of burglary.
The Court explained that “a person has been convicted of burglary
for the purposes of a § 924(e) enhancement if he is convicted of
any crime . . . having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure,
with intent to commit a crime.” Id. at 599.
In this appeal Adkins does not contest the fact that he has
twice been convicted of burglary in violation of § 30.02 of the
Texas Penal Code. He argues instead that his convictions fall
outside Taylor’s definition of burglary because there is no
evidence that he entered the buildings, a required element in
Taylor’s definition.3 Adkins’ argument focuses, therefore, on
whether the facts underlying his burglary convictions satisfy
Taylor’s generic definition of burglary. That focus is misplaced.
In Taylor the Supreme Court observed that Ҥ 924(e) mandates
a formal categorical approach, looking only to the statutory
3
As to the first burglary conviction, he points to police
reports which indicate that another person was found inside the
burglarized business, while Adkins was found outside the building
by a car that had been backed up to the business. As to the second
conviction, he notes that the police report merely indicates that
Adkins had pawned an item taken from a burglarized building.
3
definitions of the prior offenses, and not to the particular facts
underlying those convictions.” Id. at 600. Thus, “if the
defendant was convicted of burglary in a State where the generic
definition has been adopted . . . then the trial court need find
only that the state statute corresponds in substance to the generic
meaning of burglary.” Id. at 599. The Court reasoned that “the
practical difficulties and potential unfairness of a factual
approach are daunting,” id. at 601, and that “the language of §
924(e) generally supports the inference that Congress intended the
sentencing court to look only to the fact that the defendant had
been convicted of crimes falling within certain categories, and not
to the facts underlying the prior convictions,” id. at 600. Thus,
Adkins’ fact-based challenge to the application of § 924(e) is
improper. See Williams, 120 F.3d at 578 (observing that the court
does not look to the facts underlying the prior conviction). The
relevant issue is whether the Texas burglary statute corresponds to
Taylor’s generic definition.
The Texas burglary statute punishes a person who “without the
effective consent of the owner . . . enters a habitation, or
building . . . with intent to commit a felony or theft.” Texas
Penal Code Ann. § 30.02. In United States v. Silva, 957 F.2d 157,
162 (5th Cir. 1992), we held that § 30.02 is generic burglary
statute that corresponds to Taylor’s definition. Thus, Adkins’ two
burglary convictions qualify as violent felonies under 18 U.S.C. §
924(e).
Adkins, however, argues that § 30.02 is broader than the
4
generic definition in Taylor because under the Texas aiding and
abetting statute, Texas Penal Code Ann. §§ 7.01 & 7.02, a defendant
may be convicted of burglary without proof that the defendant
entered the building. This contention is unavailing. The implicit
assumption in Adkins’ argument is that his burglary convictions
were based on §§ 7.01 and 7.02, and not the burglary statute
itself. But Adkins has pointed to no evidence that he was actually
convicted under §§ 7.01 and 7.02. Moreover, Adkins does not
contest the fact that his two burglary convictions were under §
30.02. Further, neither Taylor nor § 924(e) makes exception for a
burglary conviction based on aiding and abetting or other co-
conspirator liability. See generally, Pinkerton v. United States,
328 U.S. 640 (1945)(any act in furtherance of a conspiracy may be
attributed to all coconspirators regardless of whether those
conspirators participated in the act.)
The district court is AFFIRMED.
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