United States v. Adkins

Opinion

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.