United States v. Gerald Randolph Wall ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4172
GERALD RANDOLPH WALL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James P. Jones, District Judge.
(CR-98-10061)
Submitted: August 31, 1999
Decided: September 17, 1999
Before WILKINS, HAMILTON, and TRAXLER,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James R. Cromwell, VOGEL & CROMWELL, L.L.C., Roanoke, Vir-
ginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Thomas J. Bondurant, Jr., Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Gerald Wall pled guilty to possession of a firearm after being con-
victed of a felony and was sentenced as an armed career criminal to
a mandatory term of fifteen years imprisonment. See 18 U.S.C.A.
§§ 922(g)(1), 924(e) (West Supp. 1999). Wall appeals the district
court's finding that he was an armed career criminal, contending that
the court erred in finding that his prior conviction for statutory bur-
glary of an office was a violent felony under § 924(e).
A defendant is an armed career criminal if he violates § 922(g) and
has three or more prior convictions for violent felonies or serious drug
offenses committed on separate occasions. As defined in
§ 924(e)(2)(B), the term "violent felony" includes burglary. The dis-
trict court found that Wall had three predicate convictions--two prior
convictions for burglary and one for malicious wounding. The district
court rejected Wall's argument that his 1974 conviction for breaking
and entering the office of a construction company with intent to com-
mit larceny did not qualify as "generic burglary" as defined in Taylor
v. United States, 495 U.S. 575 (1990), because the indictment did not
specify that the office was a "building or structure."
In Taylor, the Supreme Court held that a defendant "has been con-
victed of burglary for purposes of a § 924(c) enhancement if he is
convicted of any crime, regardless of its exact definition or label, hav-
ing the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime."
Taylor, 495 U.S. at 599. A sentencing court should generally consider
only the fact of the prior conviction and the statutory definition of the
offense to determine whether the prior offense was a burglary within
the meaning of § 924(e)(2)(B)(ii). See id. at 602. However, when the
statutory definition of the offense includes conduct which would not
constitute burglary under § 924(e), the court may look to the indict-
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ment or information and the jury instructions to find out whether the
jury had to find all the elements of generic burglary to convict the
defendant. Id.
Because the Virginia statute included unlawful entry into an auto-
mobile, ship, or railroad car,* it was broader than the Taylor defini-
tion of generic burglary and the district court properly considered the
indictment to determine whether the jury found the elements of
generic burglary. Wall claims that the jury's finding that he was guilty
of breaking and entering an "office" does not establish that he unlaw-
fully entered "a building or structure." We disagree. See United States
v. White, 997 F.2d 1213, 1217-18 (7th Cir. 1993) (California burglary
convictions resulting from thefts of purses from offices in state office
building during business hours were generic burglaries because defen-
dant had "entered places where he had no lawful or privileged right
of access," intended to commit crimes, and did commit crimes).
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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*Wall was convicted under Va. Code Ann. §§ 18.1-88, 18.1-89
(Michie 1974).
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