United States v. Anderson ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-31292 F I L E D
Summary Calendar September 28, 2007
Charles R. Fulbruge III
UNITED STATES OF AMERICA Clerk
Plaintiff-Appellee
v.
IRVING D ANDERSON
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:05-CR-20182-1
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Irving D. Anderson appeals the 188-month sentence imposed by the
district court following his guilty plea to being a felon in possession of firearms.
The district court sentenced Anderson as an armed career offender pursuant to
18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 based on Anderson’s previous Wisconsin
burglary convictions.
Anderson argues that the district court erred in subjecting him to an
enhanced sentence as an armed career offender based on the recitation of the
*
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should not be published and is not precedent except under the limited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.
No. 06-31292
facts of his Wisconsin burglary convictions set forth in the Presentence Report
and the documents of record pertaining to the convictions, which include the
Wisconsin criminal complaints. The Government argues that the enhancement
should be upheld because, as to three of Anderson’s burglary convictions, the
judgment of conviction establishes that Anderson pleaded guilty to an offense
identical to “generic burglary” as defined by Taylor v. United States, 495 U.S.
575 (1990).
A district court's decision whether a defendant’s three previous convictions
were for violent felonies as defined by § 924(e) must be made in accordance with
the law of the jurisdiction in which the defendant was convicted. See United
States v. Vidaure, 861 F.2d 1337, 1340 (5th Cir.1988). The record contains
judgments of conviction that show that Anderson was convicted on three
separate occasions of violating WIS. STAT. § 943.10(1)(a), which criminalizes the
entry of “any building or dwelling” where entry is made “without the consent of
the person in lawful possession and with intent to steal or commit a felony in
such place.” Because the Wisconsin statute under which Anderson was thrice
convicted conforms to Taylor’s definition of generic burglary, the district court
did not err in sentencing Anderson as an armed career offender pursuant to
§ 924(e) and § 4B1.4. See United States v. Martinez-Cortez, 988 F.2d 1408, 1411-
12 & n.20 (5th Cir.1993).
To the extent that Anderson contends that the district court violated
United States v. Booker, 543 U.S. 220 (2005) and the Constitution by making the
determination that his prior offenses were violent felonies, his argument is
without merit. See United States v. White, 465 F.3d 250, 251 (5th Cir. 2006);
United States v. Brown, 437 F.3d 450, 451 n.1 (5th Cir. 2006). Anderson’s
contention that the district court was required to find the facts underlying the
sentencing enhancement beyond a reasonable doubt is also unavailing. See
United States v. Johnson, 445 F.3d 793, 798 (5th Cir.), cert. denied, 126 S. Ct.
2No. 06-31292
2884 (2006). Anderson has not shown that the district court erred in enhancing
his sentence as an armed career offender.
Anderson also contends that the district court erred in determining that
an enhancement was warranted under U.S.S.G. § 2K2.1(B)(5). We need not
address the merits of this argument because the district court’s determination
regarding the § 2K2.1(B)(5) enhancement did not affect Anderson’s total offense
level, which was determined through application of the armed career offender
guideline. See United States v. El-Zoubi, 993 F.2d 442, 451 (5th Cir. 1993).
The judgment of the district court is AFFIRMED.
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