United States v. Kerry Walker , 599 F. App'x 582 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0271n.06
Case No. 14-6215
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 14, 2015
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
KERRY WALKER, ) KENTUCKY
)
Defendant-Appellant. ) OPINION
)
)
BEFORE: GILMAN, ROGERS, and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. In 2012, federal agents caught Kerry Walker with ammunition
and two empty gun cases. He pleaded guilty to a brace of federal firearms charges under
18 U.S.C. § 922(g). Those pleas lengthened his long criminal record, which already featured two
convictions for second-degree burglary, two for third-degree burglary, and one for first-degree
stalking—all from Kentucky. The district court sentenced him to 180 months of imprisonment,
as the Armed Career Criminal Act required. See 18 U.S.C. § 924(e). Walker appeals, arguing
that a third-degree burglary conviction is not a violent felony under the Act. He also challenges
his sentence on constitutional grounds. We affirm.
Case No. 14-6215
United States v. Walker
Courts must sentence someone as an armed career criminal if he has previously been
convicted of three or more violent felonies. Id. The Act’s definition of “violent felony”
expressly includes “burglary.” Id. § 924(e)(2)(B)(ii). At least three of Walker’s convictions
qualify as “burglary” under the Act. He is therefore an armed career criminal.
Walker’s two convictions for second-degree burglary under Ky. Rev. Stat. § 511.030 take
us part of the way. That offense, we have repeatedly said, is equivalent to the crime of burglary
enumerated in the Act, and Walker does not contest the point. See United States v. Jenkins,
528 F. App’x 483, 485 (6th Cir. 2013). Those convictions satisfy two thirds of the Act’s three-
conviction trigger.
Walker’s 1984 conviction for third-degree burglary takes us the rest of the way. A
person violates that Kentucky law when, “with the intent to commit a crime, he knowingly enters
or remains unlawfully in a building.” Ky. Rev. Stat. § 511.040. The word “building,” in
addition to its “ordinary meaning,” encompasses “any structure, vehicle, watercraft or aircraft”
where people “live[]” or “assemble.” Id. § 511.010. On its face, then, the statute seems broader
than the Act’s generic definition of burglary, which extends only to “building[s] or other
structure[s].” Taylor v. United States, 495 U.S. 575, 598–99 (1990).
Yet in applying the Act to a statute with “divisible” elements, like this one, we may
“consult a limited class of documents” to determine which alternative element “formed the basis
of the defendant’s prior conviction.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
We then may “compare the elements of the crime of conviction (including the alternative
element used in the case) with the elements of the generic crime.” Id. Unfortunately for Walker,
Kentucky charged him with “unlawfully enter[ing] or remain[ing] in a dwelling . . . with the
intent to commit a crime.” R. 37-1 at 1 (indictment); see R. 37-3 at 21 (plea colloquy). Those
2
Case No. 14-6215
United States v. Walker
elements match the elements of the generic offense, see United States v. McGovney, 270 F.
App’x 386, 388–89 (6th Cir. 2008), and those elements establish that the district court properly
sentenced Walker as an armed career criminal.
None of Walker’s rejoinders alters this conclusion. Walker argues that Kentucky’s third-
degree burglary statute is not divisible. But we cannot see how: Its definition of “building” sets
out an “element[] of the offense in the alternative.” Descamps, 133 S. Ct. at 2281. Walker
argues that third-degree burglary can never be a violent felony because it contains no use-of-
force requirement. But the Act specifically enumerates “burglary” as a violent felony; no
additional use-of-force element is necessary. See 18 U.S.C. § 924(e)(2)(B)(ii). Walker argues
that his sentence is unconstitutional because a judge and not a jury found the facts of his prior
convictions. But the Supreme Court rejected that argument in Almendarez-Torres v. United
States, 523 U.S. 224, 247 (1998), leaving Walker at the mercy of the Court, not us, in deciding
whether to reconsider that decision. See United States v. Cooper, 739 F.3d 873, 884 (6th Cir.
2014). Walker argues that the government had a statutory and constitutional duty to notify him
about the Act’s applicability. But that is not the case, as we have said many times before. See
United States v. Ball, 771 F.3d 964, 973 (6th Cir. 2014); United States v. Mauldin, 109 F.3d
1159, 1163 (6th Cir. 1997). And Walker argues that the Act’s residual clause is void for
vagueness. But we need not reach the issue because three of his prior convictions are violent
felonies enumerated by the Act, making the residual clause irrelevant.
For these reasons, we affirm.
3