United States v. Bush

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 12, 2011
No. 10-15590 JOHN LEY
CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 9:10-cr-80052-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTWON DENARD BUSH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 12, 2011)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Antwon Bush appeals the sentence imposed following his guilty plea to a
single-count of being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922 (g)(1) and 924(e). The district court sentenced him
to 180 months in prison in accordance with the Armed Career Criminal Act
(“ACCA”) because Bush had been convicted of three violent felonies. On appeal,
Bush argues that the district court erred in enhancing his sentence because (i) his
prior conviction for burglary of an unoccupied structure was not a violent felony
and (ii) his prior convictions were not charged in the indictment or found by a jury.
After a thorough review of the record, we affirm.
Bush entered an unconditional plea to possession of a firearm and
ammunition and at the change-of-plea hearing admitted that he had previously
been convicted of burglary of a structure, aggravated assault on a police officer
with a deadly weapon and fleeing police, and burglary of an occupied dwelling.
Based on these facts, the probation officer determined that Bush qualified as
an armed career criminal under § 924(e) and U.S.S.G. § 4B1.4. The presentence
investigation report (PSI) quoted the indictment and judgment in connection with
the prior conviction for burglary of a structure as follows: Bush “did knowingly
enter or remain in a structure, the property of USA GROCERS, INC., with intent to
commit an offense therein.” According to the PSI, Bush smashed the glass of the
convenience store, entered the building, and took $183 in cash.
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Bush’s status as an armed career criminal subjected him to a mandatory
minimum sentence of 180 months’ imprisonment. 18 U.S.C. § 924(e). Although
he did not object to the facts set forth in the PSI, Bush disputed that his prior
conviction for burglary of a structure was a qualifying offense under the ACCA.
He also objected on the ground that his prior convictions had not been charged in
the indictment. The district court overruled the objections, finding that the prior
burglary conviction qualified as a violent felony under the ACCA, and that the
government was not required to charge prior convictions in the indictment under
Almendarez-Torres v. United States, 523 U.S. 224 (1998). The court then
sentenced Bush to the mandatory minimum sentence.
I.
We review de novo a district court’s determination that a defendant’s prior
convictions constitute violent felonies under the ACCA. United States v.
Matthews, 466 F.3d 1271, 1273 (11th Cir. 2006). The ACCA defines a violent
felony as:
any crime punishable by imprisonment for a term exceeding one
year . . . 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)(2)(B).
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In Taylor v. United States, the Supreme Court held that an offense
constituted “burglary” under the ACCA when “either its statutory definition
substantially corresponds to ‘generic’ burglary, or the charging paper and jury
instructions actually required the jury to find all the elements of generic burglary in
order to convict the defendant.” 495 U.S. 575, 602 (1990). The Supreme Court
held that a “generic” burglary for purposes of § 924(e) was one “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.
Here, we conclude that the district court properly found that Bush’s prior
conviction for burglary of an unoccupied structure was a violent felony under the
ACCA. At sentencing, Bush conceded that his prior conviction was for a generic
burglary.1 But even if Bush’s prior conviction is not generic burglary, it still
qualifies as a crime of violence because the state indictment confirms that Bush
was charged with entering a structure with the intent to commit a crime therein,
which fits the definition of a generic burglary under Taylor. 495 U.S. at 599; see
also United States v. Ranier, 616 F.3d 1212, 1215 (11th Cir. 2010), cert. denied,
1
Although this was likely an error, and the offense is actually a non-generic burglary, it
is an invited one and we need not address it. United States v. Love, 449 F.3d 1154, 1157 (11th
Cir. 2006).
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131 S.Ct. 968 (2011) (explaining that this court uses the modified categorical
approach to determine if a conviction under a non-generic burglary statute was
nonetheless for generic burglary). Therefore, the district court properly sentenced
Bush as an armed career criminal.
II.
We review constitutional sentencing issues de novo. United States v. Steed,
548 F.3d 961, 978 (11th Cir. 2008). In Almendarez-Torres, the Supreme Court
held that a prior conviction used to enhance a sentence under 8 U.S.C. § 1326(b)(2)
was not an element of the offense, and, thus, need not be alleged in the indictment
or found by a jury beyond a reasonable doubt. 523 U.S. 224, 226-27 (1998).
Because we are bound by the Supreme Court’s decision in Almendarez-Torres
until it is expressly overruled, Bush’s prior convictions did not have to be alleged
in the indictment or found by a jury. See United States v. Gibson, 434 F.3d 1234,
1246-47 (11th Cir. 2006). Therefore, the district court properly enhanced Bush’s
sentence pursuant to the ACCA.
Accordingly, we affirm.
AFFIRMED.
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