UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5077
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KAMAL MABREY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge. (CR-
03-511-RDB)
Submitted: September 9, 2005 Decided: October 20, 2005
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
James Wyda, Federal Public Defender, John H. Chun, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Allen F. Loucks, United States Attorney, John F. Purcell, Jr.,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kamal Mabrey pled guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2000), and the
district court sentenced him to 188 months of imprisonment, the
bottom of the applicable Sentencing Guidelines range. The district
court also announced an alternate sentence of 180 months, the
statutory mandatory minimum sentence, if the Sentencing Guidelines
were advisory only. On appeal, Mabrey asserts that the district
court erred in classifying him as an armed career criminal under 18
U.S.C.A. § 924(e) (West 2000 & Supp. 2005), that his sentence
violates the Sixth Amendment because the predicate offenses used to
enhance his sentence were neither submitted to a jury nor admitted
by him, and that the court erred by sentencing him under a
mandatory Sentencing Guidelines scheme. Mabrey does not challenge
his conviction on appeal. We affirm Mabrey’s conviction, vacate
Mabrey’s sentence, and remand for resentencing.1
Mabrey first asserts that the district court erred in
concluding that his Maryland conviction for second-degree burglary
qualified as a violent felony under § 924(e). “[I]n reviewing a
district court’s application of [§ 924(e)(1)], we review its legal
determinations de novo and its factual findings for clear error.”
1
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Mabrey’s sentencing.
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United States v. Wardrick, 350 F.3d 446, 451 (4th Cir. 2003), cert.
denied, 541 U.S. 966 (2004). We recently stated that determining
whether a prior felony qualified as a violent felony under § 924(e)
is a legal determination. United States v. Thompson, __ F.3d __,
__, 2005 WL 2128957, at *1, *4 (4th Cir. Sept. 6, 2005)
(No. 04-4678).
In Taylor v. United States, 495 U.S. 575 (1990), the
Supreme Court held that a defendant “has been convicted of burglary
for purposes of a § 924(e) enhancement if he is convicted of any
crime, regardless of its exact definition or label, 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. Generally, a sentencing court need only consider the fact
of the prior conviction and the statutory definition of the prior
offense to determine whether the prior offense was a burglary
within the meaning of § 924(e)(2)(B)(ii). Taylor, 495 U.S. at 602.
If, however, the statutory definition of the offense includes
conduct which would not constitute burglary under § 924(e), such as
unlawful entry into an automobile, a boat, or a vessel, the court
may examine the indictment or information and the jury instructions
to determine if the jury had to find all the elements of generic
burglary to convict the defendant. Id. at 599, 602; see Shepard v.
United States, 125 S. Ct. 1257, 1263 (2005) (holding that
sentencing court cannot look to police reports or complaint
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applications to determine whether prior offense is generic burglary
but may “examin[e] the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant
assented” or “some comparable judicial record of this
information”).
Here, second-degree burglary in Maryland has as elements
the unprivileged entry into a building for the purpose of
committing a crime. See Md. Ann. Code art. 27, § 30 (2000)
(prohibiting “break[ing] and enter[ing] the storehouse of another
with the intent to commit theft”) (repealed 2002) (current version
at Md. Code Ann., Crim. Law § 6-203 (2002)); Md. Ann. Code art. 27,
§ 28(e) (2000) (defining storehouse) (repealed 2002) (current
version at Md. Code Ann., Crim. Law § 6-201(h) (Supp. 2004)).
Because the state statutes cover conduct that does not constitute
generic burglary under Taylor, we next examine the state court
indictment.
Although Mabrey contends, as he did in the district
court, that the state court indictment to which he pled guilty was
ambiguous, we disagree. The indictment alleged that Mabrey
unlawfully broke and entered into the “storehouse of Woodbridge
Elementary School.” (JA-I at 26). By defining the storehouse as
Woodbridge Elementary School, the indictment charged Mabrey with
unlawfully breaking and entering a building. Because the
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second-degree burglary conviction satisfied the definition of
generic burglary set forth in Taylor, as determined by reference to
documents approved in Shepard, we find that the conviction
qualified as a violent felony under § 924(e).2 Thus, the district
court properly designated Mabrey as an armed career criminal.
Next, citing Blakely v. Washington, 542 U.S. 296 (2004),
Mabrey contends that sentencing him as an armed career criminal
violated his Sixth Amendment rights. Because Mabrey raised this
issue in the district court, we review his claim de novo. See
United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003)
(stating standard of review). Mabrey’s argument is foreclosed by
our decisions in Thompson, __ F.3d at __, 2005 WL 2128957, at *2
n.2, *4, *6 (holding that nature and occasion of offenses are facts
inherent in convictions and those facts need not be alleged in
indictment or submitted to jury), and United States v. Cheek, 415
F.3d 349, 350 (4th Cir. 2005) (holding that application of armed
career criminal enhancement falls within exception for prior
convictions where facts were undisputed, making it unnecessary to
engage in further fact finding about a prior conviction). Thus,
there is no Sixth Amendment error in this case.
Finally, Mabrey asserts that his sentence violates United
States v. Booker, 125 S. Ct. 738 (2005), because the district court
2
Mabrey conceded that he had two other qualifying predicate
convictions.
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sentenced him under a mandatory Sentencing Guidelines scheme. We
have held that treating the Guidelines as mandatory is error under
Booker. United States v. White, 405 F.3d 208, 216-17 (4th Cir.
2005). Our review of the record convinces us that there is a
nonspeculative basis on which we could conclude that the district
court would have sentenced Mabrey to a lower sentence had the court
proceeded under an advisory Sentencing Guideline scheme. See id.
at 223. Thus, we find that sentencing Mabrey under a mandatory
Sentencing Guidelines scheme affected his substantial rights. See
id. (noting that substantial rights inquiry under plain or harmless
error is the same and that only difference is who bears burden of
proof).
Accordingly, we vacate Mabrey’s sentence and remand for
resentencing.3 We also affirm Mabrey’s conviction. We dispense
with oral argument because the facts and legal contentions are
3
Although the Guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the] Guidelines
and take them into account when sentencing.” 125 S. Ct. at 767
(Breyer, J., opinion of the Court). On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. Hughes, 401 F.3d at 546. The court should consider
this sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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