FILED
United States Court of Appeals
Tenth Circuit
February 19, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 07-6138
v. (D.C. No. CR-06-105-001-T)
(W.D. Okla.)
THOMAS ANTHONY STUPKA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and HARTZ, Circuit Judges.
Defendant-Appellant Thomas Anthony Stupka was convicted of possessing
a firearm after a felony conviction, 18 U.S.C. § 922(g)(1), and was sentenced to
180 months’ imprisonment and five years’ supervised release. He appeals the
district court’s sentence, specifically the application of an enhancement under the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Background
Mr. Stupka pawned a Smith and Wesson handgun on June 9, 2004. III R. at
4. He previously pled guilty to three counts of burglary II in 1991 after he broke
into apartments 358, 380, and 458 at the Railhead Apartments complex in
Oklahoma City by using a master key. Id. at 11; Aplee. Add. at 1-2. He stole
various household furnishings. Id. The Presentence Investigation Report
accordingly recommended that he be sentenced under 18 U.S.C. § 924(e)(1) as an
armed career criminal within the meaning of U.S.S.G. § 4B1.4 subject to a
minimum sentence of fifteen years’ imprisonment. 1 III R. at 6. Mr. Stupka
objected to the application of this enhancement in a sentencing memorandum and
at the sentencing hearing held on May 30, 2007. I R. Doc. 31 at 1; II R. at 4. The
district court overruled his objection and sentenced Mr. Stupka to a term of
imprisonment at the bottom of his calculated sentencing guideline range of 180 to
210 months. II R. at 43.
Discussion
We review the district court’s application of a sentencing enhancement
under 18 U.S.C. § 924(e)(1) de novo. United States v. Moore, 401 F.3d 1220,
1226 (10th Cir. 2005). “[A] person has been convicted of burglary for purposes
1
Mr. Stupka’s offense level was 24 with a criminal history category of VI.
III R. at 6, 25. With the enhancement, his offense level was 33, resulting in an
advisory guideline range of 235 to 293 months. Id. at 25.
-2-
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.”
Taylor v. United States, 495 U.S. 575, 599 (1990). In determining whether the
enhancement applies, a district court “determining the character of an admitted
burglary is generally limited to examining 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.” Shepard v.
United States, 544 U.S. 13, 16 (2005).
Mr. Stupka challenges the enhancement on two grounds. First, he argues
that his three previous burglary convictions cannot be considered “violent
felon[ies]” “committed on occasions different from one another” as required
under § 924(e)(1) because he committed the burglaries on apartments under the
possession and control of the same people, on the same day, at the same address,
and by using a master key. Aplt. Br. at 11. Apparently, the apartments were
unoccupied and uninhabitable at the time because they were undergoing
renovation. II R. (5/30/2007 Sent. Tr.) at 15-16, 20. Second, he argues that the
circumstances surrounding his prior burglary convictions were impermissibly
found by the district judge and should have been submitted to a jury under the
Sixth Amendment. Id. at 13.
Neither of Mr. Stupka’s arguments persuade us. With respect to his first
-3-
argument, we simply note that the definition of “violent felony” for the purposes
of § 924(e)(1) includes “any crime punishable by imprisonment for a term
exceeding one year that . . . is burglary.” 18 U.S.C. § 924(e)(2)(B). Mr. Stupka
was convicted of three counts of burglary meeting the elements explained in
Taylor, 495 U.S. at 599 and therefore committed three violent felonies. Aplee.
Add. at 1-2.
He also committed these three burglaries “on occasions different from one
another.” 18 U.S.C. § 924(e)(1). Our precedent is clear on this point. In United
States v. Tisdale, we interpreted § 924(e)(1) within the context of a defendant
who committed three burglaries on the same date after breaking into a shopping
mall. 921 F.2d 1095, 1098 (10th Cir. 1990). The defendant burglarized two
private businesses and a post office within the mall on a single night. Id. He was
tried and convicted of three counts of burglary. Id. We held that “the defendant
could not simultaneously burglarize three separate businesses” for the purposes of
§ 924(e)(1) because he chose to burglarize two additional businesses after
burglarizing the first and had to physically break and enter three separate
structures to commit the burglaries. See id. at 1099. The defendant’s sentence
was therefore properly enhanced under § 924(e)(1). See id.; see also United
States v. Michel, 446 F.3d 1122, 1134 (10th Cir. 2006) (“In affirming the district
court, we are governed by our ruling in Tisdale.”).
The district court correctly determined, based upon the information and
-4-
judgment for Mr. Stupka’s burglary convictions, that his case is not different than
Tisdale in any meaningful way. II R. (5/30/2007 Sent. Tr.) at 23-25. After he
chose to burglarize one apartment, he had to choose to burglarize another,
regardless of whether he might have used the master key to open all three doors
before removing the items from each apartment. Mr. Stupka could not have
simultaneously burglarized all three apartments. In addition, although the
apartments were in the same complex (much like the businesses and post office in
Tisdale), he had to “break and enter” each apartment separately. There simply is
no question that Mr. Stupka committed three violent felonies “on occasions
different from one another.” 18 U.S.C. § 924(e)(1).
Moreover, Mr. Stupka is not entitled to a jury trial to determine the
circumstances surrounding his prior burglary convictions, including whether the
burglaries were “violent felon[ies]” or were “committed on occasions different
from one another.” Id. The Supreme Court held in Almendarez-Torres v. United
States that recidivism does not need to be proven to a jury beyond a reasonable
doubt. See 523 U.S. 224, 239 (1998). The Court reaffirmed this holding in
Apprendi v. New Jersey when it concluded that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. 466, 490 (2000) (emphasis added). Almendarez-Torres remains
good law despite Justice Thomas’s statement that a majority of the Court is
-5-
prepared to overturn it. See Shepard, 544 U.S. at 27-28 (Thomas, J., concurring).
If there is to be any change in the law in this area, it cannot come from us. See
id.; see also Moore, 401 F.3d at 1224 (“Although the Court may overrule
Almendarez-Torres at some point in the future, it has not done so, we will not
presume to do so for the Court, and we are bound by existing precedent to hold
that the Almendarez-Torres exception to the rule announced in Apprendi and
extended to the Guidelines in Booker remains good law.”).
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-6-