United States v. Kane

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4399

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

JAMES KANE,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:08-cr-00024-MR-DLH-1)

Submitted: May 24, 2011 Decided: June 3, 2011

Before KING, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Harold M. Vaught, Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

James Kane pleaded guilty to possession of a firearm

after having previously been convicted of a crime punishable by

a term exceeding one year of imprisonment, in violation of 18

U.S.C. § 922(g)(1) (2006). The district court sentenced Kane to

180 months of imprisonment and he now appeals. For the reasons

that follow, we affirm.

Kane argues on appeal that the district court erred in

determining that his prior New Jersey convictions for burglary

qualified as predicate offenses under the Armed Career Criminal

Act (“ACCA”). This court reviews a district court’s

determination of whether prior convictions qualify as predicate

convictions for purposes of the ACCA de novo. United States v.

Brandon, 247 F.3d 186, 188 (4th Cir. 2001). Under the ACCA, if

a defendant is convicted of violating § 922(g) and has sustained

three prior convictions for violent felonies or serious drug

offenses committed on occasions different from one another, the

defendant is subject to a statutory mandatory minimum of fifteen

years of imprisonment. 18 U.S.C. § 924(e)(1) (2006). A violent

felony is defined as a “crime, punishable by a term exceeding

one year of imprisonment, . . . that . . . is burglary.” 18

U.S.C. § 924(e)(2)(B)(i)-(ii) (2006).

In Taylor v. United States, 495 U.S. 575 (1990), the

Supreme Court concluded “that a person has been convicted of

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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 598. Moreover, where a state

statute contains both this generic burglary offense and another

offense that does not meet these elements, such as where a

burglary statute includes entry into “places, such as

automobiles and vending machines, other than buildings,” then a

district court must employ the “modified categorical approach”

to determine whether a defendant was convicted of a generic

burglary offense. Id. at 599-602. In making this

determination, a court may look to the statutory definition of

burglary, the charging documents, the jury instructions, the

terms of the plea agreement, the transcript of the plea colloquy

and the factual basis for the plea, or other comparable judicial

records. Id. at 602; Shepard v. United States, 544 U.S. 13, 26

(2005).

Here, the New Jersey statute under which Kane was

convicted provides that “[a] person is guilty of burglary if,

with purpose to commit an offense thereon, he (1) [e]nters a

research facility, structure, or a separately secured or

occupied portion thereof unless the structure was at the time

open to the public or the actor is licensed or privileged to

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enter.” N.J. Stat. Ann. § 2C:18-2(a)(1) (2005). “Structure,”

for purposes of this statute, is defined as “any building, room,

ship, vessel, car, vehicle, or airplane.” N.J. Stat. Ann.

§ 2C:18-1(a) (2005). Therefore, the statute includes both

generic burglary and other offenses.

Moreover, the Government did not provide the district

court with the charging document related to these convictions.

To rectify this omission, the Government has moved this court to

take judicial notice of the indictment charging Kane with the

burglaries. We conclude that we may take judicial notice of the

indictment. See Lolavar v. De Santibanes, 430 F.3d 221, 224 n.2

(4th Cir. 2005) (taking judicial notice of court records);

Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.

1989) (taking judicial notice of guilty pleas entered into after

the district court proceedings). Moreover, we conclude that the

indictment confirms that Kane pleaded guilty to unlawfully

entering a building with the intent to commit a crime therein

and, therefore, his burglary convictions qualified as predicate

offenses for the ACCA enhancement.

Accordingly, we grant the Government’s motion to file

a supplemental joint appendix and affirm the judgment of the

district court. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

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materials before the court and argument would not aid in the

decisional process.

AFFIRMED