FILED
United States Court of Appeals
Tenth Circuit
June 18, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-5117
(D.C. No. 4:13-CR-00050-JHP-1)
THEODORE BURCH, JR., N.D. Oklahoma
Defendant - Appellant.
ORDER AND JUDGMENT *
Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.
After examining the briefs and appellate record, this court has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). Accordingly, we
honor the parties’ requests and order the case submitted without oral argument.
In 2013, Defendant-Appellant Theodore Burch, Jr. pleaded guilty to being
a convicted felon in possession of a firearm, in violation of 18 U.S.C. §
*
This order and judgment is not binding precedent except under the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.
922(g)(1). The Presentence Investigation Report recommended that Burch be
sentenced under the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. §
924(e) (establishing a minimum mandatory sentence of fifteen years for a
defendant convicted of violating § 922(g) if he has three previous convictions for
violent felonies or serious drug offenses). Burch objected to that
recommendation, arguing “the modified categorical approach must be applied” to
determine whether his two prior Oklahoma state convictions for second degree
burglary are violent felony convictions under 18 U.S.C. § 924(e)(2)(B). [objection
to PSR @ 4] See United States v. Hill, 53 F.3d 1151, 1154-55 (10th Cir. 1995)
(applying the modified categorical approach to determine whether defendant’s
prior conviction under the Oklahoma burglary statute was a violent felony for
purposes of the ACCA). Specifically, he asserted the Government was required
to demonstrate “the entering was not by tool and that the goods were remo[]ved
from a building rather than one of the alternative objects set forth in the second
degree burglary statute.” 1
In response to Burch’s objection, the Government presented the charging
documents on which the two Oklahoma burglary convictions were based and the
two accompanying judgments. Because Burch pleaded guilty to both charges, he
1
The Oklahoma Uniform Jury Instructions define “entering,” to include the
insertion of a tool or instrument inside a dwelling “if the insertion of the tool or
instrument is capable of completing the purpose of the intended crime.” Okla.
Uniform Jury Instructions, Crim.2d, § 5-18.
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admitted entering two buildings with the intent to steal personal property. As to
Burch’s argument the Government was required to show the entering did not
occur by use of a tool or instrument, the Government noted this court has held
that “the Supreme Court’s definition of generic burglary for purposes of the
ACCA encompasses ‘entry by a tool or an instrument.’” United States v.
Cartwright, 678 F.3d 907, 914 (10th Cir. 2012).
The district court resolved Burch’s objection during the sentencing hearing.
The court overruled the objection, concluding it was clear from the charging
documents and the rulings of the Supreme Court and this court that Burch’s prior
convictions for second degree burglary met the definition of generic burglary.
Thus, the Government met its burden of showing Burch had three prior violent
felony convictions for purposes of the ACCA. 2 The district court sentenced
Burch to the minimum mandatory term of fifteen years’ imprisonment.
Burch acknowledges the Government’s evidence shows his prior burglary
convictions involved the burglary of buildings. Relying on the Supreme Court’s
recent opinion in Descamps v. United States, however, Burch now asserts
Oklahoma defines burglary not alternatively, but more broadly than generic
burglary because the element of entry applies to entry by a tool or by a person.
Cf. 133 S. Ct. 2279, 2283 (2013) (holding the modified categorical approach does
2
Burch did not challenge the characterization of two robbery convictions as
ACCA predicate offenses.
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not apply to statutes “that contain a single, ‘indivisible’ set of elements sweeping
more broadly than the corresponding generic offense”). Thus, according to
Burch, Oklahoma’s burglary offense is non-divisible and the modified categorical
approach is inapplicable. See id. at 2285-86.
Burch acknowledges this court has previously held that generic burglary
includes “actual intrusion into [a] home with [a] tool . . . capable of completing
the purpose of the crime,” foreclosing the argument he raises on appeal.
Cartwright, 678 F.3d at 913. He states his appeal was filed for the purpose of
preserving his claim “that Oklahoma’s second degree burglary is not subject to
the modified categorical analysis, and the district [sic] erred by relying on such
analysis in reaching the decision to invoke the ACCA.”
We acknowledge Burch’s argument, but express no opinion on whether it
was properly preserved in the district court.
The sentence imposed by the district court is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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