NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0156n.06
Filed: March 19, 2008
06-6400
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
PAUL THOMAS McGOVNEY, ) EASTERN DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
Before: DAUGHTREY and McKEAGUE, Circuit Judges; GWIN,* District Judge.
PER CURIAM. The defendant, Paul Thomas McGovney, was convicted on the
basis of his guilty pleas to two counts of being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g) and one count of receiving and disposing of a stolen firearm. He
was sentenced to the mandatory minimum term of 15 years under the provisions of the
Armed Career Criminal Act (ACCA or the Act), 18 U.S.C. § 924(e), and now appeals the
district court’s sentencing order, contending: (1) that the government’s failure to provide
written notice of its intent to request a sentence under the Act violated the Fifth and Sixth
Amendments as well as the ACCA itself; (2) that the sentencing judge's determination that
*
The Hon. James S. Gwin, United States District Judge for the Northern District of Ohio,
sitting by designation.
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United States v. McGovney
McGovney’s prior sentences qualified as "violent felonies" within the meaning of the Armed
Career Criminal Act violated his Sixth Amendment right to a jury trial; and (3) that one of
his burglary convictions did not qualify as a predicate offense under the Act. We find no
basis on which to overturn the sentence and affirm.
The first two issues raised on appeal require little analysis or discussion. Formal
notice is not required under the Armed Career Criminal Act. See United States v. Mauldin,
109 F.3d 1159, 1162-1163 (6th Cir. 1997). Moreover, the defendant in this case had
actual notice almost two months prior to his sentencing hearing – at the very latest – in
compliance with the requirements of procedural due process. See Oyler v. Boles, 368
U.S. 448, 452 (1962) (“[A] defendant must receive reasonable notice and an opportunity
to be heard relative to [a] recidivist charge even if due process does not require that notice
be given prior to the trial on the substantive offense.”). Nor is he entitled to have a jury
determine that his prior convictions qualify as “violent felonies” under the Act. See James
v. United States, 127 S.Ct. 1586, 1600 & n. 8 (2007), in which the Supreme Court rejected
a Sixth Amendment challenge to an ACCA enhancement, calling the sentencing court’s
determination a matter of “statutory interpretation, not judicial factfinding.”
In his third and final issue on appeal, McGovney challenges the district court’s
determination that his 1983 conviction for third-degree burglary under Kentucky Revised
Statute § 511.040 qualified as a predicate felony under the ACCA. See KY. REV. STAT .
ANN . § 511.040 (1999). Because there was no objection to the inclusion of this conviction
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in the defendant’s presentence report and only a non-specific objection to application of
the Act at the sentencing hearing, we review the alleged defect in the sentence for plain
error. See United States v. Murphy, 241 F.3d 447, 450 (6th Cir. 2001) (claim of error is
subject to plain error review when the defendant “did not specifically object on the ground
which he now attempts to argue on appeal”). Under that standard, the defendant can
prevail only if there was error below that was plain and that affected the defendant’s
substantial rights and impugned the fairness, integrity, or public reputation of the judicial
proceedings. United States v. Webb, 403 F.3d 373, 380 (6th Cir. 2005).
Our first step, therefore, is to determine whether the district court misinterpreted the
Kentucky burglary statute, as McGovney contends. Under the ACCA, the recidivist
enhancement applies to a defendant who has three or more prior convictions for violent
felonies. 18 U.S.C. § 924(e). Burglary is considered a violent felony for purposes of the
Act if it involves “an unlawful or unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598
(1990). Recognizing that the state statutory definitions of burglary vary, the Taylor decision
provides that “where the generic definition has been adopted, with minor variations in
terminology, then the trial court need find only that the state statute corresponds in
substance to the generic meaning of burglary.” Id. at 599. Here, McGovney argues that
the 1983 conviction does not qualify because the offense as set out in the Kentucky statute
is broader than the generic definition of burglary in Taylor.
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United States v. McGovney
Without question, the language of the Kentucky burglary statute is at variance with
the generic definition of burglary in Taylor. Although the elements of the offense line up
with the generic definition, the Kentucky statute differs in that it includes within its definition
of “building” the following:
“Building,” in addition to its ordinary meaning, means any structure, vehicle,
watercraft or aircraft:
(a) Where any person lives; or
(b) Where people assemble for purposes of business,
government, education, religion, entertainment or public
transportation.
KY. REV. STAT . ANN . § 511.010(1) (1999). Because the statute covers break-ins of
vehicles, watercraft, and aircraft, the defendant contends that his conviction for entering
a “building” cannot meet the Taylor test without further evidence. In this regard, he relies
on the Supreme Court’s instruction in Shepard v. United States that “enquiry under the
ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute
necessarily admitted elements of the generic offense is limited to the terms of the charging
document, the terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the defendant, or to
some comparable judicial record of this information.” 544 U.S. 13, 26 (2005). Apparently,
the only document produced in this case was an “offense report” mentioned in the
presentencing report, which is not a qualifying document under Shepard.
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United States v. McGovney
The government argues in response that we should hold that the Kentucky statute
is, in fact, generic under Taylor for purposes of the ACCA. Yes, the Kentucky statute
broadens the definition of “building” to include “vehicles, watercraft and aircraft” but, the
government points out, they qualify as a “building” only if used as residences or places of
assembly. This argument has some appeal, viewed in terms of the Supreme Court’s
recent analysis in James:
The main risk of burglary arises not from the simple physical act of wrongfully
entering onto another’s property, but rather from the possibility of a face-to-
face confrontation between the burglar and a third party – whether an
occupant, a police officer, or a bystander – who comes to investigate.
127 S.Ct. at 1594. Nevertheless, like the Ninth Circuit in United States v. Grisel, 488 F.3d
844 (9th Cir. 2007), in which the en banc court reviewed a similar Oregon burglary statutory
to determine whether it could be considered “generic” for ACCA purposes, we are reluctant
to read the Act’s terminology too broadly. As the majority noted in Grisel, “Although a
vehicle or boat that has been adapted for accommodation may qualify as a building in
certain circumstances, it does not do so categorically.” Id. at 851, n. 5. Certainly, we
cannot say, in the words of Taylor, that the state statute’s definition of burglary has merely
“minor variations in terminology” in comparison to the Supreme Court’s definition of generic
burglary in that case. 495 U.S. at 599.
A determination that, under the Kentucky statute, burglary does not qualify
categorically as a crime of violence would not, however, end the inquiry. We would still
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need to consider whether the defendant’s conviction qualifies under the modified
categorical approach approved in Shepard. Although the record in this case does not
contain written documentation to support a conclusion that McGovney’s 1983 conviction
involved a building that would qualify under Taylor’s generic definition, the colloquy
between the district judge and the defendant can be considered under Shepard. The
transcript of the sentencing hearing shows that defense counsel conceded that his client’s
three prior burglary convictions “appear[ed] to meet the requirements under U.S. v. Taylor
and U.S. v. Shepard,” while at the same time indicating that he wished to “preserve the
objection” to ACCA sentencing. In addressing the district judge, the defendant took the
position that he did not “fit the category” of a career criminal, at the same time admitting
on the record that the 1983 burglary for which he was convicted was committed “on Heck’s
Dry Cleaning,” thereby corroborating the information in the presentence report. That
information established that “officers . . . dispatched to Heck’s Cleaners in reference to a
possible burglary . . . observed that a window had been broken out of the building” and
arrested the defendant, who was at the scene and was “identified by the witness as the
perpetrator.” In view of the defendant’s admission, we conclude that a remand for the
purpose of further substantiation is unnecessary.
Under the unique circumstances of this case, we hold that the district court’s
reliance on the presentence report to qualify the conviction in question as a violent felony
under the ACCA was not plain error. Certainly, that reliance cannot be said to have
affected the defendant’s substantial rights or to have impugned the integrity of the
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United States v. McGovney
proceedings that resulted in the sentence imposed. For this reason, we AFFIRM the
judgment of the district court.
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