United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 23, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41597
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK ALEXANDER LYNCH,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CR-54-ALL
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Frank Alexander Lynch (“Lynch”) pleaded guilty to illegally
possessing a firearm, in violation of 18 U.S.C. § 922(g)(1). He
was sentenced to 210 months imprisonment and five years supervised
release under 18 U.S.C. § 924(e), which requires a minimum sentence
of fifteen years if the defendant has three prior convictions for
a violent felony or serious drug offense or both. On appeal, Lynch
argues that the district court lacked sufficient evidence that his
prior convictions were for violent felonies within the meaning of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-41597
-2-
section 924(e). Lynch also seeks relief based on Blakely v.
Washington1 and United States v. Booker.2 We affirm.
Lynch first claims that the government lacked sufficient
evidence that his prior convictions for second degree burglary were
“violent felonies” within the meaning of 18 U.S.C. § 924(e).3 A
burglary conviction is a violent felony under section 924(e) if the
conviction entailed proof of unlawful or unprivileged entry into,
or remaining in, a building or structure with the intent to commit
a crime.4 If a defendant is convicted under a statute adopting
this “generic definition” of burglary, then the district court
“need find only that the state statute corresponds in substance to
the generic meaning of burglary.”5
The record before the district court did not contain either a
copy of the state statute under which Lynch was convicted or
authenticated copies of the prior judgments against him. The only
evidence of Lynch’s prior convictions was in the probation
officer’s presentence report (“PSR”), which gave the dates of his
arrests, the nature of the charges (“Second Degree Burglary”), the
courts in which he was tried, the docket numbers assigned in those
1
542 U.S. 296 (2004).
2
125 S. Ct. 738 (2005).
3
Lynch concedes that his prior convictions for arson and bank
robbery were properly considered as predicate offenses under
section 924(e). He only disputes the sufficiency of the evidence
as to the prior convictions for second degree burglary.
4
See Taylor v. United States, 495 U.S. 575, 599 (1990).
5
Id.
No. 04-41597
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trial courts, and the dates the sentences were imposed. Lynch did
not object in the district court that the PSR contained inadequate
evidence of his prior convictions.
An appellate court may not correct an error that a defendant
failed to raise in the district court unless there is plain error.6
Under this standard of review, there must be “‘(1) error, (2) that
is plain, and (3) that affect[s] substantial rights.’”7 Even if
these conditions are met, this court may exercise its discretion to
correct the error only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.8
Lynch’s claim fails to meet this plain error test.
First, the PSR provided sufficient indicia of reliability to
enable the district court to rely on it in making the sentencing
determination.9 The PSR noted the dates of Lynch’s arrests, the
nature of the charges (“Second Degree Burglary”), the courts in
which he was tried, the docket numbers assigned in those trial
courts, and the dates the sentences were imposed. Lynch has never
6
See United States v. Cotton, 535 U.S. 625, 631 (2002);
United States v. Martinez-Cortez, 988 F.2d 1408, 1415 (5th Cir.
1993), cert. denied, 510 U.S. 1013 (1993).
7
Cotton, 535 U.S. at 631 (quoting Johnson v. United States,
520 U.S. 461, 467 (1997) (internal quotation marks omitted)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993))).
8
Id.
9
See United States v. Hornsby, 88 F.3d 336, 339 (5th Cir.
1996) (“A presentence report generally bears sufficient indicia of
reliability to be considered as evidence by the trial judge in
making guideline determinations, especially when there is no
evidence in rebuttal.”).
No. 04-41597
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rebutted the information in the PSR regarding his prior
convictions, nor has he suggested that the information is
incorrect. He did not object to the PSR when it was introduced, he
did not object to the convictions for purposes of calculating his
criminal history category, and he does not deny the existence of
the convictions in arguing that there was insufficient evidence
that the convictions were violent felonies.
Second, there is no dispute as to the statute that applied to
Lynch’s convictions. Lynch was convicted under the Colorado
statute regarding second degree burglary, which was sufficiently
narrow to be classified as “generic burglary.”10 Thus, the
convictions constituted “violent felonies” within the meaning of 18
U.S.C. § 924(e).
For these reasons, the record before us makes clear that Lynch
was convicted of “generic” burglaries and thus violent felonies
under 18 U.S.C. § 924(e). Thus, even assuming the district court
erred in failing to obtain additional evidence of Lynch’s
convictions, the error did not seriously affect the fairness,
10
Between 1986 and 1993, the relevant years for purposes of
Lynch’s convictions, the Colorado statute defined second degree
burglary as "knowingly break[ing] an entrance into, or enter[ing],
or remain[ing] unlawfully in a building or occupied structure with
intent to commit therein a crime against a person or property."
COLO. REV. STAT. § 18-4-203(1) (1986), amended by COLO. REV. STAT.
§ 18-4-203(1) (1999).
No. 04-41597
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integrity, or public reputation of judicial proceedings.11 Lynch’s
claim fails to meet the plain error standard of review.
Lynch also claims that his sentence was wrongfully imposed
under Blakely v. Washington12 and United States v. Booker.13 Lynch
does not argue that the district court erroneously enhanced his
sentence by finding facts not admitted by him. Instead, he argues
that the district court erred in treating the Sentencing Guidelines
as mandatory and failing to consider other factors at sentencing.
Because Lynch did not raise this argument before the district
court, we review his claim for plain error.14 Although treating the
Guidelines as mandatory constituted error that was plain,15 Lynch
has failed to establish that the error affected his substantial
rights. Lynch must demonstrate that the sentencing judge would
have reached a significantly different result if the sentence had
been imposed under an advisory scheme rather than a mandatory one.16
Lynch presents no evidence that the district court would have
reached a different conclusion had the Sentencing Guidelines been
11
See Martinez-Cortez, 988 F.2d at 1415-16 (“By definition,
no ‘manifest injustice’ occurs when a sentence imposed in error by
the district court is nonetheless one that would have been lawful
had extant evidence of the prior conviction been introduced.”).
12
542 U.S. 296 (2004).
13
125 S. Ct. 738 (2005).
14
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).
15
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th
Cir. 2005).
16
See Mares, 402 F.3d at 521.
No. 04-41597
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advisory. The only relevant evidence in the record indicates that
Lynch was sentenced to the maximum term permitted under the
Guidelines. Under these circumstances, Lynch cannot show that the
error, if any, affected his substantial rights.17 Therefore,
Lynch’s claim fails to meet the plain error standard of review.
AFFIRMED.
17
See id. at 522; United States v. Martinez-Lugo, 411 F.3d
597, 601 (5th Cir. 2005).