United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-31024
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN P. SIMON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:02-CR-82-ALL
--------------------
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Stephen Simon appeals from a jury trial conviction for
possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g)(1). Simon argues that the district court
erred in imposing an Armed Career Criminal Act (ACCA) enhancement
pursuant to 18 U.S.C. § 924(e) to his sentence. He also argues
that the ACCA enhancement constitutes cruel and unusual
punishment in violation of the Eighth Amendment. Simon has
abandoned on appeal his argument that the application of the
*
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this opinion should not be published and is not precedent except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. 04-31024
-2-
sentencing guidelines violates the Supreme Court’s ruling in
Blakely v. Washington, 524 U.S. 296 (2004). See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Simon argues that the predicate offenses used by the
district court did not fit the definition of a burglary to
warrant the application of the ACCA enhancement. Because Simon
has preserved his argument in the district court, we review the
issue de novo. See United States v. Montgomery, 402 F.3d 482,
485 (5th Cir. 2005).
Louisiana defines simple burglary as “the unauthorized
entering of any dwelling, vehicle, watercraft, or other
structure, movable or immovable, or any cemetery, with the intent
to commit a felony or any theft therein.” LA. REV. STAT. ANN.
§ 14:62 (West Supp. 2005). Louisiana’s statute defines burglary
more broadly than the “generic burglary” of a building that is
contemplated by the ACCA. See Shepard v. United States, 125
S. Ct. 1254, 1257 (2005); Taylor v. United States, 495 U.S. 575,
599 (1990). The district court thus was required to determine
whether Simon’s simple burglary convictions constituted “generic
burglary” convictions. See Shepard, 125 S. Ct. at 1258.
Simon concedes that his prior conviction for burglary of
Crowley Junior High School qualifies as a “generic burglary” for
purposes of § 924(e). The record reflects that he has at least
two prior burglary convictions that also meet the generic
burglary definition under § 924(e). See Taylor, 495 U.S. at 599.
No. 04-31024
-3-
Specifically, his burglaries of the businesses H & M Meatpacking
Company and Tiffani’s Lounge necessitate the existence of a
building or structure. See id. Accordingly, the district court
did not err in applying the ACCA enhancement.
Simon renews his argument raised in the district court that
the application of the ACCA constitutes cruel and unusual
punishment in violation of the Eighth Amendment.
The ACCA has not been held unconstitutional under the Eighth
Amendment. See Harmelin v. Michigan, 501 U.S. 957, 965 (1991);
United States v. Yirkovsky, 259 F.3d 704, 706-07 (8th Cir. 2001);
United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000).
AFFIRMED.