United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 11, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 04-20847
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM WAYNE MCGEE,
Defendant - Appellant.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
(No. 4:04-CR-67)
___________________________________________________
Before SMITH, GARZA, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
William Wayne McGee appeals his sentence enhancement under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(1), arguing that each of his prior convictions for second-degree
burglary in South Carolina is not a “burglary” as that term is defined in Taylor v. United States, 495
U.S. 575 (1990). Finding no merit in McGee’s argument, we affirm.
I. FACTS AND PROCEEDINGS
1
A federal grand jury indicted McGee, a previously convicted felon, on three counts of
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). The grand
jury also indicted McGee on two counts of possessing stolen firearms in violation of 18 U.S.C. §§
922(j) and 924(a)(2). The § 922(g)(1) counts alleged that McGee had “been previously convicted of
three violent felony or serious drug offenses.” Pursuant to a written plea agreement, McGee
subsequently pleaded guilty to one count of possession of a firearm in violation of §§ 922(g)(1),
924(a)(2), and 924(e)(1), in exchange for the government’s dismissal of the remaining four counts.
At sentencing, the district court treated each of McGee’s prior second-degree burglary convictions
in South Carolina as a “burglary” under 18 U.S.C. § 924(e)(2)(B)(ii), and thus a “violent felony”
under § 924(e)(1). Based on these prior convictions, the district court enhanced McGee’s sentence
under the ACCA, sentencing him to 295 months of imprisonment followed by five years of supervised
release.
II. STANDARD OF REVIEW
This court reviews de novo the district court’s application of the ACCA. United States v.
Munoz, 150 F.3d 401, 419 (5th Cir. 1998). See also United States v. Fuller, — F.3d —, 2006 WL
1660412, at * 4 (5th Cir. June 16, 2006) (citing United States v. Stone, 306 F.3d 241, 243 (5th Cir.
2002)).
III. DISCUSSION
2
The question before the court is whether each of McGee’s prior convictions for second-
degree burglary under South Carolina law is a proper predicate offense under the ACCA.1 We
conclude that they are.
Prior to his gun-related conviction here, McGee was convicted of seven counts of second-
degree burglary, in violation of S.C. CODE § 16-11-312(A). That state criminal statute provides that
“[a] person is guilty of burglary in the second degree if the person enters a dwelling without consent
and with intent to commit a crime therein.” For purposes of the statute, the term “dwelling” has two
meanings: “its definition found in § 16-11-10 and also . . . the living quarters of a building which is
used or normally used for sleeping, living, or lodging by a person.” S.C. CODE § 16-11-310(2). In
turn, § 16-11-10 provides:
With respect to the crimes of burglary and arson and to all criminal offenses which are
constituted or aggravated by being committed in a dwelling house, any house,
outhouse, apartment, building, erection, shed or box in which there sleeps a
proprietor, tenant, watchman, clerk, laborer or person who lodges there with a view
to the protection of property shall be deemed a dwelling house, and of such a dwelling
house or of any other dwelling house all houses, outhouses, buildings, sheds and
erections which are within two hundred yards of it and are appurtenant to it or to the
same establishment of which it is an appurtenance shall be deemed parcels.
In Taylor, the Supreme Court held that for a state-law burglary conviction to be a “burglary”
under the ACCA, the state statute of conviction must “correspond[ ] in substance to the generic
meaning of burglary.” 495 U.S. at 599. The Court set forth the generic meaning of “burglary” as “an
unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to
commit a crime.” Id. at 598.
1
The ACCA provides for a sentence of “not less than fifteen years” for a person who violates
18 U.S.C. § 922(g) and who “has three previous convictions . . . for a violent felony or a serious drug
offense.” 18 U.S.C. § 924(e)(1). “‘[V]iolent felony’ means any crime punishable by imprisonment for
a term exceeding one year . . . that . . . is burglary . . . .” 18 U.S.C. § 924(e)(2)(B)(ii).
3
In determining whether McGee’s South Carolina burglary convictions are proper ACCA
predicate offenses, we first note that, on its face, the South Carolina second-degree burglary statute
corresponds closely to the generic burglary definition. Compare S.C. CODE § 16-11-312(A), with
Taylor, 495 U.S. at 598. See also United States v. Dais, No. 04-4922, 2006 WL 1153803, at *2 (4th
Cir. May 2, 2006) (per curiam) (“[T]he South Carolina statutory definition [for second-degree
burglary] substantially corresponds to ‘generic’ burglary.”) (footnote omitted). Nevertheless, McGee
argues that second-degree burglary in South Carolina is broader than the generic definition of
burglary because South Carolina courts have construed the term “dwelling” to include an object that
is not “a building or other structure” as required in Taylor. More specifically, McGee argues that the
Taylor Court deemed the generic burglary definition not to include entry into objects such as booths,
tents, boats, or railroad cars, but that South Carolina’s definition of “dwelling,” as construed by South
Carolina courts, includes entry into such objects.
Assuming—without deciding—that the statute is nongeneric, the South Carolina indictment
to which McGee pleaded guilty and the plea agreement support the district court’s finding that the
South Carolina burglaries were proper ACCA predicate offenses.2 The Supreme Court has directed
courts to review “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” when a defendant pleads guilty
2
McGee disputes this court’s ability to review Shepard documents, arguing that courts can
only look beyond the fact of conviction when the state statute contains alternative means of
committing an offense. McGee argues that the South Carolina burglary statute contains only one
alternative: burglary of a “dwelling,” as that term is defined by South Carolina’s legislature. We reject
McGee’s formalistic contention, as the only prerequisite to reviewing the indictment and plea
agreement is that the statute be nongeneric. Shepard, 544 U.S. at 26.
4
to prior offenses that are “nongeneric.” Shepard v. United States, 544 U.S. 13, 26 (2005). Here, the
South Carolina indictment to which McGee pleaded guilty includes seven counts of burglaries of
“dwellings” of individuals located at precise street addresses in South Carolina. Similarly, the plea
agreement contains the seven counts of second-degree burglary and describes the burglarized
locations with dates, victims’ names, and the precise street addresses at which the offenses were
committed. Accordingly, the second-degree burglary convictions are proper predicates for purposes
of the ACCA.3 See United States v. Kilgore, 7 F.3d 854, 856 (9th Cir. 1993) (holding that an
indictment for burglary of “buildings with common street addresses” was sufficient for a finding that
state-law burglary convictions were proper ACCA predicate crimes). See also United States v.
McGarvey, No. 05-30536, 2006 WL 1763403, at *1 (9th Cir. June 22, 2006) (memorandum opinion)
(“Locations identified with common street addresses constitute ‘buildings’ within the definition of
generic burglary.”).
IV. CONCLUSION
The South Carolina indictment to which McGee pleaded guilty and his plea agreement
sufficientlydemonstrate that McGee’s South Carolina second-degree burglaryconvictions are ACCA
predicate offenses. Therefore, the district court’s imposed sentence is AFFIRMED.
3
Because it deemed the South Carolina burglary statute generic, the district court did not
review the Shepard documents to determine whether the South Carolina burglary convictions were
proper ACCA predicate offenses. Without addressing the correctness of the district court’s
evaluation, we review the record in its entirety and affirm the district court’s sentence. See United
States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995) (stating that the court may affirm on any
ground supported by the record).
5