[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 11, 2007
No. 07-11120 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00357-CR-J-32-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE LEANDER JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 11, 2007)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Andre Leander Jackson appeals the 180-month sentence he received after he
was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Because the government produced sufficient evidence to show that
Jackson’s prior burglary conviction qualified as a violent felony under the Armed
Career Criminal Act (“ACCA”), Jackson’s argument to the contrary fails. Jackson
has also raised two constitutional arguments for the first time on appeal, but those
arguments fail as well. Accordingly, we affirm.
I. BACKGROUND
In October 2005, Jackson was arrested and pleaded guilty to the charge of
felon in possession of a firearm. Prior to this incident, Jackson had been convicted
of eight felonies. Jackson concedes that two of the felonies constituted violent
felonies under the ACCA. A third felony, burglary, is at issue in this case. The
information for that burglary charged that on November 14, 1984, Jackson “did
unlawfully enter or remain in a structure, to-wit: a building . . . with the intent to
commit an offense therein, to-wit: a theft, contrary to the provisions of Section
810.02.” Jackson pleaded guilty on February 25, 1985. The Florida trial court’s
initial judgment indicated that Jackson pleaded guilty to “Burglary, F-3.” The final
judgment dated March 18, 1986, however, shows that Jackson pleaded guilty to
“burglary to a building” in violation of 810.01(3), third degree felony.
In this case, after the probation officer enhanced Jackson’s sentence pursuant
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to 18 U.S.C. § 924(e), Jackson objected to the determination that he is an armed
career criminal on the ground that his burglary conviction is not a qualifying
offense under the ACCA. At the sentencing hearing, Jackson argued that the
government did not show that his burglary conviction qualified as a violent felony
and thus did not meet its burden of proof. Jackson asserted that the indictment was
unclear as to whether the crime was burglary to a structure or burglary to the
curtilage of a structure.
The district court overruled Jackson’s objection because it found that the
March 18 judgment superceded the initial judgment and that Jackson pleaded
guilty to burglary of a building. Furthermore, it found that the charging
information and two judgments were sufficient to show that Jackson qualified
under the ACCA because those documents revealed Jackson’s guilty plea to
burglary of a building, the offense charged. The district court sentenced Jackson to
180 months in prison, the minimum mandatory under 18 U.S.C. § 924(e), followed
by five years’ supervised release. Jackson appealed.
II. STANDARD OF REVIEW
We review de novo a district court’s determination that a particular
conviction is a “violent felony” for purposes of the ACCA. United States v.
Matthews, 466 F.3d 1271, 1273 (11th Cir. 2006) (citing United States v. Wilkerson,
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286 F.3d 1324, 1325 (11th Cir.2002) (per curiam)).
III. DISCUSSION
A. The “Violent Felony” Question
Under 18 U.S.C. § 924(e), the ACCA, a person who violates 18 U.S.C.
§ 922(g) and has three previous convictions for a “violent felony,” a serious drug
offense, or both, is an armed career criminal and subject to imprisonment for a
period of not less than 15 years. Wilkerson, 286 F.3d at 1325. The ACCA defines
a violent felony as:
[A]ny crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delinquency
involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by
imprisonment for such term if committed by an adult,
that-
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B).
1. Generic Burglary
To constitute a violent felony under the ACCA, a “burglary” must be a
generic burglary, that is, it must have “the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to
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commit a crime.” Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143,
2158, 109 L.Ed.2d 607 (1990). According to the Supreme Court, a district court
may examine the charging document, plea agreement, plea colloquy, or “some
comparable judicial record of this information” to determine whether a prior
burglary conviction is generic or non-generic based on a guilty plea. Shepard v.
United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005).1
We have noted, however, that “a district court may not rely on a charging
document without first establishing that the crime charged was the same crime for
which the defendant was convicted.” United States v. Spell, 44 F.3d 936, 940
(11th Cir. 1995). We have also recognized that under the ACCA, a district court
“may look beyond the ‘fact of conviction and the statutory definition of the prior
offense’ to the particular facts underlying those convictions only in ‘a narrow
range of cases’ where it is impossible to determine from the face of the judgment
or the violated statute whether the prior conviction was for a violent felony.”
United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir. 2007) (per curiam)
(quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109
L.Ed. 2d. 607 (1990)).
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The Shephard Court rejected a sentencing court’s use of a police report as unreliable in
determining whether a crime was generic or non-generic burglary. Id. Accordingly, Jackson’s
argument that the sentencing court should have examined the police report fails.
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At all relevant times, Florida law defined third-degree felony burglary as an
unprivileged entry into an unoccupied structure or an unoccupied conveyance with
intent to commit an offense therein. Fla. Stat. § 810.02 (1984). A structure was
defined to include the curtilage of the structure. Fla. Stat. § 810.011(1) (1984).
Jackson pleaded guilty to “unlawfully enter[ing] or remain[ing] in a structure, to-
wit: a building.” The district court found that Jackson pleaded guilty to the same
crime with which he had been charged. The court appropriately looked to the
information and judgment underlying the burglary conviction, therefore, to
determine whether it constituted a generic burglary for purposes of the ACCA. See
Shepard, 544 U.S. at 26, 125 S.Ct. at 1263.
While on its face Jackson’s conviction is not clearly for generic burglary or
burglary of a structure’s curtilage, the charging document indicates that he did, in
fact, burglarize a building. Accordingly, because this offense “ha[d] the basic
elements of unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime,” we agree with the district court that it
qualifies as a generic burglary under the ACCA. See Taylor, 495 U.S. at 598, 110
S.Ct. at 2158.
2. Non-generic Burglary
Additionally, we have held that because Florida law narrowly defines “the
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curtilage of a structure to include only an enclosed area surrounding a structure,” a
burglary of a structure’s curtilage is a crime that presents a serious potential risk of
physical injury to another under the ACCA’s residual clause. Matthews, 466 F.3d
at 1275. The Supreme Court recently noted in James v. United States that the
residual provision of the ACCA can “cover conduct that is outside the strict
definition of, but nevertheless similar to, generic burglary.” 127 S.Ct. 1586, 1600,
167 L.Ed. 2d 532 (2007) (citation and internal quotation marks omitted). The
Court held that attempted burglary of the curtilage “‘presents a serious potential
risk that violence will ensue and someone will be injured’.” Id. (quoting Matthews,
466 F.3d at 1275). Thus, even if Jackson’s conviction had been for burglary of
curtilage, he would still qualify as an armed career criminal under the ACCA.
B. Constitutional Arguments Raised for the First Time on Appeal
Jackson raises two additional arguments for the first time on appeal. First,
he argues that the district court violated his Sixth Amendment right to a jury trial
by determining his status as a career criminal based on its own finding that he had
three qualifying convictions under the statute. See Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 2d 235 (2000) (“Other than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
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reasonable doubt.”). Jackson maintains that his situation falls outside the
exception for use of prior convictions because the district court had to determine
the precise nature of the crime underlying the prior conviction. We have
previously rejected that argument, however, as having been “foreclosed by
Supreme Court precedent.” Matthews, 466 F.3d at 1273 n.2 (citing United States
v. Greer, 440 F.3d 1267, 1275 (11th Cir. 2006)); see also James, 127 S.Ct. at 1600.
The second argument that Jackson raises for the first time on appeal is that
the ACCA is void for vagueness in violation of the Due Process Clause, both
facially and as-applied. We “may not correct an error the defendant failed to raise
in the district court unless there is: ‘(1) error, (2) that is plain, and (3) that affects
substantial rights.’ . . . ‘If all three conditions are met, [we] may then exercise [our]
discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings’.” United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quoting United States v. Cotton,
525 U.S. 625, 63, 122 S.Ct. 1781, 1785, 152 L.Ed. 2d 860 (2002)). Furthermore,
we have held that an error is not plain “if it is not clear under current law.” United
States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (per curiam).
“Vagueness may invalidate a criminal statute if it either (1) fails ‘to provide
the kind of notice that will enable ordinary people to understand what conduct it
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prohibits’ or (2) authorizes or encourages ‘arbitrary and discriminatory
enforcement’.” United States v. Eckhardt, 466 F.3d 938, 944 (11th Cir. 2006),
cert. denied, 127 S. Ct. 1305 (2007) (quoting City of Chicago v. Morales, 527 U.S.
41, 56, 119 S.Ct. 1849, 1859, 144 L.Ed. 2d 67 (1999)). When a challenge based on
vagueness does not involve the First Amendment, we review the statute as it was
applied. United States v. Awan, 966 F.2d 1415, 1424 (11th Cir. 1992) (citation
omitted).
Because Jackson’s challenge does not involve any First Amendment issues,
Jackson’s facial challenge necessarily fails. See Awan, 966 F.2d at 1424.
Regarding his as-applied challenge, Jackson does not cite to any precedent holding
that any specific ACCA provision, much less the entire statute, is
unconstitutionally vague. Moreover, neither the Supreme Court nor this Circuit
has held that any ACCA section, let alone the entire ACCA, is unconstitutionally
vague. Thus, under Chau, even if it was error, it was not plain error because it is
not clear under current law. Chau, 426 F.3d at 1322. Accordingly, Jackson’s as-
applied challenge to the ACCA as unconstitutionally vague fails.
CONCLUSION
For the reasons set forth above, we affirm.
AFFIRMED.
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