United States Court of Appeals,
Eleventh Circuit.
No. 95-8418
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
William Leon ADAMS, Defendant-Appellant.
Aug. 14, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:94-CR-340), G. Ernest Tidwell, Chief
Judge.
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
William Leon Adams appeals his conviction and sentence for:
(1) armed bank robbery in violation of 18 U.S.C. §§ 2113(a) & (d);
(2) using and carrying a firearm during and in relation to the
commission of a crime of violence in violation of 18 U.S.C. §
924(c); and (3) being a previously convicted felon in possession
of a handgun in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Adams raises three issues on appeal, all of which we reject.
I.
Adams contends that, in light of the Supreme Court's decision
in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131
L.Ed.2d 626 (1995), Congress exceeded its Commerce Clause power in
regulating the mere possession of a gun under 18 U.S.C. §
922(g)(1). He argues that his conviction and sentence under that
section should be reversed. However, in United States v.
McAllister, 77 F.3d 387, 390 (11th Cir.1996), we upheld the
constitutionality of § 922(g)(1) in the face of a Lopez challenge
identical to Adams'. Accordingly, we reject his argument.
II.
Next, Adams contends that the district court improperly
applied the "armed career criminal" enhancement, 18 U.S.C. §
924(e), to his sentence. He argues that that enhancement is not
applicable to him, because of the Supreme Court's decision in
Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d
607 (1990). In Taylor, the Court held that the term "burglary," as
used in § 924(e), means burglary in the "generic" sense, which
requires an unlawful entry into "a building or other structure."
Thus, non-generic burglaries, such as car burglaries, do not count
as burglaries for purposes of § 924(e). Id. at 599, 110 S.Ct. at
2158. Even so, the Court held that a conviction under a
non-generic burglary statute may be counted for purposes of
enhancement under § 924(e) if the conviction was, in essence, for
a generic burglary. Id. at 599-600, 110 S.Ct. at 2158-59. In
particular, the Court stated that a non-generic burglary conviction
may be counted "if ... the charging paper and jury instructions
actually required the jury to find all the elements of generic
burglary in order to convict the defendant." Id. at 602, 110 S.Ct.
at 2160.
Adams contends that, under Taylor, his convictions for
burglary under Georgia's non-generic burglary statute do not
constitute burglary offenses for purposes of § 924(e), because they
were obtained by guilty pleas instead of by jury trials. The
thrust of Adams' argument is that a conviction under a non-generic
burglary statute does not suffice as a § 924(e) predicate for
enhancement, unless the jury instruction for that conviction
demonstrates that the "jury [was] actually required to find all of
the elements of a generic burglary in order to convict the
defendant." Id. Because Adams pleaded guilty, and there was no
jury instruction, he argues his prior convictions may not form the
basis for a § 924(e) enhancement.
In United States v. Spell, 44 F.3d 936, 939 (11th Cir.1995),
we addressed whether a prior conviction under Florida's non-generic
burglary statute constituted a "burglary" for purposes of a § 4B1.1
"career offender" enhancement. See United States Sentencing
Guidelines §§ 4B1.1 and 4B1.2 (Nov.1995). We held that, because
Taylor concerned a different enhancement provision (§ 4B1.4),1 its
categorical approach to defining "burglary" was not binding with
regard to §§ 4B1.1 and 4B1.2, and that under §§ 4B.1.1 and 4B1.2 a
court could "look behind the judgment of conviction" without
restraint from Taylor. Spell, 44 F.3d at 939. Even so, we
reasoned that, just as it was true under § 4B1.4 in Taylor, so was
it true under §§ 4B1.1 and 4B1.2 that the "practical difficulties
of holding mini-trials on a defendant's prior convictions counsel
against looking beyond the fact of conviction." Id. Thus, we
concluded that our "look behind the judgment of conviction" must be
"limited to examining easily produced and evaluated court
documents, including the judgment of conviction, charging papers,
1
Section 4B1.4 provides that "[a] defendant who is subject
to an enhanced sentence under the provisions of 18 U.S.C. §
924(e) is an armed career criminal." U.S.S.G. § 4B1.4
(Nov.1995).
plea agreement, presentence report adopted by the court, and the
findings of a sentencing judge." Id. Although our decision in
Spell is instructive for present purposes, it did not address the
question before us today: whether under Taylor 's categorical
approach, the government may use some means, other than a jury
instruction, to establish that the prior conviction resulted from
a generic burglary for purposes of enhancement under § 924(e).
Several circuits have addressed this question, and have held that,
contrary to Adams' contention, a conviction under a non-generic
burglary statute may still constitute a "burglary offense" for
purposes of § 924(e), even though there was no jury trial and no
jury instruction. See United States v. Harris, 964 F.2d 1234, 1236
(1st Cir.1992); United States v. Garza, 921 F.2d 59, 61 (5th
Cir.), cert. denied, 502 U.S. 825, 112 S.Ct. 91, 116 L.Ed.2d 63
(1991); United States v. Kaplansky, 42 F.3d 320, 322 (6th
Cir.1994) (en banc); United States v. Gallman, 907 F.2d 639, 645
n. 7 (7th Cir.1990), cert. denied, 499 U.S. 908, 111 S.Ct. 1110,
113 L.Ed.2d 219 (1991); United States v. Taylor, 932 F.2d 703, 708
(8th Cir.), cert. denied, 502 U.S. 882, 112 S.Ct. 232, 116 L.Ed.2d
188 (1991); United States v. Sweeten, 933 F.2d 765, 769-71 (9th
Cir.1991); United States v. Strahl, 958 F.2d 980, 983 (10th
Cir.1992). Those seven circuits have concluded that under Taylor
the government may use some means, other than a jury instruction,
to establish that the prior conviction resulted from a generic
burglary. We agree with those circuits.
In this case, the district court considered the presentence
investigation report ("PSR") in determining that Adams' prior
convictions under Georgia's non-generic burglary statute
constituted "burglaries" under § 924(e), i.e., generic burglaries.
The PSR documented Adams' prior convictions, pursuant to his guilty
pleas, for burglarizing both dwellings and businesses. The
information contained in the PSR about Adams' prior convictions
established that they were generic burglaries under Taylor and
therefore those burglaries were properly counted for purposes of
the § 924(e) enhancement.
Nothing in Taylor suggests that a defendant with prior
convictions from a state with a non-generic burglary statute may
escape the application of § 924(e) simply by pleading guilty and
thereby avoiding the creation and use of jury instructions. See,
e.g., Harris, 964 F.2d at 1236. Accordingly, the district court
did not err in applying the § 924(e) enhancement.
III.
Finally, Adams contends that the evidence was insufficient to
support his conviction for armed bank robbery in violation of 18
U.S.C. §§ 2113(a) & (d), and his conviction for using and carrying
a firearm during and in relation to the commission of a crime of
violence in violation of 18 U.S.C. § 924(c). Generally, we review
whether the evidence is sufficient to support a conviction de novo.
United States v. Vazquez, 53 F.3d 1216, 1224 (11th Cir.1995).
However, when the defendant fails to renew his Federal Rule of
Criminal Procedure 29 motion for a judgment of acquittal at the
close of the defense case, as did Adams, we "may reverse only to
prevent a manifest miscarriage of justice." United States v.
Hamblin, 911 F.2d 551, 556-57 (11th Cir.1990) (footnote omitted),
cert. denied, 500 U.S. 943, 111 S.Ct. 2241, 114 L.Ed.2d 482 (1991).
The manifest miscarriage of justice standard "require[s] a
finding that the evidence on a key element of the offense is so
tenuous that a conviction would be shocking." United States v.
Tapia, 761 F.2d 1488, 1492 (11th Cir.1985) (quoting United States
v. Landers, 484 F.2d 93, 94 (5th Cir.1973) (footnote omitted),
cert. denied, 415 U.S. 924, 94 S.Ct. 1428, 39 L.Ed.2d 480 (1974)).
That is certainly not the case here, where Adams' arguments amount
to quarreling with the jury's credibility determinations and ignore
the force of the evidence that the police found the stolen "bait"
bills on him.
IV.
We AFFIRM Adams' conviction and sentence.