United States v. Adams

                    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.