                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT

                     _____________________________

                              No. 92-8080
                     _____________________________

     UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

                       versus

     ANTONIO MARTINEZ-CORTEZ,

                                     Defendant-Appellant.

        _________________________________________________

            Appeal from the United States District Court
                  for the Western District of Texas

        _________________________________________________

                              (April 13, 1993)

Before GOLDBERG, JOLLY, and WIENER, Circuit Judge:

WIENER, Circuit Judge:

     In this appeal from the enhancement of his sentence under 18

U.S.C. § 924(e) for, inter alia, a prior burglary conviction,

Defendant-Appellant     Antonio      Martinez-Cortez     asserts    that   the

evidentiary basis of the enhancement was insufficient under the

United States Supreme Court's decision in United States v. Taylor.

Although, under the requirements of the Taylor decision, we find

error in the district court's acceptance of the government's

evidence    as   adequate     for   enhancement,    we   do   not   find   the

enhancement to be reversible when we review the sentence under the

standard here applicable.           We therefore affirm the sentence as

enhanced.
                                         I

                         FACTS AND PROCEDURAL HISTORY

       In     December   1991,     Martinez-Cortez    was    found     guilty    of

possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1).         In February 1992, he was sentenced by the

district court to serve the maximum statutory term of incarceration

(ten       years).   The   district     court    enhanced    Martinez-Cortez's

sentence an additional five years pursuant to 18 U.S.C. § 924(e).1

       Martinez-Cortez's         Presentence    Investigation       Report   (PSR)

listed three prior convictions on which the district court relied

in support of enhancement:          (1) a 1959 conviction for assault with

intent to rob; (2) a 1971 conviction for burglary of a habitation;

and (3) a 1986 conviction for unlawful delivery of heroin.                      The

government       asserts   that     there    were   four    prior    convictions

supporting enhancement: "assault with intent to rob, burglary, and

two felony convictions for possession of a controlled substance, to

wit: heroin."        As an preliminary matter, Martinez-Cortez claims

that one of the drug convictions that the government points to on

appeal was for mere possession of heroin, and that this conviction

does not support enhancement because it is not a "serious drug

offense."        Although Texas law classifies simple possession of

heroin as a second-degree felony,2 Martinez-Cortez avers correctly


       1
       See 18 U.S.C.S. § 924(e)(Supp. 1992). Martinez-Cortez
received a sentence of 180 months, which is to be followed by
three years of supervised release.
       2
       See TEX. HEALTH & SAFETY CODE ANN. §§ 481.032, 481.102,
481.115 (Vernon 1992).

                                         2
that without "intent to distribute," a conviction for possession of

a controlled substance does not qualify as a "serious drug offense"

for purposes of enhancement.3                 Our review of the record confirms

that one of Martinez-Cortez's drug convictions was for "possession

of a controlled substance" (no mention of intent to distribute).

Consequently,            this     conviction       cannot    be     used      to    support

enhancement, and the government must succeed on the strength of the

other three convictions or lose enhancement.

       Sentence enhancement under § 924(e) requires three prior

convictions         of    either     "violent       felonies"       or    "serious     drug

offenses."          That    Martinez-Cortez's         1959    and    1986     convictions

support enhancement under § 924(e) is not contested.                               Moreover,

Martinez-Cortez           does    not   challenge     the    truth       of   the    limited

evidence in the PSR that he was convicted for burglary in 1971; he

complains only that the district court erred in accepting that

evidence as legally sufficient for purposes of enhancement.                             And,

as shall be explained below, it is both undisputed and central to

the ultimate result of this appeal that at no time during the

sentencing phase of his trial did Martinez-Cortez object either to

the admission of the pre-sentence report or to the inclusion in

that       report    of    the     statement       regarding      the     1971      burglary

conviction.         He thus raises for the first time here the issue of

sufficiency         of    proof    of   the    burglary      conviction       to     support

enhancement of his sentence under § 924(e).



       3
           See 18 U.S.C.S. § 924 (e)(2)(A)(ii).

                                               3
                                  II

                               ANALYSIS

A.   Standard of Review

      As Martinez-Cortez asserts, the general rule is that whether

prior convictions have been proved sufficiently for purposes of

sentence enhancement is a question of law; thus, review is de

novo.4    In the instant case, however, it appears as above noted

that Martinez-Cortez failed to object in any way during sentencing

to the introduction of information regarding his prior burglary

conviction.      As he failed to object, "[h]e may not raise an

objection now . . . absent plain error."5

      This court has stated that "plain error" is error that "when

examined in the context of the entire case, is so obvious and

substantial that failure to notice and correct it would affect the

fairness, integrity or public reputation of judicial proceedings."6

"It is a mistake so fundamental that it constitutes a 'miscarriage

of justice.'"7    When a new factual or legal error is raised for the

first time on appeal, "plain error occurs whe[n] our failure to


      4
       United States v. Vidaure, 861 F.2d 1337, 1338 (5th Cir.
1988), cert. denied, 489 U.S. 1088 (1989); see United States v.
Silva, 957 F.2d 157, 161 (5th Cir.), cert. denied, 113 S. Ct. 250
(1992).
      5
       United States v. Lopez, 923 F.2d 47, 49 (5th Cir.)(citing
United States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990)),
cert. denied, ___ U.S. ___, 111 S. Ct. 2032 (1991).
      6
       Id. at 50 (citing United States v. Guzman, 781 F.2d 428,
431-32 (5th Cir.), cert. denied, 475 U.S. 1143 (1986)).
      7
       Id. (citing Brunson, 915 F.2d at 944, and Matter of
Johnson, 724 F.2d 1138, 1140 (5th Cir. 1984)).

                                   4
consider the question results in 'manifest injustice.'"8



B.   Martinez-Cortez's Assertion of Error

      Martinez-Cortez's sole ground for appeal is that the district

court erred in accepting the 1971 burglary conviction as supporting

the § 924(e) enhancement.        Significantly, he does not assert that

the information concerning that conviction, as set forth in the

PSR, was inaccurate or that the burglary for which he was convicted

was not the kind that can be used to support enhancement.              He rests

his appeal entirely on the proposition that the government failed

to present the kind of evidence of his burglary conviction that the

Supreme Court has held to be required.              As such, he asserts, the

district court erred in enhancing the sentence in reliance on the

inadequate evidence that was presented.9

      None disputes that burglary is one of the "violent felonies"

listed     in   §   924,   the   prior       conviction   of   which   supports

enhancement.10      In Taylor v. United States,11 however, the Supreme

Court limited the use of state law burglary convictions in sentence

enhancement when it recognized that among the several states

burglary is defined in many different ways.               The Court then held

      8
       Id. (citing Self v. Blackburn, 751 F.2d 789, 793 (5th Cir.
1985)).
      9
       In oral argument, counsel for Martinez-Cortez at least
impliedly conceded that the 1971 burglary conviction was of the
type that supports enhancement. He did not dispute the facts
concerning the 1971 burglary conviction stated in the PSR.
      10
           See 18 U.S.C.S. § 924(e)(2)(B)(ii) (Supp. 1992).
      11
           495 U.S. 575 (1990).

                                         5
that only convictions for "generic" burglary could support § 924

enhancement.     The Court then defined generic burglary:

           We conclude that a person has been convicted of
      burglary for the purposes of a § 924(e) enhancement if he
      is convicted of any crime, regardless of its exact
      definition or label, having the basic elements of
      unlawful or unprivileged entry into, or remaining in, a
      building or structure, with intent to commit a crime.12

      To complete the picture the Court next identified the kind of

proof required when the government seeks to use a state burglary

conviction for purposes of a § 924(e) enhancement.               In part IV of

the Taylor opinion,13 the Court held that the government could prove

a prior conviction for committing a generic burglary by introducing

(1) the fact of the prior conviction (presumably by introducing a

certified or validated copy of the judgment) and (2) a true copy of

the   state    statute   under    which     the   conviction     was   attained.

Additionally, if the defendant had been convicted of burglary in a

state where elements of the statutory crime corresponded to the

Taylor     court's   definition    of       generic   burglary    (with    minor

variations in terminology), "then the trial court need find only

that the state statute corresponds in substance to the generic

meaning of burglary."14          The Court thus found that "the only

plausible interpretation of § 924(e)(2)(B)(ii) is that it generally

requires the trial court to look only to the fact of conviction and




      12
           Id. at 599.
      13
           Id. at 599-602.
      14
           Id. at 599.

                                        6
the statutory definition of the prior offense."15

       Nevertheless, the Taylor Court's pronouncement goes on to

create      one    (but   only     one)   tightly       drawn   exception   to   the

"categorical approach" of looking only to the statutory definition

of the prior conviction.             In defining this sole exception, the

Court stated:

       The categorical approach, however, may permit the
       sentencing court to go beyond the mere fact of conviction
       in a narrow range of cases where a jury was actually
       required to find all the elements of generic burglary.
       For example, in a State whose burglary statutes include
       entry of an automobile as well as a building, if the
       indictment or information and jury instructions show that
       the defendant was charged with a burglary of a building,
       and that the jury necessarily had to find an entry of a
       building to convict, then the Government should be
       allowed to use the conviction for enhancement.16

       Martinez-Cortez argues that to enhance his sentence under

Taylor's interpretation of § 924(e), the trial court must have

before it either 1) proper copies of the statutes under which the

defendant was previously convicted or 2) the indictment and the

jury    instructions       under     which       the   defendant   was   previously

convicted.        It follows, Martinez-Cortez asserts, that enhancement

by the sentencing court in the absence of proof sufficient under

one of the two alternative methods set out in Taylor is an absolute

nullity))i.e., that it is void ab initio and must be vacated.

Although we agree with Martinez-Cortez's first assertion (that the

government must produce proof meeting one of the two Taylor options

in order to obtain an enhancement), we disagree with his second

       15
            Id. at 602.
       16
            Id. (emphasis added)(footnote omitted).

                                             7
assertion (that failure to do so produces a void rather than

voidable sentence).

     This court has interpreted the Taylor decision, and its

prerequisites to sentence enhancement, in four cases.           In three of

the four, we affirmed the enhancement assessed by the district

court.     In United States v. Rodolfo Martinez,17 we affirmed an

enhancement of a sentence in which copies of the judgments of the

prior convictions had been introduced to the trial court (the

relevant penal code sections were cited to the district court by

the government).       In United States v. Silva,18 we affirmed an

enhancement that had been proved to the district court by the

government's presentation of "certified copies of Silva's Texas

state     conviction   records   evidencing   that   he   had   two   prior

convictions for 'burglary of a habitation' and one prior conviction

for 'burglary of a building' pursuant to Texas Penal Code § 30.02."

And in United States v. Garza,19 we affirmed a sentence enhancement

that the government had proved by demonstrating that the burglary

indictment under which the conviction was obtained was a "generic"

burglary under Taylor.20

     17
          962 F.2d 1161, 1167-68 (5th Cir. 1992).
     18
          957 F.2d at 161.
     19
          921 F.2d 59, 60 (5th Cir.), cert. denied, 112 S. Ct. 91
(1991).
     20
       In Garza this court rejected the prisoner's argument
that, in light of Thomas, proof of the burglary conviction had to
be offered with both the indictment and the jury instructions.
The court reasoned that as there were situations in which there
are no jury instructions but an enhancement would be proper
(e.g., there are no jury instructions in a plea arrangement under

                                     8
     In the forth appeal in which we construed Taylor, we did

reverse a sentence enhancement based on a prior conviction for

"burglary."    In United States v. Raul Martinez,21 we rejected the

government's    argument   that   a   prior   conviction   for   attempted

burglary satisfied both methods of proof allowed by Taylor.          Under

the first Taylor option, the elements of the attempted burglary

statute facially were not the same as the "basic elements" of

generic burglary.    As to the second or alternative method of proof

under Taylor, we stated:

     [T]he Government has not shown, by means of the charging
     papers or jury instructions from Martinez' prior
     convictions for attempted burglary, that entry into or
     remaining within the building was an element of Martinez'
     prior crimes. Indeed, the Government did not offer the
     charging papers or jury instructions from Martinez' prior
     convictions. In sum, the Government has not demonstrated
     that Martinez' prior convictions . . . satisfy the
     [Taylor] requirements . . . .22

For these and other reasons, we vacated Raul Martinez's sentence

and remanded his case for re-sentencing.


FED. R. CRIM. P. 11), the court would not require the jury
instructions when "the charging papers, the indictments, clearly
reflect that [the] prior burglary convictions meet Taylor's
generic burglary definition." Id. at 61. Even though the
holding in Garza appears to disregard Taylor's conjunctive "and"
(charging papers and jury instructions) in favor of the
disjunctive "or," we note the subsequent concurrence in the
disjunctive reading of the Taylor alternative by our colleagues
on the Ninth Circuit. See United States v. Sweeten, 933 F.2d
765, 769-70 (9th Cir. 1991); United States v. Harkey, 923 F.2d
138, 138 n.1 (9th Cir. 1991). But see Taylor, 495 U.S. at 602
("[A] sentencing court [may] go beyond the mere fact of
conviction in a narrow range of cases where a jury was actually
required to find all the elements of generic burglary. (emphasis
added)); infra notes 23-28.
     21
          954 F.2d 1050 (5th Cir. 1992).
     22
          Id. at 1053 (emphasis added).

                                      9
     In the instant case, as in Raul Martinez, the government

prosecutor   offered   neither   the    charging   papers   nor   the   jury

instructions    from   Martinez-Cortez's    1971   burglary   conviction.

Neither did the government offer a copy of the state burglary

statute under which the defendant was previously convicted.               In

fact, the only evidence introduced by the government concerning the

prior burglary conviction was a single, cryptic entry in the PSR,

which stated:

     According to available reports, on February 7, 1971, a
     witness observed the Defendant enter an establishment
     through a window he had broken.     The witness made a
     comment to Cortez and he approached her with an open
     knife and made threatening gestures to her. The witness
     left and called the Police Department. Police Officers
     apprehended Cortez and two other individuals, as they
     carried a typewriter and a camera. Officers also found
     an opened knife in Cortez' pants pocket.

Martinez-Cortez argues that, standing alone, that statement from

the PSR could not provide an adequate basis under Taylor))either

legal or factual))for the sentence enhancement.       He insists, and we

agree, that the kind of evidence specified by the Taylor Court for

at least one of the two alternative but exclusive methods of

proving generic burglary must be offered by the government.             Here,

we find beyond serious question that within its four corners the

government's meager evidence of the 1971 burglary conviction did

not even come close to meeting the clear requirements of either of

the two exclusive alternative methods of proof of generic burglary

set forth in Taylor.

     Simply put, the Taylor decision dictates in scrupulous detail

the exact kind of proof the government is required to introduce


                                   10
when    one    or   more   of   the    prior    convictions   being     used    for

enhancement is burglary; and here the government failed woefully to

meet such requirements, just as it did in Raul Martinez.                A single,

second      hand,   non-specific      hearsay   statement,    gleaned    from   an

unidentified source and set forth in the PSR, has no resemblance

whatsoever to the kind of evidentiary support required by the Court

under Taylor for purposes of sentence enhancement.                If Martinez-

Cortez had objected and the government had failed to respond by

adducing Taylor evidence, enhancement based on the 1971 "burglary"

conviction would surely have been reversible error, leaving us no

choice but to vacate Cortez's sentence and remand.

       Disagreeing with our interpretation of Taylor, our specially

concurring co-panelist "would read Taylor as requiring presentation

of either the statute under which the defendant was previously

convicted, or the indictment, or the bill of information, or any

other form of equally reliable proof showing that the defendant

indeed had committed a 'generic' burglary."23                  This is not a

"reading" of Taylor; it is a re-writing of Taylor.

       By his expansive "reading," our colleague would impermissably

broaden Taylor to require the sentencing courts to engage in

elaborate factfinding procedures, accepting "any . . . form of

equally reliable proof [of the prior conviction]."                    Try as we

might, we cannot square that stretch with Part IV of the Taylor

opinion, in which the Court expressly rejects such free-wheeling

factual determinations in favor of a "categorical approach" with

       23
            Special Concurrence at 1-2 (some emphasis added).

                                         11
but one tightly drawn exception.24            In Taylor, the unanimous Court

stated: "The Courts of Appeals uniformly have held that § 924(e)

mandates    a    formal   categorical     approach,   looking     only   to   the

statutory       definitions   of   the   prior   offenses   and   not    to   the

particular facts underlying those convictions."25

     The special concurrence also criticizes our decision for its

refusal to accept "Garza's path to common-sense interpretation of

the Supreme Court's requirements in Taylor," arguing that "[i]n

Garza, we rejected a literal reading of Taylor that seemed to

require the presentation of both the indictments and the jury

instructions."26      But the Taylor opinion does not "seem" to require

such a conjunctive presentation; it expressly requires it.27                  The

     24
          Taylor, 495 U.S. at 600.
     25
       Id. (citing, inter alia, Vidaure, 861 F.2d at 1340 (5th
Cir. 1988)). The Court continued, stating that "[i]f Congress had
meant to adopt an approach that would require the sentencing
court to engage in an elaborate fact-finding process regarding
the defendant's prior offenses, surely this would have been
mentioned somewhere in the legislative history." Id. at 601.
     26
          Special Concurrence at 2 (some emphasis added).
     27
       See Taylor, 495 U.S. at 602. Moreover, because of its
concern with unfettered factfinding by the sentencing court, the
Court specifically rejected the proposition that enhancement
based on the charging papers alone))even in the case of a guilty
plea))could be sufficient, stating:
          [T]he practical difficulties and potential unfairness
     of a factual approach are daunting. In all cases where the
     Government alleges that the defendant's actual conduct would
     fit the generic definition of burglary, the trial court
     would have to determine what that conduct was. In some
     cases, the indictment or other charging paper might reveal
     the theory or theories of the case presented to the jury.
     In other cases, however, only the Government's actual proof
     at trial would indicate whether the defendant's conduct
     constituted generic burglary. Would the Government be
     permitted to introduce the trial transcript before the

                                         12
Supreme Court clearly considered all of the arguments           made in the

special concurrence, and just as clearly (and unanimously) rejected

them.      Instead the Court adopted a "categorical approach" with its

one exception.      In a nutshell, neither we nor our co-panelist may

wrap ourselves in the banner of "common sense"          in order to depart

from the clear and unambiguous language of a Supreme Court opinion.

      The government insists (and our concurring colleague agrees)

that the instant case is controlled by United States v. Fields.28

Not so.      In Fields, we held that a convicted felon whose sentence

had   been     enhanced   under   §   924(e)   could   not   challenge   the

evidentiary basis of the enhancement because "no objection to the

report" had been made during the sentencing phase of the trial.           We

stated that "[a]s a result [of the lack of an objection], the

report provided an adequate basis for the sentencing judge to




     sentencing court, or if no transcript is available present
     the testimony of witnesses? Could the defense present
     witnesses of its own and argue that the jury might have
     returned a guilty verdict on some theory that did not
     require a finding that the defendant committed generic
     burglary? If the sentencing court were to conclude, from
     its own review of the record, that the defendant actually
     committed a generic burglary, could the defendant challenge
     this conclusion as abridging his right to a jury trial?
     Also, in cases where the defendant pleaded guilty, there
     often is no record of the underlying facts. Even if the
     Government were able to prove those facts, if a guilty plea
     to a lesser nonburglary offense was the result of a plea
     bargain, it would seem unfair to impose a sentence
     enhancement as if the defendant had pleaded guilty to
     burglary.
Taylor, 495 U.S. at 601-02 (emphasis added).
      28
       923 F.2d 358, 360-61 (5th Cir.), cert. denied, 111 S. Ct.
2066 (1991).

                                      13
determine that Fields had committed three prior felonies."29                 The

issue in Fields was one of reliability of the facially adequate

evidence in the PSR.      Here, neither the reliability nor truth of

the information in Martinez-Cortez's PSR is at issue; it is not

even challenged as being unreliable.        Rather, the evidence of the

subject   burglary    conviction    is    challenged     as     being   legally

inadequate under Taylor.

     In   relying    on   Fields,   the    presumption        upon   which   the

government's assertion here rests is that simple statements in the

PSR can be adequate to prove a prior burglary conviction for

purposes of a § 924(e) sentence enhancement.           Although we do not

question that truism as an abstract statement, a straight-forward

reading of Taylor eschews the applicability of any such presumption

under the instant circumstances.           Taylor allows two))but only

two))optional standards of proof of a prior burglary conviction to

support enhancement under § 924(e).30       Introduction of nothing more

     29
       Id. at 361 (citing United States v. Ruiz, 580 F.2d 177,
177-78 (5th Cir.), cert. denied, 439 U.S. 1051 (1978)).
     30
       Our co-panelist's special concurrence also finds support
in Fields, stating that the issue in Taylor, like that in Fields,
is merely reliability of the evidence presented to prove the
prior conviction. His argument that Fields applies in this case
relies on the premise that "any other equivalent form of proof"
is acceptable to prove the prior conviction. Moreover, he argues
that "[t]o say otherwise reduces Taylor to an arbitrary standard
devoid of reason." Special Concurrence at 3. Our co-panelist is
simply incorrect. A rule that requires specific types of proof
is not "devoid of reason" merely because the Supreme Court
believed that extensive factfinding in the sentencing court would
be inappropriate. Although Fields held that the evidentiary
basis of statements in a PSR cannot be challenged on appeal
without a proper objection in the trial court, that holding has
no relevance in a sentence enhancement case in which a PSR
standing alone can never be adequate, under Supreme Court

                                    14
than some undefined report from some unidentified source via the

probation     officer's   second   hand   statement   in    a   presentence

investigation report obviously does not comply with either of

Taylor's two alternatives.31 The fact that on appeal we cannot look

behind the facts in a PSR which was not objected to at sentencing

simply does not address, much less resolve, the challenge that the

introduction of the PSR))even when accepted as true and reliable))is

legally inadequate to prove that the crime of the          prior conviction

was generic burglary.



C.   The Effect of "Plain Error"

      But as we have already noted, no contemporaneous objection was

made to the introduction of the PSR in the district court or to its

adequacy as proof of the prior burglary conviction for purposes of

sentence enhancement.      Therefore, we are severely limited in our

review of that issue by the "plain error" standard.32 We must treat

the issue, raised first on appeal, in the same manner as any other

issue not raised in the district court:          "An exception [to the

general rule of non-reviewability] is usually made whe[n] the newly

raised issue concerns a pure question of law and a refusal to



authority, to prove a prior burglary conviction.
      31
       We note that at least one of the twelve convictions for
which Fields's sentence was enhanced was for burglary. See
Fields, 923 F.2d at 359 n.1. Fields was decided after Taylor.
It is clear, however, that simply because a prior panel did not
flesh out a issue such as this, we are not precluded from its
investigation.
      32
           See supra notes 5-8 and accompanying text.

                                    15
consider it would result in a miscarriage of justice."33

     Although the sufficiency of the evidence needed to enhance the

sentence is unquestionably a "pure question of law,"34 we conclude

that no miscarriage of justice will result from our refusal to

vacate the sentence in the instant case.        This is so because the

record before us makes clear that the burglary for which Martinez-

Cortez was convicted in 1971 was a "generic" burglary under Taylor.

By definition, no "manifest injustice" occurs when a sentence

imposed in error by the district court is nonetheless one that

would have been lawful had extant evidence of the prior conviction

been introduced.

     The sentencing error of the district court here was enhancing

the sentence in reliance on woefully inadequate PSR evidence of the

1971 burglary conviction instead of requiring the kind of evidence

that would meet one or the other of the Taylor requirements.          We

find from the record that the type of Taylor evidence regarding the

1971 burglary conviction did exist.       If it had been introduced, the

enhancement      of   Martinez-Cortez's    sentence   would   have   been

sustainable.       First,   the Texas statutes under which he was

convicted were sufficiently narrow to be classified as "generic

burglary."      We held in Silva that the current Texas burglary

statute, which was codified in 1974, was sufficiently narrow to be


     33
       Volkswagen of Am., Inc. v. Robertson, 713 F.2d 1151, 1166
(5th Cir. 1983)(emphasis added)(citing Coastal States Mktg., Inc.
v. Hunt, 694 F.2d 1358, 1364 (5th Cir. 1983)); see Lopez, 923
F.2d at 50; supra notes 7-8.
     34
          See Vidaure, 861 F.2d at 1338.

                                   16
"generic" under Taylor.35        The applicable Texas Penal Code articles

that existed prior to the 1974 codification))those under which

Martinez-Cortez was convicted in 1971))were even narrower than the

current Texas law.          The commentary that accompanies the 1974

codification notes:       "The types of intrusions made burglarious by

Section 30.02 are more varied than in prior law."36                The commentary

then lists several examples of how the law was broadened in 1974.

As the pre-1974 statute indisputably did not comprise any non-

generic      burglary,    that    such    statute         would   have   supported

enhancement had a true copy of it been submitted in accordance with

Taylor is equally indisputable.

     In addition to the generic nature of the statute under which

Martinez-Cortez was convicted, the crime of which he was convicted

in 1971 actually was a generic burglary. Martinez-Cortez's counsel

acknowledged      that   his   client    has    never      disputed   the   factual

accuracy     of   the    statement   in       the   PSR    describing    the   1971

conviction, contending only that those facts do not satisfy Taylor.

Even though Martinez-Cortez was initially informed, by means of an

enhancement notice attached to the indictment, of the government's

intention to seek enhancement, he neither objected to the inclusion

of the reference to the 1971 conviction in the PSR nor attempted to

prove that the burglary was non-generic.                  As Martinez-Cortez did

     35
      See Silva, 957 F.2d at 161; TEX. PENAL CODE ANN. § 30.02
(West 1989). The concern of the Taylor court was that state
burglary statutes might be more broad than the "generic"
definition (e.g., might criminalize thefts from cars (which would
be non-generic) as well as buildings or structures).
     36
          (Emphasis added).

                                         17
not object to or question the accuracy of the report as reflecting

the 1971 conviction, we must assume that the charging papers and

the verdict of guilty by the state court jury mirror the statement

in the PSR.     Although the elements of generic burglary are not

expressed precisely in that statement, when we read it in pari

materia with the narrow statute under which Martinez-Cortez was

convicted we have no difficulty in concluding that the crime he

committed in 1971 was "generic" burglary.            His entry into the

"establishment" was certainly unauthorized and his threat to the

witness and subsequent apprehension while armed and apparently in

possession of contraband eschew any conclusion but that the purpose

of his forcible entry into the establishment was to commit a crime.

     Having thus determined that both the burglary Martinez-Cortez

committed in 1971 and the burglary statute under which he was

convicted were in fact of the generic type that would support

enhancement under Taylor's interpretation of § 924(e), the "plain

error" standard interdicts our vacatur of the enhanced sentence

even though it was grounded in the erroneous acceptance of the

government's   production    of   inadequate   evidence.37   Again,   had

Martinez-Cortez raised this issue in the district court and the

government    adduced   no   additional   evidence   concerning   generic

burglary, our standard of review would have been de novo and the


     37
      Our post-hoc rationalization of the enhancement is clearly
in line with the standard of review. When the enhancement given
was predicated on convictions that met the enhancement's
requirements, no "manifest injustice" can result merely because
the government did not proffer the correct evidence at the
sentencing.

                                    18
result we would have reached under it would likely have been quite

different.   We speculate, however, that had such an objection been

made it would have prompted the government to do what it should

have been done initially))introduce evidence sufficient to meet

either or both of Taylor's alternative proof requirements.




D.   Double Jeopardy

      Martinez-Cortez asserts that, as his conviction was enhanced

on   insufficient   evidence,    any   reapplication   of   the   sentence

enhancement provisions on remand would require adducing additional

evidence and thereby constitute double jeopardy. We do not have to

address this claim because we do not find reversible error and thus

do not vacate the enhanced sentence an remand it for further

proceedings.



                                   III

                                CONCLUSION

      Under our analysis of the requirements of the Supreme Court's

Taylor decision for sentence enhancement under § 924(e), we find

that the district court erred in accepting as sufficient the

government's   inadequate    evidence     of   Martinez-Cortez's     prior

burglary offense.      The Taylor decision sets out specific proof

requirements that must be met when burglary is a prior offense used

to support sentence enhancement under § 924(e).        Nevertheless, as

the applicable standard of review here is plain error))and as we do


                                    19
not find plain error in the circumstances of the instant case))the

sentence imposed is

AFFIRMED.

E. GRADY JOLLY, specially concurring:

     I write separately to say that a fair interpretation of the

United States Supreme Court's opinion in Taylor v. U.S.38 does not

bind us to an inflexible reading of Taylor's "requirements."

     The majority reads Taylor as establishing two "alternative but

exclusive methods" which the government may use to prove that a

defendant's prior burglary conviction was in fact for a "generic"

burglary. In addition to proving the fact of the prior conviction,

the government must--on pain of reversal--present the trial court

with either (1) "proper copies" of the burglary statute under which

the defendant was previously convicted; or (2) copies of the

indictment or the jury instructions under which the defendant was

previously convicted.39     Thus, the majority establishes a per se

rule that in my view was not intended by the Taylor court.


     38
          495 U.S. 575, 110 S.Ct. 2143 (1990).
     39
      To be sure, the Supreme Court in Taylor stated that "if
the indictment or information and jury instructions show that the
defendant was charged with a [generic] burglary..., and that the
jury necessarily had to find [the elements of a generic burglary]
to convict, then the Government should be allowed to use the
conviction for enhancement." 495 U.S. at 602, 110 S.Ct. at 2160
(emphasis added). This circuit has previously interpreted this
passage from Taylor in a flexible, common sense manner, holding
that either the indictment or the bill of information or the jury
instructions will suffice to prove a "generic" burglary
sufficient to meet § 924(e)'s requirements. As will be discussed
later, the majority offers no reason why such a common sense
interpretation cannot be applied to the portion of the Taylor
opinion currently before the court.

                                   20
     I would read Taylor as requiring presentation of either the

statute under which the defendant was previously convicted, or the

indictment, or the bill of information, or any other form of

equally reliable proof showing that the defendant indeed had

committed a "generic" burglary.            I see the specific forms of proof

enumerated by the Court as illustrative, not exclusive.                   Under the

majority's literal interpretation, anomalous results will obtain;

for example, if a defendant knowingly admits committing a generic

burglary,     the    uncontested    voluntary        admission    would    yet    be

insufficient to uphold a § 924(e) enhancement.                    Surely, such a

result could not have been intended by the Supreme Court.

     I favor the rationale adopted by this circuit in the Garza

case, in which the court refused to adhere to a rigid reading of

Taylor's requirements when such an application produces nonsensical

results.     In Garza40, we rejected a literal reading of Taylor that

seemed to require the presentation of both the indictments and the

jury instructions. There we recognized the serious flaw of a rigid

application       because   in   guilty     pleas,     jury    instructions      are

obviously never formulated; instead we sensibly read the Supreme

Court's command as allowing proof of the indictments alone.                      The

majority     in   this   case    rejects    Garza's     path     to   common-sense

interpretation of the Supreme Court's requirements in Taylor.

     Further, the majority rejects still another blazed trail to a

sound interpretation of Taylor.           In U.S. v. Fields41, the defendant

objected to the presentence report as means of proof of his prior

     40
          United States v. Garza, 921 F.2d 59 (5th Cir. 1991).
     41
          923 F.2d 358 (5th Cir. 1991).
felony       convictions.     In     rejecting        Fields's      argument,   we

unequivocally stated that "the report provided an adequate basis

for the sentencing judge to determine that Fields had committed

three prior felonies."42           The majority dismisses Fields in its

entirety by stating: "[t]he issue in Fields was one of reliability

of   the     facially   adequate    evidence     of    the   PSR.      Here,    the

reliability or truth of the information in Martinez-Cortez's PSR is

not at issue....Rather, the evidence of the subject burglary

conviction      is   challenged    as    being   legally     inadequate     under

Taylor."43      The majority fails to recognize that Taylor is also

concerned with reliability.         It requires that the elements of the

statute be established through a reliable source: either the

statute itself, the indictment, the bill of information, or--in my

view--any other equivalent form of proof, such as an uncontested

voluntary admission of a fact.          To say otherwise reduces Taylor to

an arbitrary standard devoid of reason.               Fields illustrates that

this circuit has previously accepted PSRs as "legally adequate"

proof to be used in § 924(e) enhancement proceedings.                     How the

majority can conclude that an uncontested PSR (the equivalent of an

admission) that proves the elements of a generic burglary is

"legally inadequate" (to use the majority's words), escapes me.

      In truth, I think that the majority does a disservice to the


      42
           Fields, 923 F.2d at 361.
      43
           Majority opinion at 11.




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                                         22
Taylor opinion by construing its literal language so mechanically.

We should endorse a common sense, reasonable interpretation of the

opinion that allows equally reliable forms of proof of a generic

burglary.   In the light of the Fields opinion, I believe that the

uncontested PSR upon which the trial judge relied in the instant

case, which described the actual burglary of which the defendant

was   convicted,   certainly   provided   sufficient   proof    of   the

conviction under Taylor to allow its use in § 924(e) enhancement

proceedings.   In any event, the majority's creation of a per se

rule in this case is both unnecessary and unwarranted.         For these

reasons, while concurring in the result, I respectfully take

exception to the majority's application of Taylor.




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