                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 18, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 13-5117
                                              (D.C. No. 4:13-CR-00050-JHP-1)
 THEODORE BURCH, JR.,                                 N.D. Oklahoma

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). Accordingly, we

honor the parties’ requests and order the case submitted without oral argument.

      In 2013, Defendant-Appellant Theodore Burch, Jr. pleaded guilty to being

a convicted felon in possession of a firearm, in violation of 18 U.S.C. §



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
922(g)(1). The Presentence Investigation Report recommended that Burch be

sentenced under the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. §

924(e) (establishing a minimum mandatory sentence of fifteen years for a

defendant convicted of violating § 922(g) if he has three previous convictions for

violent felonies or serious drug offenses). Burch objected to that

recommendation, arguing “the modified categorical approach must be applied” to

determine whether his two prior Oklahoma state convictions for second degree

burglary are violent felony convictions under 18 U.S.C. § 924(e)(2)(B). [objection

to PSR @ 4] See United States v. Hill, 53 F.3d 1151, 1154-55 (10th Cir. 1995)

(applying the modified categorical approach to determine whether defendant’s

prior conviction under the Oklahoma burglary statute was a violent felony for

purposes of the ACCA). Specifically, he asserted the Government was required

to demonstrate “the entering was not by tool and that the goods were remo[]ved

from a building rather than one of the alternative objects set forth in the second

degree burglary statute.” 1

      In response to Burch’s objection, the Government presented the charging

documents on which the two Oklahoma burglary convictions were based and the

two accompanying judgments. Because Burch pleaded guilty to both charges, he


      1
        The Oklahoma Uniform Jury Instructions define “entering,” to include the
insertion of a tool or instrument inside a dwelling “if the insertion of the tool or
instrument is capable of completing the purpose of the intended crime.” Okla.
Uniform Jury Instructions, Crim.2d, § 5-18.

                                         -2-
admitted entering two buildings with the intent to steal personal property. As to

Burch’s argument the Government was required to show the entering did not

occur by use of a tool or instrument, the Government noted this court has held

that “the Supreme Court’s definition of generic burglary for purposes of the

ACCA encompasses ‘entry by a tool or an instrument.’” United States v.

Cartwright, 678 F.3d 907, 914 (10th Cir. 2012).

      The district court resolved Burch’s objection during the sentencing hearing.

The court overruled the objection, concluding it was clear from the charging

documents and the rulings of the Supreme Court and this court that Burch’s prior

convictions for second degree burglary met the definition of generic burglary.

Thus, the Government met its burden of showing Burch had three prior violent

felony convictions for purposes of the ACCA. 2 The district court sentenced

Burch to the minimum mandatory term of fifteen years’ imprisonment.

      Burch acknowledges the Government’s evidence shows his prior burglary

convictions involved the burglary of buildings. Relying on the Supreme Court’s

recent opinion in Descamps v. United States, however, Burch now asserts

Oklahoma defines burglary not alternatively, but more broadly than generic

burglary because the element of entry applies to entry by a tool or by a person.

Cf. 133 S. Ct. 2279, 2283 (2013) (holding the modified categorical approach does


      2
     Burch did not challenge the characterization of two robbery convictions as
ACCA predicate offenses.

                                        -3-
not apply to statutes “that contain a single, ‘indivisible’ set of elements sweeping

more broadly than the corresponding generic offense”). Thus, according to

Burch, Oklahoma’s burglary offense is non-divisible and the modified categorical

approach is inapplicable. See id. at 2285-86.

      Burch acknowledges this court has previously held that generic burglary

includes “actual intrusion into [a] home with [a] tool . . . capable of completing

the purpose of the crime,” foreclosing the argument he raises on appeal.

Cartwright, 678 F.3d at 913. He states his appeal was filed for the purpose of

preserving his claim “that Oklahoma’s second degree burglary is not subject to

the modified categorical analysis, and the district [sic] erred by relying on such

analysis in reaching the decision to invoke the ACCA.”

      We acknowledge Burch’s argument, but express no opinion on whether it

was properly preserved in the district court.

      The sentence imposed by the district court is affirmed.



                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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