                                                          [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                 OCT 17, 2006
                                 No. 06-11729                  THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                    D. C. Docket No. 05-00212-CR-J-20-MCR

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

SIDNEY WILLIS BRANSON,

                                                             Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                (October 17, 2006)

Before DUBINA, BLACK and HULL, Circuit Judges.

PER CURIAM:

      Sidney Willis Branson appeals his 180-month sentence for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e). He
asserts the district court erred by: (1) finding his 1988 and 1999 convictions for

“burglary of a structure” constituted “generic burglaries” under the Armed Career

Criminal Act (ACCA); and (2) finding his 1988 and 1999 convictions qualified as

predicate offenses under the ACCA. The district court did not err, and we affirm.

                                          I.

      Branson asserts the district court erred by finding his 1988 and 1999

convictions for “burglary of a structure” constituted “generic burglaries” under the

ACCA, 18 U.S.C. § 924(e), because: (1) given Florida’s inclusion of the term “the

curtilage thereof” in defining burglary of a structure, the Government’s sole

reliance on the judgments and charging documents underlying his prior convictions

did not meet its burden of proving he burglarized anything more than property

surrounding the structure in question; and (2) with respect to his 1999 conviction,

the district court impermissibly looked beyond the judgment, to the charging

document, which included a greater offense than that to which he actually pled

nolo contendere.

      We review de novo whether a particular offense constitutes a violent felony

for purposes of the ACCA, 18 U.S.C. § 924(e). United States v. Wilkerson, 286

F.3d 1324, 1325 (11th Cir. 2002). Section 924(e) provides:

      (1) In the case of a person who violates section 922(g) of this title and
      has three previous convictions by any court referred to in section

                                          2
      922(g)(1) of this title for a violent felony . . . such person shall
      be . . . imprisoned not less than fifteen years . . . .

      ...

      (2)(B) [T]he term “violent felony” means any crime punishable by
      imprisonment for a term exceeding one year . . . 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 . . .

      In Taylor v. United States, 110 S. Ct. 2143, 2158, 2160 (1990), the Supreme

Court defined “burglary” for purposes of a § 924(e) enhancement as (1) “generic

burglary,” namely, an offense “having the basic elements of unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent to

commit a crime,” or (2) an offense for which the charging paper and jury

instructions actually required the jury to find all of the elements constituting

generic burglary in order to convict the defendant. In Shepard v. United States, the

Supreme Court summarized its approach in Taylor:

      Because statutes in some States . . . define burglary more broadly, as
      by extending it to entries into boats and cars, we had to consider how
      a later court sentencing under the ACCA might tell whether a prior
      burglary conviction was for the generic offense. We held that the
      ACCA generally prohibits the later court from delving into particular
      facts disclosed by the record of conviction, thus leaving the court
      normally to “look only to the fact of conviction and the statutory
      definition of the prior offense.” We recognized an exception to this
      “categorical approach” only for “a narrow range of cases where a jury

                                            3
      [in a State with a broader definition of burglary] was actually required
      to find all the elements of” the generic offense. We held the exception
      applicable ‘if the indictment or information and jury instructions show
      that the defendant was charged only with a burglary of a building,
      and that the jury necessarily had to find an entry of a building to
      convict . . . .” Only then might a conviction under a “nongeneric”
      burglary statute qualify as an ACCA predicate.

125 S. Ct. 1254, 1257-58 (2005) (citations omitted, emphasis added). The Court in

Shepard ultimately held:

      enquiry under the ACCA to determine whether a plea of guilty to
      burglary defined by a nongeneric statute necessarily admitted
      elements of the generic offense is limited to the terms of the charging
      document, the terms of a plea agreement or transcript of colloquy
      between judge and defendant in which the factual basis for the plea
      was confirmed by the defendant, or to some comparable judicial
      record of this information.

Id. at 1263 (emphasis added). The Court noted “[w]ith such material in a pleaded

case, a later court could generally tell whether the plea had ‘necessarily’ rested on

the fact identifying the burglary as generic, just as the details of instructions could

support that conclusion in the jury case, or the details of a generically limited

charging document would do in any sort of case.” Id. at 1260 (citation omitted).

      At the time of the 1988 offense and 1994 offense underlying the 1999

conviction, Florida defined burglary as “entering or remaining in a structure or a

conveyance with the intent to commit an offense therein . . . .” § 810.02(1), Fla.

Stat. (1987), (1994). Under Florida law, the terms “structure” and “dwelling”



                                            4
include both the roofed area of a building and “the curtilage thereof.”

§ 810.011(1), (2), Fla. Stat (1987), (1994). The Supreme Court of Florida has

strictly construed the term “curtilage,” as used in § 810.02, to include only an

enclosed area surrounding the home or structure. State v. Hamilton, 660 So. 2d

1038, 1044-45 (Fla. 1995).

      Florida’s burglary statute defines burglary broadly, to include burglary of

areas outside a structure, and the district court needed to consult the charging

document. See Shepard, 125 S. Ct. at 1263. Thus, the statute is non-generic.

United States v. Day, __ F.3d __, No. 05-15676, 2006 WL 2739348, at *3 (11th

Cir. Sept. 27, 2006). Accordingly, we must determine whether the district court

considered the appropriate portions of the record to determine whether Branson’s

prior convictions constituted “generic” burglaries.

      As to his 1988 conviction, Branson pled nolo contendere to an information

that charged “unlawfully enter[ing] or remain[ing] in a certain structure, to-wit: a

storage shed,” with intent to commit theft within. 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,” it qualifies as a generic burglary under

the ACCA. See Taylor, 110 S. Ct. at 2158 (emphasis added). Although, under the

Florida burglary statute, Branson could have been convicted for burglary of only a



                                           5
structure’s curtilage, the charging document indicates that he did, in fact,

burglarize “a certain structure, to wit: a storage shed[.]” The district court

appropriately looked to the information and judgment underlying the 1988

conviction to determine whether it constituted a generic burglary for purposes of

the ACCA. See Shepard, 125 S. Ct. 1263. Accordingly, contrary to Branson’s

contention, because the offense underlying his 1988 conviction constitutes the third

predicate offense required for application of the ACCA enhancement, we affirm

application of the ACCA enhancement, and find it unnecessary to decide whether

Branson’s 1999 constituted a violent felony.1

                                                II.

       Branson also asserts the district court’s finding his 1988 and 1999

convictions qualified as predicate offenses under the ACCA violated his Sixth

Amendment rights because these findings were not made by a jury or admitted by

him, and the court relied on disputed portions of charging documents in making

these findings.




       1
         Recently, we vacated and remanded a defendant’s sentence, holding the district court erred
in basing applicability of the ACCA enhancement only on the charging document from a prior
conviction because that document charged the defendant with a different offense than the one to
which he had pled nolo contendere. Day,__ F.3d __, 2006 WL 2739348, at *4. As to Branson’s
1988 conviction, the charging document and judgment included the same offense, thus Day is not
applicable.

                                                6
      Because Branson raised a constitutional claim below, we review de novo

whether the district court applied a sentencing enhancement in violation of the

Sixth Amendment, reversing only for harmful error. See United States v. Paz, 405

F.3d 946, 948 (11th Cir. 2005). In Almendarez-Torres v. United States, the

Supreme Court held the government need not allege in its indictment and need not

prove beyond a reasonable doubt that a defendant had prior convictions in order for

the district court to use those convictions for purposes of enhancing a sentence.

118 S. Ct. 1219, 1222 (1998). After Apprendi v. New Jersey, 120 S. Ct. 2348,

2362-63 (2000), Blakely v. Washington, 134 S. Ct. 2531, 2537 (2004), United

States v. Booker, 125 S. Ct. 738, 756 (2005), and Shepard, we continue to apply

Almendarez-Torres. See United States v. Camacho-Ibarquen, 410 F.3d 1307,

1315-16 (11th Cir.), cert. denied, 126 S. Ct. 457 (2005).

      To the extent Branson is contending the district court engaged in

impermissible fact-finding, we conclude the district court did not engage in

impermissible fact-finding when it determined the prior burglaries qualified as

violent felonies for purposes of enhancing Branson’s sentence under the ACCA.

We have held “Shepard does not bar judges from finding whether prior convictions

qualify for ACCA purposes; it restricts the sources or evidence that a judge

(instead of a jury) can consider in making that finding.” United States v. Greer,



                                          7
440 F.3d 1267, 1275 (11th Cir. 2006). In the instant case, the district court

considered only the terms of the charging documents and the judgments of

conviction in determining whether Branson’s burglary convictions constituted

qualifying convictions under the ACCA, which are permissible under Shepard.

         Additionally, the imposition of the armed career criminal enhancement did

not implicate the Apprendi/Blakely/Booker line of cases, as those cases clearly

exempt prior convictions from the type of facts that must be admitted by the

defendant or proved to a jury beyond a reasonable doubt in order to support a

sentencing enhancement. We have held until the Supreme Court holds otherwise,

Almendarez-Torres remains good law. See United States. Orduno-Mireles, 405

F.3d 960, 963 (11th Cir. 2003). Accordingly, we reject Branson’s constitutional

claim.

         AFFIRMED.




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