                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 10, 2007
                                                     Elisabeth A. Shumaker
                      UNITED STATES CO URT O F APPEALS Clerk of Court

                                   TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                       No. 06-8148
 v.                                             (D.C. No. 05-CR-299-W FD)
                                                        (D . W yo.)
 JEFFREY KIM RO BERTS,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Jeffrey Kim Roberts appeals his sentence of 180 months’ imprisonment

imposed following his guilty plea on charges that he was a felon in possession of

a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In a brief filed

pursuant to Anders v. California, 386 U.S. 738 (1967), Roberts’ counsel moves

for leave to withdraw and raises the sole of issue of whether Roberts’ four prior




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
burglary convictions were properly classified as “violent felon[ies]” under the

A rm ed C areer C riminal A ct (“A CCA”), 18 U.S.C. § 924(e). Because we

conclude that the district court properly applied ACCA, we AFFIRM Roberts’

sentence, DISM ISS the appeal, and GRANT counsel’s motion to withdraw.

                                         I

      Acting on a tip from a confidential informant that Roberts w as involved in

a methamphetamine distribution ring and that Roberts illegally possessed

firearms, state law enforcement officers executed a search w arrant at Roberts’

trailer home near Rock Springs, W yoming, on September 15, 2005. W hen the

officers arrived with the warrant, they found a resistant Roberts wielding what

appeared to be a three-foot stick with knife blades protruding from it. Roberts

initially refused to drop the homemade weapon, and the officers w ere forced to

set off a flash-bang device so that they could distract and detain him. Once inside

the home, the officers discovered that the confidential informant was at least

partially accurate in his allegations— Roberts was armed with more than a stick.

He also had a .22 caliber Ruger revolver stashed near the front entryway of the

home, less than an arm’s length aw ay from where he stood w hen the officers first

approached him. In addition to the gun, the officers’ search revealed ammunition,

a loaded crossbow, multiple knives, body armor, a gun-cleaning rod, a used gun-

cleaning kit, a small amount of marijuana, and drug paraphernalia. W hat the




                                        -2-
officers failed to locate, however, was any meaningful quantity of

methamphetamine.

      On November 16, 2005, a federal grand jury issued a two-count indictment

against Roberts, alleging that he unlawfully possessed a firearm and ammunition

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Roberts initially pleaded

not guilty to both counts, but later entered into a written plea agreement with the

government in which he agreed to plead guilty to the firearms charge. In

exchange for that plea, the government agreed to drop the ammunition charge.

      Roberts’ Presentence Report (“PSR”) calculated an initial 32-point base

offense level because he was alleged to have possessed the firearm in connection

with another felony offense— the distribution of 453.6 grams of

methamphetamine. See U.S.S.G. §§ 2D1.1(c)(5), (b)(1), and 2K2.1(c)(1)(A).

After adding two points for Roberts’ four prior burglary convictions and

subtracting three points for his acceptance of responsibility, the PSR calculated a

final adjusted offense level of 31. It also indicated a criminal history category of

VI. Taken together, the offense level and criminal history category provided a

sentencing range of 188 to 235 months’ imprisonment. Because he had

previously been convicted of four burglaries in W yoming, however, the PSR also

classified Roberts as an “armed career criminal” subject to a statutory minimum

sentence of 180 months under A CCA. See 18 U.S.C. § 924(e)(1).




                                        -3-
      Responding to the PSR, Roberts advanced two substantive arguments: (1)

there was no evidence in the record to support a nexus between his possession of

the firearm and his alleged involvement in the distribution of methamphetamine;

and (2) he should not have been classified as an “armed career criminal” under

ACCA because the government had failed to provide any evidence that his prior

burglary convictions constituted violent crimes in accordance with Shepard v.

United States, 544 U.S. 13 (2005), and Taylor v. United States, 495 U.S. 575

(1990).

      Finding that ACCA applied to Roberts, the district court sentenced Roberts

to the mandatory minimum of 180 months’ imprisonment. This timely appeal

followed.

                                         II

      If an attorney conscientiously examines a case and determines that any

appeal would be wholly frivolous, counsel may “so advise the court and request

permission to withdraw.” Anders, 386 U.S. at 744. Counsel must submit a brief

to both the appellate court and the client, pointing to anything in the record that

would potentially present an appealable issue. Id. The client may then choose to

“raise any points that he chooses” in response to counsel’s brief. Id. If, upon

complete examination of the record, the court determines that the appeal is in fact

frivolous, it may grant the request to withdraw and dismiss the appeal. Id.




                                         -4-
      Acting pursuant to Anders in the present case, counsel provided Roberts

with a copy of the appellate brief, and Roberts has declined the opportunity to file

a pro se brief in response. Counsel’s brief raises only one arguably appealable

issue: Do Roberts’ four prior burglary convictions qualify as “violent felon[ies]”

for purposes of ACCA, such that Roberts is subject to a mandatory minimum

sentence of 180 months? This issue presents a purely legal question that we

review de novo. United States v. Nevels, 490 F.3d 800, 806 (10th Cir. 2007).

      ACCA defines a “violent felony” as “any crime punishable by

imprisonment for a term exceeding one year, . . . [including] burglary . . . .” 18

U.S.C. § 924(e)(2)(B). To determine whether a particular defendant’s state

burglary conviction meets this definition, we apply the categorical approach set

forth by the Supreme Court in Taylor. Under this approach, we must ascertain

whether the elements of the statute under w hich the defendant was convicted are

consistent with the basic elements of “generic burglary,” id. at 599, which is

defined as a burglary committed in either a building or an enclosed space, but not

a burglary committed in a boat or motor vehicle. Shepard, 544 U.S. at 15-16. If

the statute at issue criminalizes more than generic burglary, we may look beyond

the statute to the “charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the

defendant assented,” to discern the type of burglary for which the defendant was

convicted. Id. at 16.

                                         -5-
      Roberts was convicted under a W yoming statute that provides: “A person

is guilty of burglary if, without authority, he enters or remains in a building,

occupied structure or vehicle, or separately secured or occupied portion thereof,

with intent to commit larceny or a felony therein.” W yo. Stat. Ann. § 6-3-301(a).

Because this statute allows for a defendant to be convicted of burglary within a

“vehicle,” it criminalizes more than generic burglary. See Shepard, 544 U.S. at

16. W e thus turn to the record before us to determine whether any of the relevant

documents introduced by the government disclose the specific location in which

Roberts comm itted the burglaries at issue.

      At the defendant’s sentencing hearing, the government introduced certified

copies of each of Roberts’ four burglary convictions to prove that he had been

convicted of generic burglary. Included within those certified copies were

charging documents that indicate that three of the crimes were committed when

Roberts entered commercial buildings and that one was comm itted when he

entered a residence. Given that Roberts has not provided any evidence to

challenge the accuracy of those documents, we do not hesitate to conclude that his

prior crimes constituted “generic burglaries” within the meaning of Shepard and

Taylor and are thus “violent felonies” under ACCA. W e therefore hold that the

district court appropriately classified Roberts as an “armed career criminal”

subject to a mandatory minimum sentence of 180 months’ imprisonment.




                                          -6-
      Because Roberts fails to present us with any meritorious grounds for

appeal, we A FFIR M his sentence, DISM ISS the appeal, and GR ANT counsel’s

m otion to w ithdraw .



                                     ENTERED FOR THE COURT




                                     Carlos F. Lucero
                                     Circuit Judge




                                       -7-
