                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       February 13, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 05-5022
v.                                            (Northern District of Oklahoma)
                                                (D.C. No. 03-CR-167-CVE)
DANIEL EUGENE WRIGHT,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.


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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is, therefore,

ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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. 36.3.
I. Introduction

      Appellant Daniel Eugene Wright appeals the district court’s determination

that he was an armed career criminal as defined by the United States Sentencing

Guidelines Manual (“USSG”) § 4B1.4 and the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e). We assert jurisdiction pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742, and affirm.

II. Background

      Wright pleaded guilty in the United States District Court for the Northern

District of Oklahoma to conspiracy to manufacture, possess, and distribute

methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), and possession

of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Wright

was classified as an armed career criminal because he had three prior convictions

for a violent felony. 18 U.S.C. § 924(e). The district court determined Wright’s

prior New Mexico convictions for (1) Commercial Burglary and Larceny over

$250, (2) Armed Robbery and Aggravated Assault with a Deadly Weapon, and (3)

Commercial Burglary and Larceny over $2,500, constituted violent felonies.

Wright was sentenced to two 188 month terms of imprisonment, with the terms to

run concurrently. See USSG § 4B1.4 (providing offense levels for armed career

criminals). Wright challenges the use of his first commercial burglary conviction

as a predicate violent felony under the ACCA.


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III. Discussion

      We review de novo whether a prior conviction is a violent felony for

purposes of enhancement under the ACCA and USSG § 4B1.4. United States v.

King, 422 F.3d 1055, 1057 (10th Cir. 2005). Burglary is listed as a violent felony

in the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii). In Taylor v. United States, however,

the Supreme Court held Congress only intended the ACCA to be triggered by

crimes having the elements of “generic” burglary. 495 U.S. 575, 598 (1990).

“Generic” burglary, according to the Court, consists of an “unlawful or

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

commit a crime.” Id.

      Wright was convicted of commercial burglary under a nongeneric statute.

See N.M. Stat. Ann. § 30-16-3(B) (criminalizing entry into “any vehicle,

watercraft, aircraft, dwelling or other structure”). Therefore, we must look to

other documents to determine whether Wright actually committed a generic

burglary by entering a building or structure. United States v. Shepard, 125 S. Ct.

1254, 1257 (2005); Taylor, 495 U.S. at 602. We are limited, however, “to

examining the . . . charging document, written plea agreement, transcript of plea

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

defendant assented.” Shepard, 125 S. Ct. at 1257.




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      The district court determined the transcript of the plea colloquy where

Wright pleaded guilty to commercial burglary was sufficient to establish that

Wright admitted entering a building or structure. At the plea hearing, the

prosecutor read the plea agreement and then stated:

      Had this matter proceeded to trial, the State would have shown . . .
      through the testimony of Gilbert Zamara, Joe Carosco, Joe Garli, and
      Alfred Soto of the Valencia Police Department, that on or about the
      19th day of December, 1992 in Valencia County, State of New
      Mexico, Daniel Wright entered the Furrs Supermarket without
      authorization or permission with intent to commit a theft therein.

ROA, vol. III, Ex. 2 at 2. After the judge advised Wright of his constitutional

rights, he entered a plea of guilty. The judge then asked “[y]ou heard the

Assistant District Attorney state the evidence they would produce in this matter

were you to go to trial. Do you dispute any portion of that evidence?” Id. at 7.

Wright answered “[n]o.” Id. The judge also asked defense counsel whether she

had “any questions or additions to the factual basis?” Id. Counsel also answered

“[n]o.” Id.

      Wright argues this exchange does not satisfy the demands of Shepard

because it does not demonstrate that Wright “necessarily” admitted facts equating

to generic burglary. Specifically, Wright contends he did not confirm or admit to

the factual basis provided by the prosecution; instead, he merely stated he did not

dispute the factual basis. Wright also argues his status as an armed career

criminal should not rest on the vagaries of an advocate’s statement of the factual

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basis. Wright’s argument, however, is not persuasive. Wright did not merely

acquiesce by silence to the factual basis provided by the prosecution; he

affirmatively adopted it by stating on the record that he did not dispute the factual

basis. See NMRA Rule 5-304(G) (“Notwithstanding the acceptance of a plea of

guilty or guilty but mentally ill, the court should not enter a judgment upon such

plea without making such inquiry as shall satisfy it that there is a factual basis for

the plea.”). Additionally, the factual basis for the plea did not rest solely on the

prosecutor’s statement. Wright was given an opportunity to either confirm or

dispute the factual basis, and he confirmed it. Defense counsel also had an

opportunity to dispute the factual basis and declined.

      After reviewing the transcript of the plea hearing, we conclude Wright

“necessarily” admitted facts necessary to establish his prior commercial burglary

conviction involved entry of a building or structure. Therefore, the district court

did not err in sentencing Wright as an armed career criminal.

IV. Conclusion

      For the foregoing reasons, Wright’s sentence is AFFIRMED.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge



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