                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 06a0144p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                          X
                                    Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                           -
                                                           -
                                                           -
                                                               No. 04-4317
             v.
                                                           ,
                                                            >
 JOHN MAHON,                                               -
                                  Defendant-Appellant. -
                                                          N
                           Appeal from the United States District Court
                          for the Northern District of Ohio at Cleveland.
                          No. 02-00500—Dan A. Polster, District Judge.
                                     Argued: February 3, 2006
                                Decided and Filed: April 21, 2006
                  Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Jacqueline A. Johnson, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio,
for Appellant. Joseph P. Schmitz, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio,
for Appellee. ON BRIEF: Jacqueline A. Johnson, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cleveland, Ohio, for Appellant. Joseph P. Schmitz, ASSISTANT UNITED STATES ATTORNEY,
Cleveland, Ohio, for Appellee.
         GILMAN, J., delivered the opinion of the court, in which MARTIN, J., joined. MERRITT,
J. (p. 7), delivered a separate concurring opinion.
                                        _________________
                                            OPINION
                                        _________________
        RONALD LEE GILMAN, Circuit Judge. John Mahon pled guilty to a two-count indictment
that charged him with being a felon in possession of a firearm and with making a false statement in
attempting to reacquire that firearm. He was sentenced under the then-mandatory United States
Sentencing Guidelines to 210 months of imprisonment, but was given an alternate sentence of 180
months in the event that the Guidelines were later determined to be unconstitutional. On appeal,
Mahon contends that the enhancement of both sentences pursuant to the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), violated his Sixth Amendment rights under United States v. Booker,
125 S. Ct. 738 (2005). Mahon specifically objects to the district court’s finding that two of his prior
convictions constitute “violent felonies,” thereby subjecting him to a mandatory minimum sentence
of 15 years under the ACCA. He also argues that the application of the ACCA in this case is

                                                  1
No. 04-4317           United States v. Mahon                                                 Page 2


fundamentally unfair. For the reasons set forth below, we AFFIRM the district court’s application
of the ACCA, but VACATE Mahon’s sentence and REMAND the case for imposition of the 180-
month alternate sentence.
                                       I. BACKGROUND
        On December 11, 2002, Mahon was indicted by a federal grand jury on charges of being a
felon in possession of a firearm and for making a false statement in an attempt to reacquire that
firearm. The charges arose after Mahon sold his Winchester 12-gauge shotgun to a pawn shop.
When he attempted to retrieve the firearm from the pawn shop, Mahon was required to complete a
disclosure form promulgated by the Bureau of Alcohol, Tobacco, and Firearms (ATF). He falsely
denied having been convicted of several felonies in Ohio in the 1980s, including burglary and
attempted burglary. Mahon was unable to retrieve his shotgun because he failed the background
check, and his former possession of the firearm and his false statement on the ATF form served as
the basis for the indictment.
        Following the return of the two-count indictment, the government notified Mahon of its
intent to seek an enhanced sentence under the ACCA. The ACCA imposes a minimum sentence of
15 years on any convicted felon found guilty of possessing a firearm who also has three previous
convictions for “a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). According to
the government, Mahon had committed four prior violent felonies in Ohio for (1) attempted
burglary in 1982, (2) possession of criminal tools in 1983, (3) breaking and entering in 1983, and
(4) breaking and entering in 1985. Mahon has also been convicted of more recent state crimes,
including driving under the influence, vandalism, and domestic-violence charges, but the
government does not contend that these subsequent crimes constitute “violent felonies” under the
ACCA. The Probation Office, in its Presentence Report, also concluded that Mahon was subject to
the ACCA and its parallel Sentencing Guidelines §4B1.4, which resulted in a sentencing range under
the Guidelines of 210 to 262 months.
        Mahon pled guilty to both counts of the indictment, but objected at sentencing to the ACCA
enhancement. He conceded that his convictions for attempted burglary and the possession of
criminal tools were properly categorized as “violent” under the ACCA, but argued that neither of
the two convictions for breaking and entering met the requirements for classification as violent
felonies under Taylor v. United States, 495 U.S. 575, 598 (1990) (holding that a “burglary” under
the ACCA must contain the elements of unlawfully entering a building or structure with the intent
to commit a crime therein). The district court disagreed with Mahon’s argument. Based on the
language in the indictments for the two disputed felonies, it found that both were considered violent
felonies under the ACCA. The district court therefore ruled that Mahon had previously been
convicted of four violent felonies, which caused him to be classified as an armed career criminal.

       On September 27, 2004, before the Supreme Court’s decision in Booker, Mahon was
sentenced to 210 months of imprisonment under the Guidelines. Because the validity of the
Guidelines was then in doubt due to the Supreme Court’s earlier decision in Blakely v. Washington,
542 U.S. 296 (2004), the district court imposed an alternate sentence 180 months—the ACCA
mandatory minimum—in the event that the Supreme Court later determined that the Guidelines were
not binding. The district court noted its “problem with mandatory minimums” and also proclaimed
Mahon’s sentence of 210 months to be “unduly harsh,” but found that it must obey its oath to uphold
the law.
       Mahon timely appealed his sentence. His primary argument is that the district court
committed plain error under Booker when it engaged in factfinding to enhance his sentence to the
15-year mandatory minimum required by the ACCA. The unconstitutional factfinding, according
No. 04-4317           United States v. Mahon                                                     Page 3


to Mahon, was the determination that two of his prior convictions were of a violent nature. Mahon
also argues that the court should reconsider its decision in United States v. Bentley, 29 F.3d 1073
(6th Cir. 1994) (holding that subsection (A) of Ohio’s burglary statute fits the generic definition of
burglary as set forth in Taylor), due to the inherent unfairness of the ACCA’s mandatory minimum
sentence. Finally, Mahon asks that his case be remanded to the district court for imposition of the
alternate sentence in the event we hold that application of the ACCA did not constitute plain error.
                                          II. ANALYSIS
A.     Standard of review
        Mahon’s challenge to his sentence—that the district court violated his Sixth Amendment
right to a trial by jury when it determined that two of his prior felony convictions were
“violent”—was not raised below. We therefore apply the “plain error” standard of review. The
plain-error inquiry is a four-step process under Rule 52(b) of the Federal Rules of Criminal
Procedure:
       First, we are to consider whether an error occurred in the district court. Absent any
       error, our inquiry is at an end. However, if an error occurred, we then consider if the
       error was plain. If it is, then we proceed to inquire whether the plain error affects
       substantial rights. Finally, even if all three factors exist, we must then consider
       whether to exercise our discretionary power under Rule 52(b), or in other words, we
       must decide whether the plain error affecting substantial rights seriously affected the
       fairness, integrity or public reputation of judicial proceedings.
United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993) (interpreting the Supreme Court’s
decision in United States v. Olano, 507 U.S. 725 (1993)); see also United States v. Jones, 108 F.3d
668, 670 (6th Cir. 1997) (en banc) (following Thomas’s division of the plain-error inquiry into “four
distinct, though interrelated, analyses”).
B.     Classification of Mahon’s prior felonies as violent
          For the first part of the plain-error analysis, we must determine if a Sixth Amendment
violation occurred when the district court determined that two of Mahon’s prior convictions
constituted “violent felonies.” Because Mahon and the government agreed that his other two
convictions for attempted burglary and the possession of criminal tools were “violent” for ACCA
purposes, the district court had to find that only one of his breaking and entering convictions was
violent for the ACCA to apply. See 18 U.S.C. § 924(e). The district court held that both of the
burglaries in question were violent, and therefore sentenced Mahon pursuant to the ACCA.
       A crime is classified as a violent felony by the ACCA if it is punishable by imprisonment
for more than one year and it
         (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.
18 U.S.C. § 924(e)(2)(B) (emphasis added). The Supreme Court has held that a “burglary” under
the ACCA should be limited to its generic meaning as defined by the term’s modern usage in the
criminal codes of most states. Taylor v. United States, 495 U.S. 575, 598 (1990). “Although the
exact formulations vary, the generic, contemporary meaning of burglary contains at least the
No. 04-4317           United States v. Mahon                                                  Page 4


following elements: an unlawful or unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime.” Id. This generic definition of burglary prevents arbitrary
discrepancies in sentences that would occur if a burglary under the ACCA were solely defined
according to state law. The ACCA would be imposed with greater frequency, for example, in states
that have a more expansive definition of the term, such as covering the breaking into cars and boats
in addition to buildings. See id. at 590-91 (discussing why a generic definition of burglary should
be used in applying the ACCA).
        Taylor also held that 18 U.S.C. § 924(e) requires the sentencing court to employ a formal,
categorical approach when determining whether a defendant’s prior conviction was for a generic
burglary. Id. at 600. The sentencing court must “look only to the fact of conviction and the
statutory definition of the prior offense” and not undertake a detailed analysis of the defendant’s
particular conduct. Id. at 602. See also United States v. Kaplansky, 42 F.3d 320, 322 (6th Cir. 1994)
(en banc) (focusing on “the statutory definition of the crime charged, rather than the actual facts of
the individual’s prior conviction”). This categorical approach avoids the “practical difficulties and
potential unfairness” that would arise if the facts of each prior conviction were examined to
determine whether it was for a generic burglary. Id. (citing Taylor, 495 U.S. at 601).
         Following the categorical approach, this court has separated Ohio’s breaking and entering
statute into the subpart that charges generic burglary as defined in Taylor—the unlawful entry into
a building with the intent to commit a crime therein—and the subpart that does not conform to this
generic definition. In United States v. Bentley, 29 F.3d 1073 (6th Cir. 1994), this court considered
the same statute under which Mahon had been previously convicted in 1983 and 1985—Ohio
Revised Code § 2911.13, subsections (A) and (B). These subsections provide as follows:
         (A) No person [,] by force, stealth, or deception, shall trespass in an
         unoccupied structure, with purpose to commit therein any theft offense . .
         . or any felony.
         (B) No person shall trespass on the land or premises of another, with
         purpose to commit a felony.
See Bentley, 29 F.3d at 1077. The Bentley court held that subsection (A) of the statute covers a
generic burglary as defined by Taylor because “it is obvious that one cannot break and enter in
violation of § 2911.13(A) without unlawfully entering or remaining in a building or structure.” Id.
Because “it is equally clear from the statute’s face that one can [violate subsection (B)] without
unlawfully entering or remaining in a building or structure,” the court further held that defendants
convicted under § 2911.13(B) have not committed a generic burglary under the ACCA and Taylor.
Id.
        In the present case, the court records do not directly establish whether Mahon was convicted
under subsection (A) or (B) of § 2911.13 for the two felonies in question. The district court
therefore examined the indictments for both breaking-and-entering convictions. In each case, the
indictments charged Mahon with violating § 2911.13, and stated that he “unlawfully and purposely
and by force, stealth or deception, trespassed in an unoccupied structure.” The district court found
that the language in the indictments, to which Mahon pled guilty, matched the language of Ohio
Revised Code § 2911.13(A). It thus classified both of the disputed prior felonies as generic
burglaries under Bentley. Because Mahon had already conceded that his other two prior felony
convictions were for violent felonies, the district court held that he was subject to being sentenced
under the ACCA.
       On appeal, Mahon argues that the district court engaged in unconstitutional factfinding as
prohibited by United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 539 U.S.
466 (2000), when it held that Mahon’s convictions for breaking and entering constituted violent
No. 04-4317           United States v. Mahon                                                    Page 5


felonies. In Booker, however, the Supreme Court reaffirmed its holding in Apprendi that “[a]ny fact
(other than a prior conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to the jury beyond a reasonable doubt.” 125 S.Ct. at 756 (emphasis added).
Mahon responds with the contention that determining the violent nature of his prior convictions is
different than simply finding the fact that they exist. He also argues that because his two prior
convictions for breaking and entering do not match the specific “burglary” language in the ACCA,
any findings of fact required to categorize his prior convictions as violent felonies violates his Sixth
Amendment rights under Booker.
        Contrary to Mahon’s contentions, however, this court has held in United States v. Barnett,
398 F.3d 516 (6th Cir. 2005), that district courts may determine both the fact and the nature of a
defendant’s prior convictions without violating Booker. Id. at 524-25 (finding no error in the district
court’s application of the ACCA) But, after Barnett was decided, the Supreme Court issued its
opinion in United States v. Shepard, 125 S. Ct. 1254 (2005), which more specifically addresses the
intersection between the ACCA sentencing enhancements and Booker. Both sides cite Shepard to
support their arguments, requiring us to consider Shepard’s application to this case.
         In Shepard, the defendant’s prior conviction was charged under a Massachusetts statute that
was broader in scope than the generic burglary standard enunciated in Taylor, 495 U.S. at 598. The
Massachusetts burglary statute includes boats and motor vehicles, in addition to buildings or
structures, as places upon which a person may not trespass. Shepard, 125 S. Ct. at 1258-60.
Because the statutory definition went beyond what Taylor characterized as a generic burglary, the
district court declined to classify Shepard’s prior conviction as a violent felony under the ACCA.
Id. at 1258. The First Circuit reversed, holding that sentencing courts may look to police reports to
determine whether there was “sufficiently reliable evidence that the government and the defendant
shared the belief that the defendant was pleading guilty to a generally violent crime.” Id. (citation
omitted). In other words, the First Circuit ruled that if police reports clearly show that a defendant’s
unlawful conduct occurred in a building and not in a motor vehicle, the prior conviction could be
deemed a generic burglary as defined by Taylor.
        The Supreme Court reversed, holding that a court “determining the character of an admitted
burglary is limited to examining the statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.” Id. at 1257. This limitation preserves the categorical approach of Taylor and ensures that
a defendant was “necessarily” convicted of a generic burglary. Id. at 1262. It also restricts the trial
court from engaging in factfinding about the particulars of a defendant’s conduct that are “too much
like the findings” deemed impermissible under Apprendi and its progeny. Id.
       In the present case, the district court relied only upon the indictments for Mahon’s prior
convictions in determining that Mahon was charged with generic burglaries. The language of the
indictments clearly matched Ohio Revised Code § 2911.13(A), which was classified as a generic
burglary statute by this court in Bentley, 29 F.3d at 1077. Mahon therefore necessarily committed
the generic offense of burglary, and the district court did not need to engage in further factfinding
concerning the two convictions. Because the district court complied with the rule enunciated in
Shepard by examining only charging documents, its determination of the nature of Mahon’s
breaking and entering convictions did not violate his Sixth Amendment rights.
         Unpublished opinions in this circuit confirm that, so long as Shepard is complied with, the
issue of whether to classify a prior conviction as violent for ACCA purposes need not be submitted
to a jury. See, e.g., United States v. Rainwater, No. 04-5999, 2005 WL 3429433, at *2 (6th Cir. Dec.
14, 2005) (upholding the district court’s determination that a defendant’s prior aggravated burglary
convictions constituted violent felonies under ACCA); United States v. Wynn, 148 F. App’x 471,
No. 04-4317           United States v. Mahon                                                    Page 6


478 (6th Cir. 2005) (unpublished) (applying Shepard’s holding that judges may look to the terms
of an indictment to classify a prior felony as violent). Because we conclude that the district court
did not commit an error in this case, analysis under the remaining prongs of the plain-error test is
unnecessary.
        Mahon’s final argument is that application of the ACCA to his case is inherently unfair
because his prior felonies were all committed over 20 years ago, and the ACCA was triggered by
his possession of a shotgun intended to be used only for hunting. In support of his argument, Mahon
notes the district court’s statement that it was uncomfortable sentencing Mahon to the 15-year
mandatory minimum under the ACCA. Like the district court, however, we are bound in this case
by Congress’s mandate. Although Mahon asks us to reconsider the holding in Bentley, 29 F.3d at
1077, which ruled that Ohio Revised Code § 2911.13(A) is a generic burglary statute, the Supreme
Court in Shepard reaffirmed the categorical approach of Bentley.
C.      The alternate sentence
         Finally, both the government and Mahon agree that this case should be remanded to the
district court for imposition of the 180-month alternate sentence in light of the court’s belief that it
was “bound by the guidelines” when it imposed the 210-month sentence. The district court made
clear that it would have imposed the lower mandatory minimum sentence under the ACCA if the
Guidelines had been merely advisory, so a remand to impose the alternate sentence is appropriate.
See United States v. Oliver, 397 F.3d 369, 381 n.3 (6th Cir. 2005) (holding that the case must be
remanded to the district court for resentencing where the district court considered the Guidelines
mandatory).
                                        III. CONCLUSION
        For all of the reasons set forth above, we AFFIRM the district court’s application of the
ACCA, but VACATE Mahon’s sentence and REMAND the case for imposition of the 180-month
alternate sentence.
No. 04-4317           United States v. Mahon                                                  Page 7


                                   ________________________
                                       CONCURRENCE
                                   ________________________
         MERRITT, Circuit Judge, concurring. The penalogical reasons Mahon should be
incarcerated for 15 years in this false statement firearms case are not apparent from the record, and
I suspect that what we are sanctioning here is a gross injustice. The prior convictions in question
are more than 20 years old. The nature of the crime involving a pawned shotgun is grossly
disproportionate to the sentence. The District Judge thought so, and I expect that almost all judges
would agree. Once again, this is what happens when Congress vests the sentencing power in one
interested party to the litigation — the prosecutor — by making a long mandatory sentence depend
not on an objective evaluation of the crime by a neutral magistrate but rather the discretionary
charging authority of the prosecutor. We do not now have before us the serious due process problem
latent in these facts, and so my responsibility as a judge requires me to concur, as I see it. Perhaps
it is an issue that defense should consider raising on remand.
