05-6048-cr
USA v. Lynch
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                   _____________________

                                       August Term, 2006
(Argued: August 9, 2007                                              Decided: February 27, 2008)
                                     Docket No. 05-6048-cr

                                   _____________________

                               UNITED STATES OF AMERICA,
                                                     Appellee,

                                               -v.-

                                        DAVID LYNCH,
                                                         Defendant-Appellant.
                                  _______________________

BEFORE:               CALABRESI, RAGGI, HALL, Circuit Judges.

                                  _______________________

       Defendant-appellant David Lynch appeals from the October 27, 2005 decision of the

United States District Court for the Southern District of New York (Berman, J.) sentencing

defendant to fifteen years’ imprisonment pursuant to the Armed Career Criminal Act, 18 U.S.C.

§ 924(e) (“ACCA”), after defendant pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g). We agree with the district court that both defendant’s 1989 state

conviction for criminal possession of a weapon and his 1985 state conviction for attempted

burglary were for “violent felonies” under the ACCA, and we, therefore, conclude that the

district court properly sentenced him as an Armed Career Criminal.

       AFFIRMED.


                                                1
                                  _________________________

               DENIS PATRICK KELLEHER, Kelleher & Dunne LLP, New York, NY, for
               Defendant-Appellant.

               CHRISTOPHER L. LAVIGNE, Assistant United States Attorney for the Southern
               District of New York (Michael J. Garcia, United States Attorney, John M.
               Hillebrecht, Assistant United States Attorney, on the brief), New York, NY, for
               Appellee.
                                  ________________________


HALL, Circuit Judge:

       Defendant-appellant David Lynch appeals from the portion of a judgment of conviction

in the United States District Court for the Southern District of New York (Richard M. Berman,

Judge) that sentenced him to the statutory minimum of fifteen years’ imprisonment under the

Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), based on three prior violent felony

convictions. On appeal, Lynch argues that two of the prior offenses, criminal possession of a

weapon and attempted burglary, are not “violent felonies” within the ambit of the ACCA. We

agree with the district court that both crimes are violent felonies because they “involve[] conduct

that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(ii). It was

not error, therefore, to sentence Lynch pursuant to the ACCA. We affirm.

                                           Background

       In May 2003 a police officer saw a vehicle run a red light. David Lynch was a passenger

in the back seat of the vehicle. When the police officer stopped the vehicle, he saw Lynch

moving his hands around in the back seat. Lynch refused to show his hands, and after an

ensuing struggle with the police officers, Lynch was handcuffed and subdued. A pat down of

Lynch revealed a loaded firearm. Lynch was already a convicted felon and thus was indicted as


                                                  2
a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The government asserted that

Lynch was subject to a fifteen-year statutory mandatory minimum sentence under the ACCA

because he previously had been convicted of three violent felonies and was currently charged

with violating § 922(g).1 Lynch’s prior New York state-court felony convictions were for: (1)

criminal possession of a weapon in the second degree in 1989; (2) attempted robbery in the

second degree in 1986; and (3) attempted burglary in the third degree in 1985.

       In March 2005, Lynch appeared before Judge Berman to plead guilty to the indictment.

He did not concede, however, that he was subject to the statutory mandatory minimum sentence

under the ACCA; he noted that he intended to press the issue before the district court. Later,

Lynch argued that his convictions for attempted burglary and criminal possession of a weapon

were not for violent felonies as defined by the ACCA.2

       The 1985 Attempted Burglary Conviction

       In 1985, Lynch pled guilty to attempted burglary in the third degree in violation of New

York Penal Law § 140.20 in Nassau County Superior Court. Section 140.20 provides that “[a]

person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully

in a building with intent to commit a crime therein.” A related section of the Penal Law defines




       1
           The ACCA, 18 U.S.C. § 924(e)(1), provides:

       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 922(g)(1) of this title for a
       violent felony or a serious drug offense, or both, committed on occasions different
       from one another, such person shall be fined under this title and imprisoned not
       less than fifteen years . . . .
       2
         Lynch concedes that his 1986 conviction for attempted robbery in the second degree is
for a violent felony.

                                                 3
“building” as “any structure, vehicle or watercraft used for overnight lodging of persons, or used

by persons for carrying on business therein, or used as an elementary or secondary school, or an

inclosed motor truck, or an inclosed motor truck trailer.” N.Y. Penal Law § 140.00(2). The

criminal information charged Lynch with burglary in the third degree, namely, that Lynch had

“knowingly entered and remained unlawfully in a building known as a clothing store located at

110 Main Street, Hempstead, New York, with intent to commit a crime therein.” (Nassau

County Super. Ct. Information, Nov. 20, 1984.) Lynch pled to the lesser offense of attempted

burglary in the third degree, for which there was no separate charging document. The federal

Presentence Investigation Report (“federal PSR”) prepared in connection with the sentencing in

this case incorporated facts from the Nassau County presentence report (“state PSR”) authored at

the time of Lynch’s guilty plea to the attempted burglary. The federal PSR stated that:

“[a]ccording [to] a copy of a presentence report prepared by the Nassau County Probation

Department on August 29, 1984, Lynch and three other individuals burglarized a Hempstead

store and stole a quantity of clothing.” (Federal PSR ¶ 38.) Although Lynch and the

government tried to obtain copies of the transcripts of the plea proceedings related to the

attempted burglary conviction, they were both told that those transcripts no longer existed.

       The 1989 Criminal Possession of a Weapon Conviction

       In 1989, Lynch pled guilty to criminal possession of a weapon in the second degree in

violation of New York Penal Law § 265.03 in Nassau County court. Section 265.03, as it read in

1989, provided that “[a] person is guilty of criminal possession of a weapon in the second degree

when he possesses a machine-gun or loaded firearm with intent to use the same unlawfully

against another.” According to both the indictment and the plea allocution, Lynch possessed a


                                                 4
loaded firearm, specifically a .32 caliber semi-automatic pistol, which he used to shoot Neil

Williams. Apparently Lynch and his girlfriend were in a cab together, and when Lynch exited

the cab, he shot Williams. Lynch explained at his plea allocution:

       I was coming from my house, and me and Neil Williams, he had drawn a pistol at
       me and shot me in my face, and I had shot him back only to protect my own life.
       I was scared at the time. I didn’t want to shoot him or anything like that. It was
       out of a thing of fear. I was trying to protect my own self.

(Plea Hr’g Tr. Oct. 25, 1989 at 31.) The Nassau County court accepted Lynch’s guilty plea.

       District Court Sentencing

       Following the plea proceedings for the current offense, Lynch submitted a letter to the

district court in which he argued that his prior crimes of attempted burglary and criminal

possession of a weapon were not violent felonies. As to the attempted burglary, Lynch argued

that Congress did not intend to include attempted burglary in the definition of violent felony and,

further, that there were insufficient facts for the court to conclude that he had attempted to

commit a generic burglary.3 The government, in its letter, responded by pointing out that Lynch

had pled guilty to an information that charged him with a generic burglary because it was the

burglary of a store. The government further argued that attempted burglary under this particular

New York statute had been held to constitute a violent felony in United States v. Andrello, 9 F.3d

247, 249 (2d Cir. 1993) (per curiam).

       As to his conviction for criminal possession of a weapon, Lynch argued that he never

admitted to having the unlawful intent to use the weapon—an element he asserted was a


       3
         The Supreme Court has held that only generic burglaries—those that involve entering
into a building or structure—qualify as violent felonies under the ACCA’s provision specifying
burglary as one of the enumerated crimes in its definition of violent felony. See Taylor v. United
States, 495 U.S. 575, 599 (1990).

                                                  5
prerequisite to the crime being classified as a violent felony based on this Court’s decision in

United States v. Danielson, 199 F.3d 666 (2d Cir. 1999) (per curiam). The government

countered that having pled guilty to the particular weapons charge, Lynch necessarily admitted

the elements of the offense, which included both possession of the weapon and intent to use it

unlawfully.

       At sentencing, the district court agreed with the government’s arguments and found that

all three of Lynch’s prior crimes were violent felonies. With respect to Lynch’s attempted

burglary in the third degree, the district court found that it was a violent felony based upon

Andrello, and because a copy of the state court information made it clear that Lynch pled guilty

to an attempted generic burglary of a clothing store. With respect to Lynch’s criminal

possession of a weapon in the second degree, the district court agreed with the government that

the indictment and plea allocution showed that Lynch admitted to possessing the weapon with

unlawful intent to use it, specifically rejecting the argument that, at his plea proceedings in state

court, Lynch admitted only to possession and not to having the requisite criminal intent. Citing

Danielson, 199 F.3d 666, the district court concluded that Lynch’s criminal possession of a

weapon was a violent felony.4 The district court sentenced Lynch to fifteen years’

imprisonment, the mandatory minimum under the ACCA, followed by five years’ supervised

release and the necessary special assessment.

       Lynch appeals his sentence.




       4
        The district court stated that the criminal possession conviction “qualifies as a violent
felony as defendant was charged with and admitted possessing a firearm and using it unlawfully.
The cite is United States v. Danielson . . . .” (Sentencing Tr. Oct. 22, 2005, at 6.)

                                                  6
                                            Discussion

       I. Standard of Review

       We review de novo the district court’s determination of whether a prior offense is a

“violent felony” under the ACCA. United States v. King, 325 F.3d 110, 113 (2d Cir. 2003).

       II. Applicable Law

       A defendant convicted of violating 18 U.S.C. § 922(g) who has three previous

convictions for violent felonies or serious drug offenses is subject to a mandatory minimum

sentence of fifteen years’ imprisonment. 18 U.S.C. § 924(c). In pertinent part, the term “violent

felony” means “any crime punishable by imprisonment for a term exceeding one year . . . that . .

. (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct

that presents serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii)

(emphasis added). For Lynch’s two prior offenses, the attempted burglary and the criminal

possession of a weapon, to constitute violent felonies under the ACCA, they would have to fall

under the residual, or “otherwise,” clause in § 924(e)(2)(B)(ii), because neither would qualify as

one of the four enumerated offenses.

       To determine whether a prior offense is a “violent felony” for purposes of the ACCA, we

use a “categorical approach.” United States v. Rosa, 507 F.3d 142, 151 (2d Cir. 2007) (citing

Taylor v. United States, 495 U.S. 575 (1990)). Taylor instructs that the sentencing court must

“look only to the fact of conviction and the statutory definition of the prior offense.” Taylor, 495

U.S. at 602. In a “narrow range of cases,” the sentencing court may “go beyond the mere fact of

conviction” where the statute of conviction covers both conduct that would and conduct that

would not constitute a violent felony. Id. In such cases, the sentencing court may also consult


                                                  7
the charging documents and jury instructions to determine whether the conviction was for

conduct that falls under the definition of violent felony. Id.

       III. Attempted Burglary Is a Violent Felony

       Lynch argues, as he did below, that his 1985 conviction for attempted burglary in the

third degree is not for a violent felony. His argument fails because this Court’s decision in

United States v. Andrello, 9 F.3d 247 (2d Cir. 1993) (per curiam), and the Supreme Court’s

recent decision in James v. United States, 127 S. Ct. 1586 (2007), compel the conclusion that the

attempted burglary of which Lynch was convicted is a violent felony under the ACCA.

       In Andrello, this Court held that the crime of attempted burglary in the third degree under

New York law, the same crime at issue here, constitutes a “violent felony” because it falls under

the ACCA’s residual provision. 9 F.3d at 249-50. There, we looked to New York law and found

that in order for a defendant to be convicted of attempted burglary, the defendant must have

carried the project forward “within dangerous proximity to the criminal end to be attained,” and

that “mere preparation” was not enough. Id. at 249 (quoting People v. Bracey, 360 N.E.2d 1094,

1097 (N.Y. 1977)) (internal quotation marks omitted). Specifically, this Court explained that

       since burglary itself is a crime that inherently involves a risk of personal injury,
       the crime of attempted burglary under New York law, which requires proof of
       conduct that would present a serious potential risk of attainment, must be
       considered a crime that “involves conduct that presents a serious potential risk of
       physical injury to another.”

Id. at 249-50; cf. United States v. Brown, ___ F.3d ___, ___, 2008 WL 239055, at *9-11 (2d Cir.

Jan. 30, 2008) (applying Andrello to hold that third degree burglary under New York law is a

“crime of violence” under U.S.S.G. § 4B1.2(a)(2)). We added: “The fact that the underlying

substantive offense may not be accomplished is not pertinent.” Id. at 250.


                                                  8
       The Supreme Court’s recent decision in James, holding that attempted burglary under

Florida law is a “violent felony” under the ACCA, 127 S. Ct. at 1590, confirms the soundness of

our reasoning in Andrello.5 The Court concluded that attempted burglary fell under the residual

provision of the ACCA, id. at 1597-98, as a crime that “otherwise involves conduct that presents

a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii). It explained

that attempted burglary, as defined by Florida law,6 is an offense that “involves conduct that

presents a serious potential risk of physical injury to another,” because Florida law requires an

“overt act” for attempted burglary and because such an attempt poses the same kind of risks as a

completed burglary. Id. (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).7 The Court commented that

“while the statutory language [defining attempt] is broad, the Florida Supreme Court has

considerably narrowed its application in the context of attempted burglary, requiring an ‘overt

act directed toward entering or remaining in a structure or conveyance.’” Id. at 1594 (quoting

Jones v. State, 608 So. 2d 797, 799 (Fla. 1992)). Such an “overt act” toward committing a

burglary, said the Court, would pose “the same kind of risk” as, or an even greater risk than, that

posed by a completed burglary because the “main risk” arises “from the possibility of a face-to-



       5
        In James, the Supreme Court cited Andrello, among other circuit decisions, noting that
“every Court of Appeals that has construed an attempted burglary law similar in scope to
Florida’s has held that the offense qualifies as a ‘violent felony’ under [the ACCA’s] residual
provision.” James, 127 S. Ct. at 1595 & n.3.
       6
         Florida law defines burglary as “entering or remaining in a structure or conveyance with
the intent to commit an offense therein,” Fla. Stat. § 810.02(1), and defines attempt as “any act
toward the commission of such offense,” Fla. Stat. § 777.04(1).
       7
         The Supreme Court distinguished Court of Appeals’ decisions holding to the contrary as
“involv[ing] attempt laws that could be satisfied by preparatory conduct that does not pose the
same risk of violent confrontation and physical harm posed by an attempt to enter a structure
illegally.” James, 127 S. Ct. at 1595-96.

                                                 9
face confrontation between the burglar and a third party—whether an occupant, a police officer,

or a bystander—who comes to investigate.” Id. at 1594-95. The Court explained that while

“many completed burglaries do not involve such confrontations,” “attempted burglaries often

do” because “it is often just such outside intervention that prevents the attempt from ripening

into completion.” Id. at 1595.

       The reasoning of both Andrello and James applies equally in this case and compels the

conclusion that Lynch’s attempted burglary is a violent felony for purposes of the ACCA. Under

New York law, “[a] person is guilty of burglary in the third degree when he knowingly enters or

remains unlawfully in a building with intent to commit a crime therein,” N.Y. Penal Law

§ 140.20, and is guilty of attempt when “he engages in conduct which tends to effect the

commission of such crime,” id. § 110.00. Presaging the Supreme Court’s analysis of comparable

Florida law in James, we said in Andrello that the New York courts have narrowed the definition

of attempt to require proof of conduct that “carr[ies] the project to within dangerous proximity of

its accomplishment.” Andrello, 9 F.3d at 249. We went on to conclude that because burglary

“inherently involves a risk of personal injury” and because attempted burglary requires proof

that the defendant could potentially attain the fruition of such inherently risky behavior,

attempted burglary is indeed a crime that “‘involves conduct that presents a serious potential risk

of physical injury to another.’” Id. at 249-50 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Where a

defendant like Lynch has come within “dangerous proximity” to having completed the burglary,

such conduct certainly presents the “possibility of a face-to-face confrontation between the

burglar and a third party . . . who comes to investigate.” James, 127 S. Ct. at 1594. Following

James, therefore, we reaffirm our holding in Andrello that attempted burglary in the third degree


                                                 10
under New York law constitutes a “violent felony” cognizable under the ACCA.

       Lynch asserts two other arguments, both of which lack merit. He first argues, relying on

Shepard v. United States, 544 U.S. 13, 17 (2005), that because New York’s burglary statute is

non-generic and because he never admitted to any facts in his plea that would support a finding

that he attempted to commit a generic burglary, the ACCA cannot apply.8 This argument misses

the mark. While a conviction must qualify as a generic burglary to fit within the specific

statutory reference to “burglary” in § 924(e)(2)(B)(ii) (identifying as a violent felony any crime

that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical injury to another”), a non-generic burglary may

nevertheless qualify as a violent felony under the statute’s residual provision. This conclusion

derives from the Supreme Court’s decision in James, which rejected James’s argument that the

Florida attempted burglary offense could not be a violent felony because the burglary statute is

non-generic. James, 127 S. Ct. at 1599. It explained that while Florida’s burglary statute is not

limited to generic burglary,

       that conclusion is not dispositive, because the Government does not argue that
       James’ conviction for attempted burglary constitutes “burglary” under
       § 924(e)(2)(B)(ii). Rather, it relies on the residual provision of that clause,
       which—as the Court has recognized—can cover conduct that is outside the strict
       definition of, but nevertheless similar to, generic burglary.


       8
          As we have already observed, see supra n.3, in Taylor, the Supreme Court drew a
distinction between statutes that rely on the generic definition of burglary, i.e., “unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to commit a
crime,” Taylor, 495 U.S. at 598, and statutes that “define burglary more broadly, e.g., by
eliminating the requirement that the entry be unlawful, or by including places, such as
automobiles and vending machines, other than buildings,” id. at 599. New York Penal Law
§ 140.20 falls into the latter category in light of the state’s expansive definition of “building” to
include “any structure, vehicle or watercraft used for overnight lodging of persons . . . or an
inclosed motor truck, or an inclosed motor truck trailer.” N.Y. Penal Law § 140.00(2).

                                                  11
Id. at 1599-600 (citing Taylor, 495 U.S. at 600 n.9). Just as we need not address whether

Lynch’s conviction was for an attempt to commit a generic burglary, we need not consider

Lynch’s argument that the district court considered impermissible evidence in making that

determination.9

       Lynch’s second argument, that Congress did not intend to include attempted burglary as a

violent felony under the ACCA, is also unavailing. The Supreme Court in James specifically

rejected James’s argument that the residual provision should be read to extend to completed

offenses only, reasoning that “nothing in the plain language of [the residual clause] . . . prohibits

attempt offenses from qualifying as ACCA predicates when they involve conduct that presents a

serious potential risk of physical injury to another.” Id. at 1591-92. The Court also rejected

James’s argument that the legislative history of the ACCA indicated that Congress did not intend

to include attempt offenses in the residual provision. Id. at 1593. Instead it concluded that


       9
          Lynch asserted that the district court’s consultation of the facts underlying his attempted
burglary conviction, as stated in his federal PSR, violated Taylor, 495 U.S. 575, and Shepard v.
United States, 544 U.S. 13 (2005). Shepard instructed that in cases where a prior conviction was
based on a guilty plea, a sentencing court may consult the “written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented”
to determine whether that prior offense is a violent felony. 544 U.S. at 16. Here, Lynch’s
federal PSR contained facts about his attempted burglary conviction that were derived from the
state PSR prepared at the time of his guilty plea to that offense. While our disposition of the
issue involving attempted burglary does not require us to decide whether the district court may
consider such facts, we do note that this Court’s jurisprudence in this area is not particularly
clear. See United States v. Brown, 52 F.3d 415, 425 (2d Cir. 1995) (holding district court’s use
of state PSR from different prior conviction permissible to establish fact of prior conviction
considered for ACCA sentence enhancement); United States v. Palmer, 68 F.3d 52, 59 (2d Cir.
1995) (concluding district court may not use facts alleged in federal PSR prepared for current
conviction to determine whether prior conviction was “crime of violence” under the Guidelines);
United States v. Pearson, 77 F.3d 675, 677 (2d Cir. 1996) (holding remand not required where
district court relied on federal PSR that incorporated facts from state PSR, not objected to by
defendant, to determine prior conviction was “controlled substance offense” for purposes of
career offender sentence enhancement under Guidelines).

                                                 12
“neither the statutory text nor the legislative history discloses any congressional intent to

categorically exclude attempt offenses from the scope of § 924(e)(2)(B)(ii)’s residual provision.”

Id. We need go no further.

       IV. Criminal Possession of a Weapon Is a Violent Felony

       Lynch also argues that his 1989 conviction for criminal possession of a weapon in the

second degree is not a violent felony under the ACCA. Lynch asserts that since he never

admitted to having “intent to use the weapon unlawfully against another,” his conviction was

based on “mere possession” and cannot constitute a violent felony. Lynch, however, pled guilty

to the charge at issue in state court. Under New York law, “[a] person is guilty of criminal

possession of a weapon in the second degree when he possesses a machine-gun or loaded firearm

with intent to use the same unlawfully against another.” N.Y. Penal Law § 265.03 (McKinney

1989).10 Thus, the “essential elements” of Lynch’s crime of conviction are “knowing and

unlawful possession” of a loaded weapon and “the intent to use it unlawfully against another.”

People v. Jamerson, 472 N.Y.S.2d 148, 151 (N.Y. App. Div. 1984).

       The question before this Court, then, is whether a conviction under § 265.03 based on a

guilty plea constitutes a violent felony under the ACCA. Other courts have squarely held that

similar offenses for unlawful possession of a weapon constitute violent felonies because they fall

under the ACCA’s residual provision. See, e.g., United States v. Mathews, 453 F.3d 830, 837

(7th Cir. 2006) (holding that possession of a weapon by a felon “with intent to use the same

unlawfully against another” is categorically a violent felony under the residual clause of the


       10
         Although New York Penal Law § 265.03 was amended in 1998 to, inter alia, include
“disguised gun” as another type of weapon to which the statute applies, the material elements of
the crime have remained the same. See N.Y. Penal Law § 265.03 (McKinney 2000).

                                                 13
ACCA because it “involves a very significant probability of physical injury to a victim”); United

States v. Childs, 403 F.3d 970, 971 (8th Cir. 2005) (holding that possession of a short-barreled

shotgun is a violent felony under the ACCA’s residual clause because “sawed-off shotguns are

inherently dangerous and lack usefulness except for violent and criminal purposes” (internal

quotation marks omitted)). This Court, in United States v. Danielson, 199 F.3d 666, 672 (2d Cir.

1999) (per curiam), considered whether a conviction under § 265.03 based on a jury verdict

would constitute a violent felony. We observed, without holding, that “possession of a ‘loaded

firearm with intent to use it unlawfully against another’ would be a violent felony under the

ACCA in that the offense ‘involves conduct that presents a serious potential risk of physical

injury to another.’” Id. at 671-72 (quoting N.Y. Penal Law § 265.03 and 18 U.S.C.

§ 924(e)(2)(B)(ii)).

       Danielson went on to address a concern unique to a jury trial, where the jury is required

to find the element of intent.11 We do not have to engage in that additional analysis, however,

because Lynch unequivocally pled guilty to the crime, and by doing so he necessarily admitted

his guilt with respect to both elements of the statutory offense: possession of the loaded weapon


       11
          Under New York law, there is a rebuttable presumption that possession of a weapon is
evidence of intent to use the weapon unlawfully against another. See N.Y. Penal Law
§ 265.15(4). Because Danielson was convicted by a jury, this Court thought it was necessary to
look beyond the statutory definition of the crime and consider the jury charge to ensure that the
jury was required to find the element of intent based on more than just the statutory presumption.
Danielson, 199 F.3d at 672. By examining the jury charge, as is permissible under Taylor, 495
U.S. 575, this Court was reassured that Danielson had been convicted of more than “mere
possession,” because the jury had been instructed that it had to determine whether it was
Danielson’s “conscious aim or objective” to use the loaded firearm against another. Danielson,
199 F.3d at 673. Because in convicting him for the weapons offense the state jury was required
to find, in fact, that Danielson had the requisite intent, this Court concluded that Danielson’s
prior offense of criminal possession of a weapon in the second degree was indeed a violent
felony under the residual provision of the ACCA.

                                                14
and intent to use it unlawfully against another. See McCarthy v. United States, 394 U.S. 459,

466 (1969) (“[A] guilty plea is an admission of all the elements of a formal criminal charge . . .

.”); see also United States v. Broce, 488 U.S. 563, 570 (1989) (“A guilty plea is more than a

confession which admits that the accused did various acts. It is an admission that he committed

the crime charged against him.” (citations and internal quotation marks omitted)).12 It is beyond

question that possessing a weapon with intent to use it unlawfully against another involves

conduct “that presents a serious potential risk of physical injury to another.” 18 U.S.C. §

924(e)(2)(B)(ii). For these reasons, we hold that Lynch’s conviction for criminal possession of a

weapon in the second degree in violation of New York law is for a violent felony under the

ACCA.

                                            Conclusion

       We agree with the district court’s determination that both prior offenses at issue,

attempted burglary and criminal possession of a weapon, are violent felonies. It was proper for

the district court to have sentenced Lynch as an Armed Career Criminal. We affirm.




       12
          Lynch’s statements at the plea hearing that he shot at Neil Williams “to protect [his]
life” and that he “didn’t want to shoot him,” (Plea Hr’g Tr. Oct. 25, 1989 at 31), cannot undo the
fact that his guilty plea to the criminal possession charge necessarily admits that he had intent to
use the weapon unlawfully against another. See People v. Pons, 501 N.E.2d 11, 13 (N.Y. 1986)
(concluding that justification is not a defense to intent under § 265.03). By proffering these
statements, Lynch appears to contest the validity of his state guilty plea. That issue, however, is
not properly before us, and we do not reach it.

                                                 15
