                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               May 31, 2005
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 04-6189
 MARLON JAY BARTLETT, JR.,                              (D.C. No. 03-CR-77-L)
                                                           (W.D.Oklahoma)
          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel agrees with counsel that

oral argument would not materially assist the determination of this appeal. See Fed. R.

App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered submitted without

oral argument.

      Defendant Marlon Bartlett, Jr., pled guilty to one count of robbery in violation of



      *
        This order and judgment is not binding precedent, except under the doctrines of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.


                                            1
18 U.S.C. § 1951, and one count of being a felon in possession of a firearm in violation of

18 U.S.C. § 924(g)(1), and was sentenced to a term of imprisonment of 188 months.

Bartlett now appeals, challenging his sentence. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.

                                             I.

       On April 15, 2003, Bartlett was indicted on five criminal counts: kidnaping in

violation of 18 U.S.C. § 1201(a)(1); robbery of a fast food restaurant in violation of 18

U.S.C. § 1951; two counts of carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A); and being a felon in possession of a

firearm, in violation of 18 U.S.C. § 924(g)(1). Shortly thereafter, the government filed

written notice that it would be seeking imposition of an enhanced sentence under the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because Bartlett “ha[d] at least

three previous convictions for violent felonies.” ROA, Vol. 1, Doc. 11, at 1. In

particular, the government’s notice alleged that Bartlett had two previous convictions for

burglary in the State of Kansas, as well as a prior conviction for solicitation to commit

second degree murder in the State of Kansas. Bartlett responded by filing a motion

arguing that the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466

(2000), entitled him to a jury determination of whether his two prior burglary convictions

fell within the scope of the ACCA.

       On February 18, 2004, Bartlett pled guilty to the robbery and felon in possession of


                                             2
a firearm counts in the indictment. Shortly thereafter, the district court issued an order

concluding that all of Bartlett’s pretrial motions, including his Apprendi-based motion

regarding the ACCA, were moot. Supp. ROA, Doc. 79.

       A presentence investigation report (PSR) was subsequently prepared which

concluded that Bartlett’s prior convictions qualified him as an armed career criminal for

purposes of U.S.S.G. § 4B1.4. Bartlett objected to that portion of the PSR, arguing that

his two prior burglary convictions did not qualify as violent felonies for purposes of the

ACCA. At sentencing, the district court overruled Bartlett’s objection to the PSR. In

doing so, the district court began by examining the Kansas burglary statute under which

Bartlett was twice convicted. Because the district court concluded that this statute

“encompasse[d] conduct beyond generic burglary,” the district court then “look[ed] to the

charging documents” in each of the two prior convictions. ROA, Vol. 2, at 11. The

district court ultimately found, based on reviewing the charging documents from

Bartlett’s two Kansas burglary convictions, that in each instance he was charged with

entering a place of business without authority and with the intent to steal. Id.

Accordingly, the district court concluded that Bartlett’s two Kansas burglary convictions

qualified under the ACCA “as violent felonies and that the [proposed] enhancement

[under U.S.S.G. § 4B1.4] would be proper.” Id. at 11-12. The district court, adopting the

ACCA enhancement proposed in the PSR, sentenced Bartlett to a term of imprisonment

of 188 months, a sentence at the bottom of the calculated guideline range.


                                              3
                                              II.

       On appeal, Bartlett asserts three challenges to the sentence imposed by the district

court. As outlined in greater detail below, we find no merit to any of those challenges,

and accordingly affirm the sentence imposed by the district court.

                                              A.

       Bartlett’s first challenge to his sentence concerns the district court’s application of

the ACCA. The ACCA “mandates a minimum 15-year prison sentence for anyone

possessing a firearm after three prior convictions for serious drug offenses or violent

felonies.” Shepard v. United States, 125 S.Ct. 1254, 1257 (2005). Burglary is considered

a “violent felony” for purposes of the ACCA “only if committed in a building or enclosed

space (‘generic burglary’), not in a boat or motor vehicle.” Id.

       Bartlett argues, as he did below, that under Apprendi the question of whether his

prior burglary convictions qualify as “violent felonies” for purposes of the ACCA is a fact

that must be proven to a jury under the “beyond a reasonable doubt” standard. We

recently rejected this identical argument in United States v. Moore, 401 F.3d 1220, 1224-

(10th Cir. 2005). In doing so, we concluded that “determining whether a given felony

constitutes a ‘violent felony’ is a question of law and not fact,” and thus “the Sixth

Amendment does not require that determination to be made by a jury.” Id. at 1225. We

further noted that even where, as here, a district court concludes the defendant was

convicted under a “nongeneric” burglary statute, the Sixth Amendment is not implicated


                                              4
so long as the district court “stay[s] within the bounds delineated by the [Supreme] Court

in” Shepard. Id. at 1225, n.2. In other words, the Sixth Amendment is not implicated so

long as a district court determining the character of a prior burglary conviction limits

itself “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.” Shepard, 125 S.Ct. at 1257. Because the record on appeal in this

case firmly establishes that the district court looked only to the charging documents from

Bartlett’s two Kansas burglary convictions, we readily conclude that Bartlett’s Sixth

Amendment rights were not implicated.

                                              B.

       In his second issue on appeal, Bartlett contends the district court erred in

characterizing his prior Kansas burglary convictions as “violent felonies” for purposes of

the ACCA. Because, as noted, that characterization is a legal determination, it is subject

to de novo review by this court. See Moore, 401 F.3d at 1224-25; United States v.

Haslip, 160 F.3d 649, 656 (10th Cir. 1998).

       Consistent with the Supreme Court’s decision in Taylor, we first look to the

Kansas burglary statute that Bartlett was charged with and convicted of violating. 495

U.S. at 602. If the definition of burglary contained in that statute substantially

corresponds to “generic” burglary, then we will affirm the § 924(e) sentence enhancement

without further inquiry. If, however, the statute encompasses conduct beyond “generic”


                                              5
burglary, we must look to the various documents outlined in Shepard to determine

whether the jury found, or the defendant admitted, conduct conforming to the definition

of “generic” burglary. See Haslip, 160 F.3d at 656.

       According to the record, Bartlett was twice convicted of burglary in the State of

Kansas, first in 1984 and subsequently in 1987. The Kansas statute Bartlett was

convicted of violating, Kan. Stat. Ann. § 21-3715, clearly encompasses conduct going

beyond “generic” burglary as defined by the Supreme Court. In particular, the Kansas

statute includes not only buildings, but also “motor vehicle[s], aircraft, watercraft,

railroad car[s] [and] other means of conveyance of persons or property.” Kan. Stat. Ann.

§ 21-3715(c). Thus, Taylor requires us to look beyond the statute to determine whether

the § 924(e) enhancement was proper.

       Bartlett’s 1984 burglary conviction arose out of a complaint filed in the District

Court of Geary County, Kansas, alleging, in pertinent part, “that on or about the 7th day

of November, 1983,” Bartlett “unlawfully, feloniously, willfully, knowingly and without

authority enter[ed] into a remain[ed] within a business, to-wit: Oriental Imports, with the

intent to commit a theft therein, contrary to K.S.A. 21-3715.” Supp. ROA, Doc. 90,

Attach. B, at 1. A May 10, 1984, journal entry issued by the District Court of Geary

County indicates that Bartlett was found guilty of this charge. In light of these

documents, we conclude that Bartlett’s 1984 conviction for burglary satisfies the Supreme

Court’s definition of “generic” burglary, and in turn constitutes a “violent felony” under


                                              6
the ACCA.

       We reach the same conclusion with respect to Bartlett’s 1987 burglary conviction.

That conviction arose out of a complaint filed in the District Court of Geary County,

Kansas, alleging, in pertinent part, “that on or about the 4th day of January, 1987,”

Bartlett “unlawfully, feloniously, willfully, knowingly and without authority enter[ed]

into and remain[ed] within a business, to-wit: the Alibi Tavern, with the intent to commit

a theft therein, contrary to K.S.A. 21-3715.” Supp. ROA, Doc. 90, Attach. C, at 1. A

journal entry issued by the District Court of Geary County indicates that Bartlett pled

guilty to that charge on March 4, 1987. In light of the information in these documents, it

is apparent that Bartlett’s 1987 conviction for burglary constitutes a “violent felony” for

purposes of the ACCA.

                                             C.

       In his final argument on appeal, Bartlett contends, citing Blakely v. Washington,

124 S.Ct. 2531 (2004), that the district court violated his Sixth Amendment rights by

enhancing his sentence on the basis of its findings that he possessed and used a firearm

during the robbery to which he pled guilty. Because Bartlett did not raise this issue

below, “we review the district court’s sentencing decision for plain error.”2 United States

v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005). To establish plain error, Bartlett “must


       2
         As previously noted, Bartlett asserted an Apprendi-based challenge to the district
court’s application of the ACCA. He did not, however, assert an Apprendi-based
challenge to the other sentencing enhancements imposed by the district court.

                                              7
demonstrate that the district court (1) committed error, (2) that the error was plain, and (3)

that the plain error affected his substantial rights.” Id. “If all these conditions are met, a

court reviewing the error may exercise discretion to correct it if the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id.

       In Blakely, which was issued shortly after Bartlett filed his notice of appeal, the

Supreme Court held that in a state prosecution the Sixth Amendment requires that the

maximum permissible sentence in a particular case must be determined solely by

reference to “facts reflected in the jury verdict or admitted by the defendant.” 124 S.Ct. at

2537. In United States v. Booker, 125 S.Ct. 738 (2005), which was issued during the

pendency of this appeal, the “Court extended the logic of Blakely to the Federal

Sentencing Guidelines, holding that the Sixth Amendment requires that ‘[a]ny fact (other

than a prior conviction) . . . 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 a jury beyond a reasonable doubt.’” Dazey, 403 F.3d at

1174 (quoting Booker, 125 S.Ct. at 756).

       In light of Blakely and Booker, we conclude that the district court erred in

sentencing Bartlett. The district court, applying the-then mandatory Guidelines,

concluded that Bartlett was an armed career criminal under the ACCA and was thus

subject to having his offense level calculated pursuant to U.S.S.G. § 4B1.4. Under §

4B1.4, an armed career criminal is subject, at a minimum, to an offense level of 33. In


                                               8
this case, however, the district court concluded Bartlett was subject to an offense level of

34 pursuant to § 4B1.4(b)(3)(A) based on its finding that he used a firearm in connection

with the robbery (i.e., by pointing it at a restaurant employee during the robbery).3 It is

now clear, given the Supreme Court’s holding in Booker, that “[t]his sentencing

methodology violated [Bartlett’s] Sixth Amendment rights.” Dazey, 403 F.3d at 1174.

       Although the district court’s constitutional error was not “plain” at the time of

Bartlett’s sentencing, it is the law at the time of the appellate decision that is relevant

here. See Johnson v. United States, 520 U.S. 461, 468 (1997) (holding that “where the

law at the time of trial was settled and clearly contrary to the law at the time of appeal--it

is enough that the error be ‘plain’ at the time of appellate consideration.”). Thus, given

the Supreme Court’s decision in Booker, the error is now plain. See Dazey, 403 F.3d at

1174-75.

       That leads us to the third prong of the plain error test and the rationale set forth in

Dazey. In order to satisfy the third prong, Bartlett must demonstrate that the district

court’s constitutional error affected his substantial rights. “[T]here are at least two ways a

defendant can make this showing.” Dazey, 403 F.3d at 1175. “First, if the defendant

shows a reasonable probability that a jury applying a reasonable doubt standard would not


       3
         The PSR, in its calculations, also discussed two additional enhancements that
were based upon Bartlett having used and possessed a firearm during the robbery. Those
enhancements did not ultimately come into play at the time of sentencing, however,
because of Bartlett’s status as an armed career criminal and the corresponding obligation
of the district court under the Guidelines to impose a minimum offense level of 33.

                                               9
have found by a preponderance of the evidence, then the defendant successfully

demonstrates that the error below affected his substantial rights.” Id. “Second, a

defendant may show that the district court’s error affected his substantial rights by

demonstrating a reasonable probability that, under the specific facts of his case as

analyzed under the sentencing factors of 18 U.S.C. § 3553(a), the district court would

reasonably impose a sentence outside the Guidelines range.” Id.

       Notably, Bartlett has made no attempt to make either of these showings or any

other. Indeed, Bartlett has not even acknowledged that his Sixth Amendment claim is

subject to plain error review. Moreover, our own review of the record fails to persuade us

(a) that there was a lack of factual support for the district court’s finding that Bartlett used

a firearm during the course of the robbery, or (b) that the district court would have

imposed a sentence below the Guideline range. Thus, we conclude Bartlett has failed to

demonstrate that the district court’s error affected his substantial rights.4

       The judgment of the district court is AFFIRMED.

                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Circuit Judge


       4
        We note that Bartlett’s prior convictions subjected him to the provisions of the
ACCA and its mandatory minimum sentence of fifteen years. See 18 U.S.C. § 924(e)(1).
Thus, even if the district court had expressed a desire to impose a sentence below the
Guideline range (of 188-235 months), it could not, in any event, have imposed a sentence
below 180 months.

                                              10
