                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             August 23, 2005
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 04-41597
                           Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FRANK ALEXANDER LYNCH,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                     USDC No. 4:02-CR-54-ALL
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Frank Alexander Lynch (“Lynch”) pleaded guilty to illegally

possessing a firearm, in violation of 18 U.S.C. § 922(g)(1).           He

was sentenced to 210 months imprisonment and five years supervised

release under 18 U.S.C. § 924(e), which requires a minimum sentence

of fifteen years if the defendant has three prior convictions for

a violent felony or serious drug offense or both.   On appeal, Lynch

argues that the district court lacked sufficient evidence that his

prior convictions were for violent felonies within the meaning of


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                 No. 04-41597
                                      -2-

section 924(e).         Lynch also seeks relief based on Blakely v.

Washington1 and United States v. Booker.2           We affirm.

     Lynch first claims that the government lacked sufficient

evidence that his prior convictions for second degree burglary were

“violent felonies” within the meaning of 18 U.S.C. § 924(e).3                A

burglary conviction is a violent felony under section 924(e) if the

conviction entailed proof of unlawful or unprivileged entry into,

or remaining in, a building or structure with the intent to commit

a crime.4       If a defendant is convicted under a statute adopting

this “generic definition” of burglary, then the district court

“need find only that the state statute corresponds in substance to

the generic meaning of burglary.”5

     The record before the district court did not contain either a

copy of the state statute under which Lynch was convicted or

authenticated copies of the prior judgments against him.              The only

evidence       of   Lynch’s   prior   convictions   was   in   the   probation

officer’s presentence report (“PSR”), which gave the dates of his

arrests, the nature of the charges (“Second Degree Burglary”), the

courts in which he was tried, the docket numbers assigned in those


     1
         542 U.S. 296 (2004).
     2
         125 S. Ct. 738 (2005).
     3
      Lynch concedes that his prior convictions for arson and bank
robbery were properly considered as predicate offenses under
section 924(e). He only disputes the sufficiency of the evidence
as to the prior convictions for second degree burglary.
     4
         See Taylor v. United States, 495 U.S. 575, 599 (1990).
     5
         Id.
                           No. 04-41597
                                -3-

trial courts, and the dates the sentences were imposed.    Lynch did

not object in the district court that the PSR contained inadequate

evidence of his prior convictions.

     An appellate court may not correct an error that a defendant

failed to raise in the district court unless there is plain error.6

Under this standard of review, there must be “‘(1) error, (2) that

is plain, and (3) that affect[s] substantial rights.’”7     Even if

these conditions are met, this court may exercise its discretion to

correct the error only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.8

Lynch’s claim fails to meet this plain error test.

     First, the PSR provided sufficient indicia of reliability to

enable the district court to rely on it in making the sentencing

determination.9   The PSR noted the dates of Lynch’s arrests, the

nature of the charges (“Second Degree Burglary”), the courts in

which he was tried, the docket numbers assigned in those trial

courts, and the dates the sentences were imposed.    Lynch has never



     6
       See United States v. Cotton, 535 U.S. 625, 631 (2002);
United States v. Martinez-Cortez, 988 F.2d 1408, 1415 (5th Cir.
1993), cert. denied, 510 U.S. 1013 (1993).
     7
       Cotton, 535 U.S. at 631 (quoting Johnson v. United States,
520 U.S. 461, 467 (1997) (internal quotation marks omitted)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993))).
     8
         Id.
     9
       See United States v. Hornsby, 88 F.3d 336, 339 (5th Cir.
1996) (“A presentence report generally bears sufficient indicia of
reliability to be considered as evidence by the trial judge in
making guideline determinations, especially when there is no
evidence in rebuttal.”).
                                      No. 04-41597
                                           -4-

rebutted       the    information       in   the   PSR       regarding   his    prior

convictions,         nor   has   he    suggested      that    the   information    is

incorrect.      He did not object to the PSR when it was introduced, he

did not object to the convictions for purposes of calculating his

criminal history category, and he does not deny the existence of

the convictions in arguing that there was insufficient evidence

that the convictions were violent felonies.

     Second, there is no dispute as to the statute that applied to

Lynch’s convictions.             Lynch was convicted under the Colorado

statute regarding second degree burglary, which was sufficiently

narrow    to    be    classified      as   “generic    burglary.”10       Thus,   the

convictions constituted “violent felonies” within the meaning of 18

U.S.C. § 924(e).

     For these reasons, the record before us makes clear that Lynch

was convicted of “generic” burglaries and thus violent felonies

under 18 U.S.C. § 924(e).             Thus, even assuming the district court

erred     in   failing      to   obtain      additional      evidence    of    Lynch’s

convictions, the error did not seriously affect the fairness,




     10
        Between 1986 and 1993, the relevant years for purposes of
Lynch’s convictions, the Colorado statute defined second degree
burglary as "knowingly break[ing] an entrance into, or enter[ing],
or remain[ing] unlawfully in a building or occupied structure with
intent to commit therein a crime against a person or property."
COLO. REV. STAT. § 18-4-203(1) (1986), amended by COLO. REV. STAT.
§ 18-4-203(1) (1999).
                             No. 04-41597
                                  -5-

integrity, or public reputation of judicial proceedings.11   Lynch’s

claim fails to meet the plain error standard of review.

     Lynch also claims that his sentence was wrongfully imposed

under Blakely v. Washington12 and United States v. Booker.13   Lynch

does not argue that the district court erroneously enhanced his

sentence by finding facts not admitted by him.   Instead, he argues

that the district court erred in treating the Sentencing Guidelines

as mandatory and failing to consider other factors at sentencing.

Because Lynch did not raise this argument before the district

court, we review his claim for plain error.14 Although treating the

Guidelines as mandatory constituted error that was plain,15 Lynch

has failed to establish that the error affected his substantial

rights.     Lynch must demonstrate that the sentencing judge would

have reached a significantly different result if the sentence had

been imposed under an advisory scheme rather than a mandatory one.16

Lynch presents no evidence that the district court would have

reached a different conclusion had the Sentencing Guidelines been


     11
       See Martinez-Cortez, 988 F.2d at 1415-16 (“By definition,
no ‘manifest injustice’ occurs when a sentence imposed in error by
the district court is nonetheless one that would have been lawful
had extant evidence of the prior conviction been introduced.”).
     12
          542 U.S. 296 (2004).
     13
          125 S. Ct. 738 (2005).
     14
       United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).
     15
       United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th
Cir. 2005).
     16
          See Mares, 402 F.3d at 521.
                               No. 04-41597
                                    -6-

advisory.   The only relevant evidence in the record indicates that

Lynch was     sentenced   to   the   maximum   term   permitted   under   the

Guidelines.    Under these circumstances, Lynch cannot show that the

error, if any, affected his substantial rights.17                 Therefore,

Lynch’s claim fails to meet the plain error standard of review.

     AFFIRMED.




     17
       See id. at 522; United States v. Martinez-Lugo, 411 F.3d
597, 601 (5th Cir. 2005).
