                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               October 11, 2007
                              No. 07-11120                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket No. 05-00357-CR-J-32-TEM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ANDRE LEANDER JACKSON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (October 11, 2007)

Before BIRCH, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Andre Leander Jackson appeals the 180-month sentence he received after he
was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). Because the government produced sufficient evidence to show that

Jackson’s prior burglary conviction qualified as a violent felony under the Armed

Career Criminal Act (“ACCA”), Jackson’s argument to the contrary fails. Jackson

has also raised two constitutional arguments for the first time on appeal, but those

arguments fail as well. Accordingly, we affirm.

                                 I. BACKGROUND

      In October 2005, Jackson was arrested and pleaded guilty to the charge of

felon in possession of a firearm. Prior to this incident, Jackson had been convicted

of eight felonies. Jackson concedes that two of the felonies constituted violent

felonies under the ACCA. A third felony, burglary, is at issue in this case. The

information for that burglary charged that on November 14, 1984, Jackson “did

unlawfully enter or remain in a structure, to-wit: a building . . . with the intent to

commit an offense therein, to-wit: a theft, contrary to the provisions of Section

810.02.” Jackson pleaded guilty on February 25, 1985. The Florida trial court’s

initial judgment indicated that Jackson pleaded guilty to “Burglary, F-3.” The final

judgment dated March 18, 1986, however, shows that Jackson pleaded guilty to

“burglary to a building” in violation of 810.01(3), third degree felony.

      In this case, after the probation officer enhanced Jackson’s sentence pursuant



                                            2
to 18 U.S.C. § 924(e), Jackson objected to the determination that he is an armed

career criminal on the ground that his burglary conviction is not a qualifying

offense under the ACCA. At the sentencing hearing, Jackson argued that the

government did not show that his burglary conviction qualified as a violent felony

and thus did not meet its burden of proof. Jackson asserted that the indictment was

unclear as to whether the crime was burglary to a structure or burglary to the

curtilage of a structure.

       The district court overruled Jackson’s objection because it found that the

March 18 judgment superceded the initial judgment and that Jackson pleaded

guilty to burglary of a building. Furthermore, it found that the charging

information and two judgments were sufficient to show that Jackson qualified

under the ACCA because those documents revealed Jackson’s guilty plea to

burglary of a building, the offense charged. The district court sentenced Jackson to

180 months in prison, the minimum mandatory under 18 U.S.C. § 924(e), followed

by five years’ supervised release. Jackson appealed.

                            II. STANDARD OF REVIEW

       We review de novo a district court’s determination that a particular

conviction is a “violent felony” for purposes of the ACCA. United States v.

Matthews, 466 F.3d 1271, 1273 (11th Cir. 2006) (citing United States v. Wilkerson,



                                          3
286 F.3d 1324, 1325 (11th Cir.2002) (per curiam)).

                                 III. DISCUSSION

A. The “Violent Felony” Question

      Under 18 U.S.C. § 924(e), the ACCA, a person who violates 18 U.S.C.

§ 922(g) and has three previous convictions for a “violent felony,” a serious drug

offense, or both, is an armed career criminal and subject to imprisonment for a

period of not less than 15 years. Wilkerson, 286 F.3d at 1325. The ACCA defines

a violent felony as:

             [A]ny crime punishable by imprisonment for a term
             exceeding one year, or any act of juvenile delinquency
             involving the use or carrying of a firearm, knife, or
             destructive device that would be punishable by
             imprisonment for such term if committed by an adult,
             that-
             (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).

      1. Generic Burglary

      To constitute a violent felony under the ACCA, a “burglary” must be a

generic burglary, that is, it must have “the basic elements of unlawful or

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



                                           4
commit a crime.” Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143,

2158, 109 L.Ed.2d 607 (1990). According to the Supreme Court, a district court

may examine the charging document, plea agreement, plea colloquy, or “some

comparable judicial record of this information” to determine whether a prior

burglary conviction is generic or non-generic based on a guilty plea. Shepard v.

United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005).1

       We have noted, however, that “a district court may not rely on a charging

document without first establishing that the crime charged was the same crime for

which the defendant was convicted.” United States v. Spell, 44 F.3d 936, 940

(11th Cir. 1995). We have also recognized that under the ACCA, a district court

“may look beyond the ‘fact of conviction and the statutory definition of the prior

offense’ to the particular facts underlying those convictions only in ‘a narrow

range of cases’ where it is impossible to determine from the face of the judgment

or the violated statute whether the prior conviction was for a violent felony.”

United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir. 2007) (per curiam)

(quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109

L.Ed. 2d. 607 (1990)).



       1
        The Shephard Court rejected a sentencing court’s use of a police report as unreliable in
determining whether a crime was generic or non-generic burglary. Id. Accordingly, Jackson’s
argument that the sentencing court should have examined the police report fails.

                                                5
      At all relevant times, Florida law defined third-degree felony burglary as an

unprivileged entry into an unoccupied structure or an unoccupied conveyance with

intent to commit an offense therein. Fla. Stat. § 810.02 (1984). A structure was

defined to include the curtilage of the structure. Fla. Stat. § 810.011(1) (1984).

Jackson pleaded guilty to “unlawfully enter[ing] or remain[ing] in a structure, to-

wit: a building.” The district court found that Jackson pleaded guilty to the same

crime with which he had been charged. The court appropriately looked to the

information and judgment underlying the burglary conviction, therefore, to

determine whether it constituted a generic burglary for purposes of the ACCA. See

Shepard, 544 U.S. at 26, 125 S.Ct. at 1263.

      While on its face Jackson’s conviction is not clearly for generic burglary or

burglary of a structure’s curtilage, the charging document indicates that he did, in

fact, burglarize a building. Accordingly, because this offense “ha[d] the basic

elements of unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime,” we agree with the district court that it

qualifies as a generic burglary under the ACCA. See Taylor, 495 U.S. at 598, 110

S.Ct. at 2158.

      2. Non-generic Burglary

      Additionally, we have held that because Florida law narrowly defines “the


                                           6
curtilage of a structure to include only an enclosed area surrounding a structure,” a

burglary of a structure’s curtilage is a crime that presents a serious potential risk of

physical injury to another under the ACCA’s residual clause. Matthews, 466 F.3d

at 1275. The Supreme Court recently noted in James v. United States that the

residual provision of the ACCA can “cover conduct that is outside the strict

definition of, but nevertheless similar to, generic burglary.” 127 S.Ct. 1586, 1600,

167 L.Ed. 2d 532 (2007) (citation and internal quotation marks omitted). The

Court held that attempted burglary of the curtilage “‘presents a serious potential

risk that violence will ensue and someone will be injured’.” Id. (quoting Matthews,

466 F.3d at 1275). Thus, even if Jackson’s conviction had been for burglary of

curtilage, he would still qualify as an armed career criminal under the ACCA.

B. Constitutional Arguments Raised for the First Time on Appeal

      Jackson raises two additional arguments for the first time on appeal. First,

he argues that the district court violated his Sixth Amendment right to a jury trial

by determining his status as a career criminal based on its own finding that he had

three qualifying convictions under the statute. See Apprendi v. New Jersey, 530

U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 2d 235 (2000) (“Other than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a


                                            7
reasonable doubt.”). Jackson maintains that his situation falls outside the

exception for use of prior convictions because the district court had to determine

the precise nature of the crime underlying the prior conviction. We have

previously rejected that argument, however, as having been “foreclosed by

Supreme Court precedent.” Matthews, 466 F.3d at 1273 n.2 (citing United States

v. Greer, 440 F.3d 1267, 1275 (11th Cir. 2006)); see also James, 127 S.Ct. at 1600.

       The second argument that Jackson raises for the first time on appeal is that

the ACCA is void for vagueness in violation of the Due Process Clause, both

facially and as-applied. We “may not correct an error the defendant failed to raise

in the district court unless there is: ‘(1) error, (2) that is plain, and (3) that affects

substantial rights.’ . . . ‘If all three conditions are met, [we] may then exercise [our]

discretion to notice a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings’.” United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quoting United States v. Cotton,

525 U.S. 625, 63, 122 S.Ct. 1781, 1785, 152 L.Ed. 2d 860 (2002)). Furthermore,

we have held that an error is not plain “if it is not clear under current law.” United

States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (per curiam).

       “Vagueness may invalidate a criminal statute if it either (1) fails ‘to provide

the kind of notice that will enable ordinary people to understand what conduct it

                                              8
prohibits’ or (2) authorizes or encourages ‘arbitrary and discriminatory

enforcement’.” United States v. Eckhardt, 466 F.3d 938, 944 (11th Cir. 2006),

cert. denied, 127 S. Ct. 1305 (2007) (quoting City of Chicago v. Morales, 527 U.S.

41, 56, 119 S.Ct. 1849, 1859, 144 L.Ed. 2d 67 (1999)). When a challenge based on

vagueness does not involve the First Amendment, we review the statute as it was

applied. United States v. Awan, 966 F.2d 1415, 1424 (11th Cir. 1992) (citation

omitted).

      Because Jackson’s challenge does not involve any First Amendment issues,

Jackson’s facial challenge necessarily fails. See Awan, 966 F.2d at 1424.

Regarding his as-applied challenge, Jackson does not cite to any precedent holding

that any specific ACCA provision, much less the entire statute, is

unconstitutionally vague. Moreover, neither the Supreme Court nor this Circuit

has held that any ACCA section, let alone the entire ACCA, is unconstitutionally

vague. Thus, under Chau, even if it was error, it was not plain error because it is

not clear under current law. Chau, 426 F.3d at 1322. Accordingly, Jackson’s as-

applied challenge to the ACCA as unconstitutionally vague fails.

                                  CONCLUSION

      For the reasons set forth above, we affirm.

AFFIRMED.

                                          9
10
