     Case: 10-11225     Document: 00511672167         Page: 1     Date Filed: 11/21/2011




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                            FILED
                                                                        November 21, 2011
                                     No. 10-11225
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

THOMAS EDDINS,

                                                  Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:10-CR-105-1


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
         Thomas Eddins pleaded guilty to one count of being a felon in a possession
of a firearm pursuant to 18 U.S.C. § 922(g). The district court sentenced him to
180 months in prison, the statutory minimum provided by the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (ACCA). Eddins appeals, arguing that his 1985
Texas burglary conviction does not qualify under the ACCA. The Government
moves for summary affirmance or, alternatively, an extension of time to file a
brief.

         *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-11225

      We review the interpretation of a sentence enhancement provision de
novo. United States v. Montogmery, 402 F.3d 482, 485 (5th Cir. 2005). Pursuant
to Taylor v. United States, 495 U.S. 575, 599 (1990), generic burglary, which is
a listed ACCA predicate offense, is the “unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.” The
charging documents to which Eddins pleaded guilty state that Eddins entered
a building not open to the public, without the effective consent of the owner, with
the intent to commit theft. This language tracks that of § 30.02(a)(1) of the
Texas Penal Code, under both the current version and the version in effect in
1985. We have held that burglary under § 30.02(a)(1) constitutes generic
burglary for purposes of the ACCA. United States v. Silva, 957 F.2d 157, 162
(5th Cir. 1992); see also United States v. Constante, 544 F.3d 584, 585-86 (5th
Cir. 2008) (noting that Silva held that burglary under § 30.02(a)(1) is generic
burglary). Eddins’s reliance on our holding in Constante, 544 F.3d at 587, that
an offense under § 30.02(a)(3) is not generic burglary because it lacks the
requisite element of intent, is misplaced.
      Eddins attempts to distinguish his offense because it was a second degree
felony under the 1985 version of the burglary statute and thus necessarily
lacked the violent or potentially violent conduct that would make it a first degree
felony. He relatedly argues that his crime did not involve purposeful, violent,
and aggressive conduct, which he contends is required by the analysis of Begay
v. United States, 553 U.S. 137 (2008). We discern nothing in his arguments that
alters our holding in Silva, 957 F.2d at 162, that the elements of § 30.02(a)(1)
correspond to those of generic burglary, i.e., the “nonconsensual entry into a
building with intent to commit a crime.”
      Finally, Eddins contends that the district court improperly enhanced his
sentence in violation of the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000).
He argues that whether the prior convictions were committed on different
occasions, as required under the ACCA, is a fact that must be alleged in the

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                                     No. 10-11225

indictment and either proved by the Government beyond a reasonable doubt or
admitted by the defendant. As Eddins concedes, this argument is foreclosed.
See United States v. White, 465 F.3d 250, 254 (5th Cir. 2006).
      Although we conclude that the judgment should be affirmed without
further briefing, summary disposition is not appropriate. See United States v.
Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006). Thus, we
deny the Government’s motion for summary affirmance or, alternatively, for an
extension of time to file a brief.
      JUDGMENT AFFIRMED; MOTION DENIED.




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