           NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                      File Name: 05a0967n.06
                      Filed: December 14, 2005

                     United States Court of Appeals
                              FOR THE SIXTH CIRCUIT
                                    ___________

                                    No. 04-5999
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the Western
                                         * District of Tennessee.
Brian Lee Rainwater,                     *
                                         *
      Defendant - Appellant.             *
                                    ___________


                                    ___________

Before GUY, BATCHELDER, and JOHN R. GIBSON,1 Circuit Judges.
                           ___________

JOHN R. GIBSON, Circuit Judge.

       Brian Rainwater appeals from the judgment of the district court2 finding that he
qualified for sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e).


      1
       The Honorable John R. Gibson, United States Circuit Judge for the Eighth
Circuit Court of Appeals, sitting by designation.
      2
      The Honorable James D. Todd, Chief United States District Judge for the
Western District of Tennessee.
On April 28, 2004, Rainwater pled guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g). His Presentence Investigation Report listed three
previous state convictions for aggravated burglary. In his objections to the Report,
Rainwater argued that two of the three convictions should be treated as a single
conviction for sentencing purposes. He also contended that, under Blakely v.
Washington, 542 U.S. 296 (2004), a jury should make the determination of whether
he qualified as an armed career criminal. The district court overruled these objections
and found that Rainwater's previous convictions constituted three prior "violent
felonies" under the Armed Career Criminal Act. The judge consequently sentenced
Rainwater to 180 months of custody, the mandatory minimum statutory sentence
under the Act. On appeal, Rainwater argues that the Sixth Amendment requires a jury
to determine the nature and character of prior convictions for purposes § 924(e). We
hold that it does not and affirm Rainwater's sentence.

                                          I.

       As an initial matter, we must address the government's argument that we lack
jurisdiction to hear this appeal because Rainwater waived his right to appeal in his
written plea agreement. If the appellate-review waiver contained in Rainwater's plea
agreement prevents him from challenging how his sentencing was conducted, then we
may not address his appeal. United States v. McGilvery, 403 F.3d 361, 363 (6th Cir.
2005). We review this question of law de novo. Id. at 362.

        In his plea agreement, Rainwater waived his right to appellate review. However,
this waiver contained an exception for "1) an upward departure by the sentencing
judge, 2) a sentence in excess of the statutory maximum, or 3) a sentence in violation
of law apart from the Sentencing Guidelines." At sentencing, the district judge
acknowledged the terms of the waiver and advised Rainwater that he would still have
the right to appeal the legality of his sentence on Blakely grounds. The court noted,
"[I]f I'm wrong [as to whether Blakely applies], then the sentence I just gave the

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defendant is illegal. And the plea agreement provides that the defendant can appeal
if the court gives an illegal sentence." In addition, when the government's counsel was
asked whether he thought Rainwater had waived his right to appeal on Blakely
grounds, he stated, "I'm not trying to fashion the defendant's argument, but I think that
that would perhaps fall within the language of the plea agreement allowing an appeal
but solely on the issue of Blakely if Blakely does apply."

       The government argues that this case is comparable to United States v. Fleming,
239 F.3d 761 (6th Cir. 2001), where we held that a district judge's pronouncements
and the comments of counsel at sentencing do not control over the language in the
plea agreement. However, in Fleming the defendant's plea agreement contained an
unqualified waiver of the right to appeal any sentence within the maximum provided
in the statutes, as well as a waiver of the right to appeal the manner in which the
sentence was determined. Id. at 762. Thus, when the district judge at sentencing read
the defendant the boilerplate Rule 32 notification of the right to appeal, the judge was
directly contradicting the terms of the plea agreement. Id. at 764. In the instant case,
the district judge simply interpreted the exception in Rainwater's plea agreement
allowing for appeals based on "a sentence in violation of law apart from the
Sentencing Guidelines," to include an appeal on Blakely grounds.

       We hold that this exception in the plea agreement preserved Rainwater's right
to appeal the issue of whether the district court's findings with respect to his prior
convictions violated his Sixth Amendment rights. Rainwater is not challenging a
violation of the Guidelines; he is asserting that § 924(e) violates the Sixth Amendment
when interpreted to allow judges to determine what qualifies as a "violent felony."
The one published appellate opinion addressing whether a plea agreement with an
identical exception preserved the defendant's right to appeal on Sixth Amendment
grounds the district judge's classification of his prior convictions as "aggravated
felonies" under 8 U.S.C. § 1326(a), reached the same conclusion. See United States
v. Kempis-Bonola, 287 F.3d 699, 701 (8th Cir. 2002). The Eighth Circuit

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characterized the issue on appeal not as a challenge to the Sentencing Guidelines, but
rather whether "the district court imposed a sentence on the basis of a statute that
violates his Sixth Amendment rights." Id. As a result, the terms of Rainwater's plea
agreement do not deny us jurisdiction to consider his appeal.

                                          II.

       Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant who
violates 18 U.S.C. § 922(g) who has three or more prior convictions for violent
felonies or serious drug offenses, committed on separate occasions, is subject to a
mandatory minimum sentence of fifteen years. The statutory definition of "violent
felony" includes burglary. 18 U.S.C. § 924(e)(2)(B)(ii) (2000). The Supreme Court
held in Taylor v. United States, 495 U.S. 575, 599 (1990), that for purposes of §
924(e), "burglary" refers to any crime that has as its basic elements the unlawful or
unprivileged entry into, or remaining in, a building or structure, with the intent to
commit a crime.

       The district court concluded that Rainwater's prior state convictions for three
aggravated burglaries, which were all based on guilty pleas, qualified him for
sentencing under § 924(e). Rainwater argues that a jury should have decided whether
or not the state convictions for aggravated burglary constituted "violent felonies." He
contends that the judge's determination of the nature of his prior convictions by the
preponderance of the evidence standard violated the Sixth Amendment principles
established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004).

      Rainwater's argument is foreclosed by our recent decision in United States v.
Barnett, 398 F.3d 516, 524-25 (6th Cir.), cert. dismissed 126 S. Ct. 33 (2005), where
we held that neither Booker v. United States, 125 S. Ct. 738 (2005), nor Apprendi
require the nature of a defendant's prior felony offenses to be proved to a jury for

                                         -4-
purposes of sentencing under the Armed Career Criminal Act. We stated, "There is
no language in Booker suggesting that the Supreme Court, as part of its remedial
scheme adopted in that case, intended to alter the exception to Apprendi allowing
district courts to consider the fact and nature of prior convictions without submitting
those issues to the jury." Barnett, 398 F.3d at 525. The Supreme Court's decision in
Shepard v. United States, 125 S. Ct. 1254 (2005), does not alter this result. See, e.g.,
United States v. Hill, No. 04-6139, 2005 WL 2347851, at *2 (6th Cir. Sept. 26,
2005)(unreported decision); United States v. Wynn, No. 04-5996, 2005 WL 2173786,
at *5-6 (6th Cir. Sept. 7, 2005)(unreported decision). After Shepard, other circuits
have also continued to hold that a jury finding is not required for the determination of
the nature and character of prior convictions for purposes of § 924(e). See, e.g.,
United States v. Ivery, 427 F.3d 69, 74-75 (1st Cir. 2005); United States v. Thompson,
421 F.3d 278, 283-84 (4th Cir. 2005); United States v. Wilson, 406 F.3d 1074, 1075
(8th Cir.), cert. denied, 126 S. Ct. 292 (2005); United States v. Moore, 401 F.3d 1220,
1225 (10th Cir. 2005). These cases emphasize that determining whether the statutory
definition of a prior offense meets the § 924(e)(2)(B) standard for a violent felony is
a question of law, not fact, and as a result the Sixth Amendment does not require a
jury finding on the issue.

      In light of this existing law, the district court did not err in determining that
Rainwater's prior convictions for aggravated burglary under Tennessee law were
violent felonies for purposes of § 924(e). Accordingly, Rainwater's sentence was
mandated by statute, and we affirm.

                                  _______________




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