                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1463
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Tommie Whetzell,                        *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: November 20, 2009
                                Filed: February 10, 2010
                                 ___________

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Appellant Tommie Whetzell pleaded guilty to possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1), and to making a false statement to acquire a
firearm, 18 U.S.C. § 922(a)(6). At sentencing, the district court1 calculated
Appellant's base offense level to be twenty, finding that he had previously been
convicted of housebreaking in a military court martial proceeding, and that such a
crime qualifies as a "crime of violence" under U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(4)(A) (2007). After taking into account a three-level reduction for

      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
acceptance of responsibility, U.S.S.G. § 3E1.1(a) and (b), and a four-level
enhancement based on the number of firearms involved, U.S.S.G. § 2K2.1(b)(1)(B),
the district court sentenced Appellant to forty-one months' imprisonment on each
count, to be served concurrently. Appellant argues that the district court erred in
applying § 2K2.1(a)(4)(A) because the court improperly referenced the underlying
facts in Appellant's conviction, as stated by the military appellate court, in violation
of the objective, categorical approach that the Supreme Court set out in Taylor v.
United States, 495 U.S. 575, 602 (1990). Upon de novo review, United States v.
LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006), we affirm the district court.

          The guidelines provide for a base offense level of twenty upon a district court's
finding that the defendant previously committed a "crime of violence." U.S.S.G.
§ 2K2.1(a)(4)(A). Appellant's prior crime, the crime of housebreaking, occurs when
"[a]ny person subject to [the Uniform Code of Military Justice] . . . unlawfully enters
the building or structure of another with intent to commit a criminal offense therein
. . . ." 10 U.S.C. § 930. Housebreaking is a generic burglary crime because it includes
the elements of "unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime." Taylor, 495 U.S. at 599. We have held that
generic burglary, as defined in Taylor, is a crime of violence within the meaning of
the guidelines. E.g., United States v. Stymiest, 581 F.3d 759, 769 (8th Cir. 2009);
LeGrand, 468 F.3d at 1082. Therefore, Appellant's conviction for housebreaking
constitutes a prior crime of violence.

       Appellant's primary argument against this conclusion is that the district court
improperly referenced the military court's discussion of the underlying facts of his
conviction. Generally, a court is only to consider "the fact of conviction and the
statutory definition of the prior offense." Taylor, 495 U.S. at 602. But the district
court's reference in this case to the underlying facts of Appellant's housebreaking
conviction, as articulated in the military court's opinion, does not change the fact that
the elements of housebreaking constitute a generic burglary crime, a crime of violence

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under our precedents. Further, and contrary to Appellant's argument, the Supreme
Court's opinion in Begay v. United States, 553 U.S. 137 (2008), did not alter our
decisions in regard to generic burglary and does not provide reason for reversal. See
Stymiest, 581 F.3d at 768–69.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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