     Case: 14-40281      Document: 00512845381         Page: 1    Date Filed: 11/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40281
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 21, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOSHUA WALLACE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-595-1


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Joshua Wallace appeals the sentence imposed on
remand following his guilty plea to being a felon in possession of a firearm. He
claims that the district court erred in determining that his Limestone County,
Texas, and Navarro County, Texas, convictions for burglary triggered
application of the enhanced penalties under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(1). Reviewing the district court’s application of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40281

§ 924(e) sentencing enhancement de novo, United States v. Constante, 544 F.3d
584, 585 (5th Cir. 2008), we affirm.
      Three qualifying convictions are necessary for enhancement under
§ 924(e)(1) and U.S.S.G. § 4B1.4, cmt. (n.1). The issue here is whether Wallace
has three prior convictions for violent felonies. See § 924(e) (2)(B)(ii). Burglary
is one of the enumerated offenses identified in § 924(e) as a violent felony. §
924(e)(2)(B)(ii). “Burglary” has been interpreted in § 924(e) in terms of its
modern, generic usage, which the Supreme Court has held must contain, at a
minimum, the following elements: “‘an unlawful unprivileged entry into, or
remaining in, a building or other structure, with intent to commit a crime.’”
Constante, 544 F.3d at 585 (quoting Taylor v. United States, 495 U.S. 575, 598
(1990)).
      Texas defines burglary as follows:
      (a) A person commits an offense if, without the effective consent of
      the owner, the person:
            (1) enters a habitation, or a building (or any portion of a
      building) not then open to the public, with intent to commit a
      felony, theft, or an assault; or
            (2) remains concealed, with intent to commit a felony, theft,
      or an assault, in a building or habitation; or
            (3) enters a building or habitation and commits or attempts
      to commit a felony, theft, or an assault
TEX. PEN. CODE Ann. § 30.02 (Vernon 2011).
      We have previously held that a conviction under § 30.02(a)(1) qualifies
as a generic burglary for purposes of the ACCA. United States v. Silva, 957
957 F.2d 157, 162 (5th Cir. 1992). In Constante, however, we held that a
§ 30.02(a)(3) conviction was not a generic burglary as defined by Taylor
because it did not contain an element of intent to commit a felony, theft, or




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assault at the moment of entry; thus, it was not a violent felony for § 924(e)
purposes. 544 F.3d at 587.
      Wallace argues that because the judgments in his burglary cases
establish that his convictions were second degree felonies, they are necessarily
convictions under § 30.02(a)(3) because only a § 30.02(a)(1) conviction is a first
degree felony. In United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th
Cir.), cert. denied, 2014 WL 4249011 (U.S. Oct. 6, 2014) (No. 14-6009), we held
that the modified categorical approach set forth in Taylor is applicable to
determine which of the three alternatives of § 30.02(a) formed the basis of the
defendant’s   conviction     in   assessing   whether      he   qualified   for   a
§ 2L1.2(b)(1)(A)(ii) crime-of-violence enhancement. In Conde-Castaneda, we
held that when the indictment charged the defendant with violating both
§ 30.02(a)(1) and § 30.02(a)(3), and the judgment recited only that he had been
convicted under § 30.02(c)(2), resort could be had to the defendant’s “boiler
plate” judicial confession. 753 F.3d at 174, 177-78. In that confession, he
admitted to every act alleged in the indictment, so we held that the judicial
confession was sufficient to establish that his conviction rested on both
subsections (a)(1) and (a)(3), as charged in the indictment. Id. at 174, 177-78.
Having previously held that a § 30.02(a)(1) conviction constitutes “burglary of
a dwelling” under the Sentencing Guidelines, we held that the judicial
confession established that his crime of violence enhancement had been
correctly imposed. Id. at 178-79.
      In Wallace’s case, his indictment in the Limestone County burglary did
not list the statute under which he was charged, but it alleged that he “then
and there, with intent to commit theft, intentionally and knowingly enter[ed] a
habitation, without the effective consent of [the owner] thereof[.]” (emphasis
added). The judgment made no reference to the statute of conviction but



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established that Wallace pleaded guilty to the indictment and was convicted of
a second degree felony. In a document entitled “Recitations of Judgment,”
however, the court asked Wallace “whether he was guilty of the offense alleged
in said charging instrument and [Wallace] [] answered in person that he was
guilty.” The court also stated that it was of the opinion that Wallace was
“guilty of the offense . . . as charged in [the] charging instrument.”
Consequently, the modified categorical approach supports a determination
that Wallace was convicted under § 30.02(a)(1), which contains as an element
the requisite intent and is therefore an appropriate predicate offense under the
ACCA. See Silva, 957 F.2d at 162.
      As for the Navarro County burglary, the indictment charged that
Wallace “did then and there, with the intent to commit theft, intentionally and
knowingly enter a habitation, without the effective consent of [the owner].” As
in Conde-Castaneda, the judgment stated only that Wallace was convicted
under § 30.02(c)(2). See 753 F.3d at 177. Section 30.02(c)(2) simply provides
that a burglary conviction is a second degree felony if committed in a
habitation. TEX. PENAL CODE Ann. § 30.02(c)(2). Nevertheless, as in Conde-
Castaneda, Wallace judicially confessed that he intentionally and knowingly
entered a habitation without consent of the owner “with the intent to commit
theft,” thus meeting all the elements of § 30.02(a)(1). Consequently, under
Conde-Castaneda, this burglary also qualifies as a violent felony and predicate
offense for the ACCA. See 753 F.3d at 174.
      Wallace insists that Conde-Castaneda does not foreclose his argument
that a second degree burglary conviction under § 30.02(c)(2), which has no
intent element, must be treated as a § 30.02(a)(3) conviction and thus may not
serve as a predicate offense under the ACCA. Wallace contends that we have
not yet decided whether the absence of an intent requirement in §30.02(c)(2)



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means that the conviction may still be considered a violation of § 30.02(a)(1).
This argument is unpersuasive because, in Conde-Castaneda, the judgment
listed the statute of conviction as § 30.02(c)(2), but we still concluded that the
modified categorical approach supported a determination that the defendant
was convicted under § 30.02(a)(1), having confessed to all the elements of that
subsection. 753 F.3d at 177-78.
      In summary, the district court did not err in holding that Wallace’s
Limestone County and Navarro County burglary convictions served as
predicate offenses for purposes of the ACCA enhancement.             As Wallace
conceded that his escape conviction rightly served as a predicate offense, a total
of three prior violent felony convictions qualified him for the enhancement. See
§ 924(e)(1).
      AFFIRMED.




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