                          UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT

                                   _______________________

                                         No. 96-50014
                                   _______________________


                               UNITED STATES OF AMERICA,

                                                                                Plaintiff-Appellee,

                                               versus

                               GEORGE JOSEPH TROUTMAN,

                                                                             Defendant-Appellant.


_________________________________________________________________________________

                     Appeal from the United States District Court
                          for the Western District of Texas
_________________________________________________________________________________
                                   March 6, 1997

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

               Appellant George Troutman appeals the dismissal of his habeas petition, filed pursuant

to 28 U.S.C. § 2255. On this his fourth appeal, we affirm.

                                        BACKGROUND

               On January 30, 1990, Troutman was found guilty in federal district court by a jury of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Because of his




       *
           Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
extensive criminal history,1 he was sentenced as an armed career offender pursuant to 18 U.S.C.

§ 924(e)(1), which provides for sentence enhancement if the defendant has three previous convictions

by any court for a violent felony or a serious drug offense.2 He appealed his conviction and sentence.

This court affirmed the district court in an unpublished opinion. See United States v. Troutman, No.

90-8237 (5th Cir. Aug. 14, 1991) (unpublished).

               Troutman unsuccessfully sought federal habeas relief. On appeal from the denial,

Troutman alleged, inter alia, that he received ineffective assistance of counsel during the sentencing

phase of his trial; he had allegedly informed his counsel that his four Oklahoma convictions could not

be used for enhancement under 18 U.S.C. § 924(e)(1) because he was convicted in Oklahoma without

the benefit of counsel. In an unpublished opinion, this court remanded to the district court for a

determination of the validity of his allegations that he had advised his attorneys that his prior

Oklahoma burglary convictions were without counsel. See United States v. Troutman, No. 93-8174

(5th Cir. Feb. 14, 1994) (unpublished).

               On remand, the district court again denied his request for habeas, ruling that even if

it were true that his Oklahoma convictions were rendered without benefit of counsel, Troutman was

still unable to satisfy the prejudice prong of Strickland because he had three other violent felony

convictions which would support enhancement of his sentence under § 924(e) -- armed robbery in



       1
               Troutman’s criminal history includes four convictions for second degree burglary in
Oklahoma (three in 1957 and one in 1960); one conviction for escape in Oklahoma (1960); one
conviction for possession of burglary tools in Oklahoma (1964); one conviction for bank robbery in
Kansas (1971); one conviction for burglary in California (1971); and one conviction for first degree
armed robbery in California (1976).
       2
              18 U.S.C. § 924(e)(2)(B) defines a “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year . . . that . . . is burglary . . ..”

                                                  2
California in 1976, bank robbery in Kansas in 1971, and burglary of a business in California in 1971.

Troutman appealed.

                This court again remanded Troutman’s case, ruling that because there were neither

charging papers nor jury instructions in the record, it was not possible for the district court to

conclude as a matter of law that Troutman’s 1971 California burglary conviction qualified as a violent

felony as required by § 924(e).3 See United States v. Troutman, No. 94-50577 (5th Cir. May 15,

1995) (unpublished). On remand, after referring to the information used in Troutman’s 1971 burglary

conviction, the district court concluded that it was sufficient to support an enhancement under

§ 924(e). Once again, Troutman appeals.

                                           DISCUSSION

                Whether a prior conviction has been proved sufficiently for purposes of sentence

enhancement is a question of law that this court reviews de novo. See United States v. Martinez-

Cortez, 988 F.2d 1408, 1411 (5th Cir.), cert. denied, 510 U.S. 1013 (1993).

                In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990), in an effort to

establish a uniform definition of “burglary” to be applied in determining whether a defendant’s prior

conviction qualifies as a “violent felony” pursuant to § 924(e), the Court held that a prior conviction

for burglary qualifies if the defendant’s offense constituted a “generic” burglary. A defendant’s prior

offense constitutes a “generic” burglary if he has been “convicted of any crime, regardless of its exact

definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in,

a building or structure, with intent to commit a crime.” Id. at 599. The Government is entitled to



        3
              It is not disputed that Troutman’s convictions for armed robbery (1976) and bank
robbery (1971) constitute crimes of violence under § 924(e).

                                                   3
establish that an offense was a generic burglary if “either its statutory definition substantially

corresponds to ‘generic’ burglary, or the charging paper and jury instructions actually required the

jury to find all the elements of generic burglary in order to convict the defendant.” Id. at 602.

               Troutman’s conviction for burglary in California was the result of a plea bargain. At

the time of Troutman’s conviction, the California burglary statute proscribed burglary of locations

other t han a building or a structure, and, accordingly, was by its own terms broader than would

qualify as “generic” burglary.4 Because the statute on its face is broader than the Taylor definition

of “generic” burglary, in support of enhancement of Troutman’s sentence, the Government presented

the court with the information to which Troutman pleaded guilty. The information charged Troutman

with “enter[ing] the business and building occupied by Food Fair Market . . . with the intent then and

there and therein unlawfully and feloniously to commit a felony and theft.” The Government did not

offer jury instructions; as Troutman had pleaded guilty and avoided a jury trial, none existed.

               Troutman argues that pursuant to Taylor, the Government must establish generic

burglary by proof of either (1) the statute under which Troutman was convicted or (2) the charging

papers and the jury instructions. He argues that under Taylor, the district court erred in referring

solely to the information without any jury instructions.




       4
               The California statute to which Troutman pleaded guilty provided, in relevant part:

       Every person who enters any house, room, apartment, tenement, shop, warehouse,
       store, mill, barn, stable, outhouse or other building, or any tent, vessel, or railroad car,
       trailer coach . . ., vehicle . . ., aircraft . . ., or mine . . ., with intent to commit grand
       or petit larceny or any felony is guilty of burglary.

Cal. Penal Code § 459 (historical note).

                                                     4
                This precise issue has previously been decided by a panel of this court. In United

States v. Garza, 921 F.2d 59 (5th Cir.), cert. denied, 502 U.S. 825 (1991), in order to establish that

the defendant’s prior convictions fit the definition of a “generic” burglary, the Government presented

the sentencing court with the indictments used in the prior case. Because Garza had pleaded guilty

to prior offenses, there were no jury instructions. This court concluded that the underlying

indictments “clearly demonstrate that the convictions contained the elements of generic burglary.”

Id. at 61.

        The absence of jury instructions in a guilty plea setting does not negate the application
        of the second half of Taylor’s generic burglary rubric. As the charging papers, the
        indictments, clearly reflect that Garza’s prior burglary convictions meet Taylor’s
        generic burglary definition, these convictions properly were used for sentence
        enhancement under 18 U.S.C. § 924(e)(1).

Id. This panel is bound by the prior panel’s holding in Garza, which is factually indistinguishable and

directly on point.5 See Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991) (a panel of


        5
                  Troutman urges that this panel is bound by this court’s decision in United States v.
Martinez-Cortez, 988 F.2d 1408 (5th Cir. 1993). In Martinez-Cortez, the defendant complained that
the district court erred in accepting a presentence report (“PSR”) supporting a “generic” burglary
finding in support of enhancement under § 924(e). Martinez-Cortez is distinguishable from this case
because (1) the defendant did not plead guilty to the burglary offense, but rather had been convicted
after a trial and (2) the sentencing court had relied only the PSR as support for the enhancement. The
Martinez-Cortez panel ruled that, according to Taylor, for purposes of establishing a “generic”
burglary to be used for sentence enhancement, the Government must present the sentencing court
with either (1) proper copies of the statute under which the defendant was previously convicted or
(2) the indictment/information and jury instructions under which the defendant was previously
convicted, not merely the PSR. See id. at 1412. The court based its reasoning on the following
language from Taylor:

        The categorical approach, however, may permit the sentencing court to go beyond
        the mere fact of conviction in a narrow range of cases where a jury was actually
        required to find all the elements of generic burglary. For example, in a State whose
        burglary statutes include entry of an automobile as well as a building, if the indictment
        or information and jury instructions show that the defendant was charged with a
        burglary of a building, and that the jury necessarily had to find an entry of a building

                                                   5
this court cannot overrule a prior panel’s decision without en banc consideration or an intervening

Supreme Court opinion). Moreover, every other circuit that has construed Taylor in light of a guilty

plea on a prior conviction used for enhancement under § 924(e) has agreed with Garza. See United

States v. Harris, 964 F.2d 1234, 1236 (1st Cir. 1992); United States v. Kaplansky, 42 F.3d 320, 322

(6th Cir. 1994) (en banc); United States v. Gallman, 907 F.2d 639, 645 n.7 (7th Cir. 1990); cert

denied, 499 U.S. 908 (1991); United States v. Taylor, 932 F.2d 703, 708 (8th Cir.), cert. denied, 502

U.S. 882 (1991); United States v. Sweeten, 933 F.2d 765, 769-71 (9th Cir. 1991); United States v.

Strahl, 958 F.2d 980, 983 (10th Cir. 1992); United States v. Adams, 91 F.3d 114, 116 (11th Cir.),

cert. denied, ___ U.S. ___, 117 S.Ct. 623 (1996).

                                          CONCLUSION

               For the foregoing reasons, we AFFIRM the decision of the district court and deny the

appellant’s request for habeas relief.




       to convict, then the Government should be allowed to use the conviction for
       enhancement.

Taylor, 110 S.Ct. at 2160 (emphasis supplied in Martinez-Cortez, 988 F.2d at 1412). Relying on this
language, the Martinez-Cortez panel concluded that Taylor “create[s] one (but only one) tightly
drawn exception to the ‘categorical approach’ of looking only to the statutory definition of the prior
conviction.” Martinez-Cortez, 988 F.2d at 1412. Accordingly, the panel concluded that the district
court erred in relying on the PSR. Id.

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