                                                                          [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT           FILED
                          ________________________ U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                                                   OCT 12, 2006
                                 No. 05-13447
                                                                 THOMAS K. KAHN
                           ________________________
                                                                     CLERK

                   D.C. Docket No. 04-00076 CR-FTM-33-DNF

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                        versus

RAYMOND PAUL MATTHEWS,

                                                            Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                 (October 12, 2006)

Before MARCUS, WILSON and COX, Circuit Judges.

COX, Circuit Judge:

      We decide in this appeal whether a Florida conviction for burglary of the

curtilage of a structure is a conviction for a violent felony for purposes of the Armed

Career Criminal Act, 18 U.S.C. § 924(e) (the ACCA). Pretermitting consideration
of whether such a burglary is “generic burglary,” we conclude that it is a violent

felony as defined by the ACCA because it “involves conduct that presents a serious

potential risk of physical injury to another[.]” 18 U.S.C. § 924(e)(2)(B)(ii).

                                I. BACKGROUND

      Raymond Paul Matthews was convicted by a jury of being a convicted felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession of

an unregistered short-barreled shotgun, in violation of 26 U.S.C. § 5861(d).

Previously, Matthews had been convicted of multiple felonies under Florida law,

including: (1) third-degree burglary in 1985; (2) second-degree burglary and

aggravated battery arising out of the same facts, also in 1985; (3) third-degree

burglary in 1989; and (4) aggravated assault in 2001. He was sentenced as an armed

career criminal, defined by the ACCA as a person who “has three previous

convictions . . . for a violent felony or a serious drug offense, or both, committed on

occasions different from one another.” 18 U.S.C. § 924(e)(1). The mandatory

minimum sentence for an armed career criminal is fifteen years’ imprisonment. Id.

      Matthews argued at sentencing that he was not an armed career criminal

because his two third-degree burglary convictions should not be considered violent

felonies. The district court heard argument on the question and ruled that Matthews’s

aggravated battery conviction in 1985, aggravated assault conviction in 2001, third-

                                          2
degree burglary conviction in 1985, and third-degree burglary conviction in 1989

were all convictions for violent felonies as defined by the ACCA.1 The district court

found that the third-degree burglaries “involve[d] conduct that present[ed] a serious

potential risk of physical injury to another.” (R.10 at 75.) Therefore, the court

sentenced Matthews to 280 months’ imprisonment and five years’ supervised release.

     II. ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES

       Matthews appeals his sentence, arguing (as he did in the trial court) that neither

of his third-degree burglary convictions should be considered violent crimes under

the ACCA. Matthews contends that, because, under the Florida statute, those

convictions were for burglary of a structure or the curtilage thereof, they are not

convictions for “generic burglary.” Burglary of a curtilage, Matthews contends, is not

generic burglary.2


       1
         The district court did not find that the 1985 second-degree burglary conviction was a
qualifying conviction under the ACCA because that conviction arose out of the same facts and
circumstances as the aggravated battery conviction. See 18 U.S.C. § 924(e)(1) (requiring that
qualifying violent felonies be “committed on occasions different from one another.”)
       2
          Matthews also argues that his Sixth Amendment right to trial by jury was violated when the
district court judge determined that his previous convictions were for violent felonies rather than
requiring a jury verdict so finding. That argument has been rejected by this court as foreclosed by
Supreme Court precedent. See United States v. Greer, 440 F.3d 1267, 1273-74 (11th Cir. 2006)
(recognizing that Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), controls
and instructs that the determination may be made by a judge).
         And, Matthews appeals his conviction for being a felon in possession of a firearm, based on
his arguments (which he did not raise in the district court) that: (1) 18 U.S.C. § 922 is facially
unconstitutional because it is an exercise of Congressional power beyond the authorization of the
Commerce Clause, and (2) the statute is unconstitutional as applied to him because there was no

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       The Government argues that burglary of the curtilage of a structure is “generic

burglary.” It further argues that the district court correctly found that Matthews’s

third-degree burglary convictions are violent felonies because, even if they are not

convictions for “generic burglary,” they are convictions for felonies that “otherwise

involve[] conduct that presents a serious potential risk of physical injury to

another[.]” 18 U.S.C. § 924(e)(2)(B)(ii).

                            III. STANDARD OF REVIEW

       This court considers de novo whether a particular conviction is a “violent

felony” for purposes of the ACCA. United States v. Wilkerson, 286 F.3d 1324, 1325

(11th Cir. 2002).

                                    IV. DISCUSSION

       The ACCA defines a violent felony as:

              [A]ny crime punishable by imprisonment for a term
              exceeding one year, or any act of juvenile delinquency
              involving the use or carrying of a firearm, knife, or
              destructive device that would be punishable by
              imprisonment for such term if committed by an adult, that–
                     (i) has as an element the use, attempted use, or
              threatened use of physical force against the person of
              another; or



evidence that his conduct substantially affected interstate commerce. These arguments are
foreclosed by circuit precedent. See United States v. McAllister, 77 F.3d 387, 389-90 (11th Cir.
1996).

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                   (ii) is burglary, arson, or extortion, involves use of
             explosives, or otherwise involves conduct that presents a
             serious potential risk of physical injury to another[.]

18 U.S.C. § 924(e)(2)(B).

      In Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143 (1990), the Supreme

Court held “an offense constitutes ‘burglary’ for purposes of a § 924(e) sentence

enhancement 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.” 495 U.S. at

602, 110 S. Ct. at 2160. The court defined “generic burglary” as an offense “having

the basic elements of unlawful or unprivileged entry into, or remaining in, a building

or structure, with intent to commit a crime.” 495 U.S. at 599, 110 S. Ct. at 2158.

      At the relevant times, Florida law defined third-degree felony burglary as an

unprivileged entry into an unoccupied structure or an unoccupied conveyance with

intent to commit an offense therein. Fla. Stat. § 810.02. A structure was defined to

include the curtilage of the structure. Fla. Stat. § 810.011(1). Florida case law

construes curtilage narrowly, to include only an enclosed area surrounding a

structure. See State v. Hamilton, 660 So.2d 1038, 1044 (Fla. 1995); Henry v. State,

707 So.2d 370, 372 (Fla. App. 1 Dist. 1998)




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      Consistent with the fact that Florida does not consider burglary of the curtilage

of a structure to be a crime distinct from burglary of that structure, Henry, 707 So.2d

at 372, the judgments of conviction for Matthews’s third-degree burglaries list his

crimes only as “Burglary” and “Burglary (Structure).” The convictions do not specify

whether he entered the roofed portion of a structure or only its curtilage. (R.10-88,

Ex. 1 at 1, Ex. 3 at 1.) The charging documents are also ambiguous in that regard.

(Id., Ex. 1 at 3 (charging entry into “a structure or the curtilage thereof”), Ex. 3 at 3

(same).) And, the district court was not presented with any other judicial record that

provides that information.

      Matthews argues that because the Florida crime of burglary includes both entry

into the roofed area of a structure and entry into the curtilage of a structure and

because the judicial record does not demonstrate that he was convicted of burglary

of the roofed areas of structures, his convictions may have been for burglary of the

curtilages of the structures. He further contends that burglary of the curtilage of a

structure is not “generic burglary,” as defined by the Supreme Court in Taylor. Thus,

he concludes that because these convictions are not “generic burglary” convictions,

they are not convictions for violent felonies as defined by the ACCA.

      We agree with Matthews that, on this record, one cannot determine whether

either of his two third-degree burglary convictions was for burglary of the roofed

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portion of a structure.3 It may be that Matthews was convicted of these burglaries for

entering the curtilages of the structures. Even so, Matthews’s logic fails; it discounts

an alternative prong of the statutory test for a violent felony, that the crime “otherwise

involves conduct that presents a serious potential risk of physical injury to another[.]”

18 U.S.C. § 924(e)(2)(B)(ii). We hold that, even if Matthews’s third-degree burglary

convictions are not convictions for “generic burglary,” they are convictions for

violent crimes under the ACCA because they satisfy this alternative definition.

       As we have explained above, Florida narrowly defines the curtilage of a

structure to include only an enclosed area surrounding a structure. We are satisfied

that a burglary of this circumscribed area is indeed a crime that “presents a serious

potential risk of physical injury to another[.]” Id. Regardless of whether a burglar

breaches the roofed portion of a structure, his unlicensed entry into the enclosed area

surrounding that structure may bring him into close physical proximity with the same

persons he might encounter were he to enter the structure. He may come into contact

with the property’s owners, occupants, or caretakers. His close physical presence to

the structure could lead an innocent person to investigate why he is there, and his

       3
        The Government cites law enforcement officers’ probable cause affidavits and other
documents outside the judicial record to demonstrate that Matthews entered the structures. (See
Appellee’s Brief at 3, 4.) To the extent the Government invites us to rely on those documents to
determine that Matthews entered the structures, we decline to do so. See Shepard v. United States,
544 U.S. 13, 125 S. Ct. 1254 (2005) (restricting the kind of evidence that a judge may consider in
making a finding that a prior conviction qualifies under the ACCA to judicial records).

                                                7
presence alone could reasonably be perceived by any of these persons as threatening.

Either the innocent or the burglar might react violently. In short, the burglar’s

presence in the curtilage of the structure presents a serious potential risk that violence

will ensue and someone will be injured.

       Our decision is consistent with the Supreme Court’s opinion in Taylor which

specifically acknowledges that some burglary-like offenses that are not “generic

burglaries” may be violent felonies nonetheless. See Taylor, 495 U.S. at 600 n.9, 110

S. Ct. at 2159 n.9 (“The Government remains free to argue that any offense –

including offenses similar to generic burglary – should count towards enhancement

as one that ‘otherwise involves conduct that presents a serious potential risk of

physical injury to another’ under § 924(e)(2)(B)(ii).”). And, it is consistent with our

precedent. Recently, we held that “an attempt to commit burglary . . . presents the

potential risk of physical injury to another sufficient to satisfy the ACCA’s definition

of a ‘violent felony.’” United States v. James, 430 F.3d 1150, 1157 (11th Cir. 2005),

cert. granted, 126 S. Ct. 2860 (U.S. June 12, 2006) (No. 05-9264). In deciding that

conspiracy to commit robbery is a violent felony, we said, “When one reaches an

agreement with a co-conspirator to commit a robbery, and formulates the intent to

commit the robbery, his conduct presents at least a potential risk of physical injury

within the meaning of § 924(e)(2)(B)(ii).” United States v. Wilkerson, 286 F.3d 1324,

                                            8
1325-26 (11th Cir. 2002). And, we have construed the same language in section

4B1.2 of the United States Sentencing Guidelines to hold that the crimes of attempted

burglary, felony DUI, carrying a concealed weapon, and using an Internet facility to

entice a minor to engage in sexual activity all present “a serious potential risk of

physical injury to another.” See United States v. McGill, 450 F.3d 1276 (11th Cir.

2006); United States v. Searcy, 418 F.3d 1193 (11th Cir. 2005); United States v.

Gunn, 369 F.3d 1229 (11th Cir. 2004); United States v. Gilbert, 138 F.3d 1371 (11th

Cir. 1998).

      The district court did not decide whether burglary of the curtilage of a structure

is a “generic burglary” as discussed in Taylor. Given our holding that burglary of

the curtilage of a structure (as defined by Florida law) “otherwise involves conduct

that presents a serious potential risk of physical injury to another,” we need not

express an opinion on whether the offenses in question here are “generic burglaries”

as discussed in Taylor.

                                 V. CONCLUSION

      Because we find no merit in Matthews’s constitutional arguments and hold that

a Florida conviction for burglary of a structure’s curtilage is a conviction for a violent

crime because it “involves conduct that presents a serious potential risk of physical




                                            9
injury to another[,]” we affirm Matthews’s conviction and sentence pursuant to the

ACCA.

      AFFIRMED.




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