                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5077



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KAMAL MABREY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge. (CR-
03-511-RDB)


Submitted:   September 9, 2005            Decided:   October 20, 2005


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


James Wyda, Federal Public Defender, John H. Chun, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Allen F. Loucks, United States Attorney, John F. Purcell, Jr.,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Kamal Mabrey pled guilty to being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2000), and the

district court sentenced him to 188 months of imprisonment, the

bottom of the applicable Sentencing Guidelines range. The district

court also announced an alternate sentence of 180 months, the

statutory mandatory minimum sentence, if the Sentencing Guidelines

were advisory only.   On appeal, Mabrey asserts that the district

court erred in classifying him as an armed career criminal under 18

U.S.C.A. § 924(e) (West 2000 & Supp. 2005), that his sentence

violates the Sixth Amendment because the predicate offenses used to

enhance his sentence were neither submitted to a jury nor admitted

by him, and that the court erred by sentencing him under a

mandatory Sentencing Guidelines scheme.   Mabrey does not challenge

his conviction on appeal.   We affirm Mabrey’s conviction, vacate

Mabrey’s sentence, and remand for resentencing.1

          Mabrey first asserts that the district court erred in

concluding that his Maryland conviction for second-degree burglary

qualified as a violent felony under § 924(e).      “[I]n reviewing a

district court’s application of [§ 924(e)(1)], we review its legal

determinations de novo and its factual findings for clear error.”



     1
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Mabrey’s sentencing.

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United States v. Wardrick, 350 F.3d 446, 451 (4th Cir. 2003), cert.

denied, 541 U.S. 966 (2004).            We recently stated that determining

whether a prior felony qualified as a violent felony under § 924(e)

is a legal determination.             United States v. Thompson, __ F.3d __,

__,   2005   WL   2128957,       at    *1,    *4    (4th    Cir.   Sept.    6,   2005)

(No. 04-4678).

             In Taylor v. United States, 495 U.S. 575 (1990), the

Supreme Court held that a defendant “has been convicted of burglary

for purposes of a § 924(e) enhancement if he is 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.   Generally, a sentencing court need only consider the fact

of the prior conviction and the statutory definition of the prior

offense to determine whether the prior offense was a burglary

within the meaning of § 924(e)(2)(B)(ii). Taylor, 495 U.S. at 602.

If, however, the statutory definition of the offense includes

conduct which would not constitute burglary under § 924(e), such as

unlawful entry into an automobile, a boat, or a vessel, the court

may examine the indictment or information and the jury instructions

to determine if the jury had to find all the elements of generic

burglary to convict the defendant.                Id. at 599, 602; see Shepard v.

United    States,     125   S.   Ct.     1257,      1263    (2005)    (holding    that

sentencing    court    cannot     look       to    police   reports    or   complaint


                                         - 3 -
applications to determine whether prior offense is generic burglary

but may “examin[e] the statutory definition, charging document,

written plea agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which the defendant

assented”     or   “some      comparable         judicial       record     of    this

information”).

            Here, second-degree burglary in Maryland has as elements

the   unprivileged    entry      into    a    building    for    the     purpose   of

committing a crime.         See Md. Ann. Code art. 27, § 30 (2000)

(prohibiting “break[ing] and enter[ing] the storehouse of another

with the intent to commit theft”) (repealed 2002) (current version

at Md. Code Ann., Crim. Law § 6-203 (2002)); Md. Ann. Code art. 27,

§ 28(e) (2000) (defining storehouse) (repealed 2002) (current

version at Md. Code Ann., Crim. Law § 6-201(h) (Supp. 2004)).

Because the state statutes cover conduct that does not constitute

generic burglary under Taylor, we next examine the state court

indictment.

            Although Mabrey contends, as he did in the district

court, that the state court indictment to which he pled guilty was

ambiguous,    we   disagree.       The       indictment   alleged      that     Mabrey

unlawfully broke and entered into the “storehouse of Woodbridge

Elementary School.”      (JA-I at 26).          By defining the storehouse as

Woodbridge Elementary School, the indictment charged Mabrey with

unlawfully    breaking     and    entering       a   building.         Because     the


                                        - 4 -
second-degree   burglary    conviction    satisfied      the    definition    of

generic burglary set forth in Taylor, as determined by reference to

documents   approved   in   Shepard,     we    find    that    the   conviction

qualified as a violent felony under § 924(e).2           Thus, the district

court properly designated Mabrey as an armed career criminal.

            Next, citing Blakely v. Washington, 542 U.S. 296 (2004),

Mabrey contends that sentencing him as an armed career criminal

violated his Sixth Amendment rights.           Because Mabrey raised this

issue in the district court, we review his claim de novo.                    See

United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003)

(stating standard of review).     Mabrey’s argument is foreclosed by

our decisions in Thompson, __ F.3d at __, 2005 WL 2128957, at *2

n.2, *4, *6 (holding that nature and occasion of offenses are facts

inherent in convictions and those facts need not be alleged in

indictment or submitted to jury), and United States v. Cheek, 415

F.3d 349, 350 (4th Cir. 2005) (holding that application of armed

career   criminal   enhancement   falls       within   exception     for   prior

convictions where facts were undisputed, making it unnecessary to

engage in further fact finding about a prior conviction).                  Thus,

there is no Sixth Amendment error in this case.

            Finally, Mabrey asserts that his sentence violates United

States v. Booker, 125 S. Ct. 738 (2005), because the district court



     2
      Mabrey conceded that he had two other qualifying predicate
convictions.

                                  - 5 -
sentenced him under a mandatory Sentencing Guidelines scheme.   We

have held that treating the Guidelines as mandatory is error under

Booker.   United States v. White, 405 F.3d 208, 216-17 (4th Cir.

2005).    Our review of the record convinces us that there is a

nonspeculative basis on which we could conclude that the district

court would have sentenced Mabrey to a lower sentence had the court

proceeded under an advisory Sentencing Guideline scheme.   See id.

at 223.   Thus, we find that sentencing Mabrey under a mandatory

Sentencing Guidelines scheme affected his substantial rights.   See

id. (noting that substantial rights inquiry under plain or harmless

error is the same and that only difference is who bears burden of

proof).

           Accordingly, we vacate Mabrey’s sentence and remand for

resentencing.3   We also affirm Mabrey’s conviction.   We dispense

with oral argument because the facts and legal contentions are




     3
      Although the Guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the] Guidelines
and take them into account when sentencing.” 125 S. Ct. at 767
(Breyer, J., opinion of the Court). On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. Hughes, 401 F.3d at 546. The court should consider
this sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005).    Hughes, 401 F.3d at 546.     The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.

                               - 6 -
adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




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