                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-3552
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
Louis A. Soileau,                      *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: June 13, 2012
                                Filed: August 2, 2012
                                 ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

BYE, Circuit Judge.

       Louis A. Soileau pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court1 determined
Soileau had four prior convictions which qualified as violent felonies, and thus he
was subject to the enhanced sentencing provisions of the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e). Soileau appeals the enhanced ACCA sentence. We
affirm.


      1
       The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
                                          I

       On January 3, 2011, Louis Soileau and his girlfriend stole firearms and a
Chevrolet Corvette from the girlfriend’s husband. The government filed a three-
count indictment, charging Soileau with unlawful possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). The parties verbally agreed to dismiss counts one and two.
Soileau pleaded guilty to count three.

       Prior to sentencing, the district court ordered a Presentence Investigation
Report (PSR). The PSR concluded Soileau was an armed career criminal under
section 4B1.4 of the United States Sentencing Guidelines (USSG) and was therefore
subject to an enhanced sentence under the ACCA. PSR ¶ 33. The PSR further
indicated Soileau had four prior convictions which counted as violent felonies:
paragraphs 46 and 48 of the PSR indicate Soileau burglarized a building, while
paragraphs 44 and 47 indicate he had pleaded guilty to a “simple burglary.”
Accordingly, the PSR determined the advisory Sentencing Guidelines range to be 188
to 235 months’ imprisonment. PSR ¶ 93. Soileau objected to the PSR’s conclusion
the convictions described in paragraphs 44 and 47 qualified as violent felonies.
During the sentencing hearing on October 27, 2011, the government offered and, over
a partial objection by defense counsel, the court admitted copies of the charging
documents, change of plea documents, plea agreement, and commitment papers, for
the simple burglary convictions described in paragraphs 44 and 47. The court also
took judicial notice of section 14:62 of the Louisiana Revised Statute, “simple
burglary.”

       At the sentencing hearing, Soileau objected to the PSR finding that he was
subject to an enhanced sentence under § 924(e). Soileau argued the district court was
restricted to applying a “categorical approach” in reviewing the prior Louisiana
“simple burglary” convictions to determine whether they qualified as violent felonies,
and thus it was limited to a review of the statute and the final commitment papers.

                                         -2-
Soileau argued, therefore, that the district court could not refer to the charging
documents, plea agreement, and change of plea documents. The government
responded the court could look to these additional documents in those cases where
the statute criminalized conduct which both would, and would not, qualify as a
violent felony. The district court requested the parties brief the issue.

       Ultimately, the district court determined it should use the modified categorical
approach to decide whether Soileau’s prior simple burglary convictions qualified as
violent felonies. Thus, the district court considered the charging documents, plea
agreement, and change of plea documents. Further, the court found there was
“sufficient reliability in the documents before the court and that the presentence
report is correct as to the effect of a prior criminal record.” Sent. Tr. II at 5.
Accordingly, the district court found Soileau had committed four prior violent
felonies under § 924(e), and he was therefore subject to the enhanced sentence as an
armed career criminal under section 4B1.4(a) of the Guidelines. The district court
sentenced Soileau to 180 months’ imprisonment. Soileau appeals the enhanced
sentence under § 924(e).

                                           II

      “We review de novo a district court’s determination that a defendant’s prior
conviction constitutes a violent felony for purposes of § 924(e).” United States v.
Boaz, 558 F.3d 800, 806 (8th Cir. 2009).

         Section 924(e) applies when a defendant has been convicted as a felon in
possession of a firearm in violation of § 922(g) and has three prior violent felony
convictions. 18 U.S.C. § 924(e)(1). A violent felony “(i) has as an element the use,
attempted use, or threatened use of physical force against the person of another; or
(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.” Id.

                                          -3-
§ 924(e)(2)(B). The statute mandates a minimum sentence of fifteen years. Id.
§ 924(e)(1). Although § 924(e) includes “burglary” as a violent felony, not all
burglaries qualify as violent felonies: “[A] person 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.” Taylor
v. United States, 495 U.S. 575, 599 (1990) (emphasis added).

                                          A

      Soileau appeals the district court's application of the § 924(e) sentence
enhancement, arguing the government failed to prove he committed three qualifying
violent felonies.

       When determining whether a state-law offense qualifies as a violent felony,
courts must always start with the formal categorical approach and look “only to the
fact of conviction and the statutory definition of the prior offense.” Id. at 602.
However, “when the statute giving rise to the conviction criminalizes both conduct
that does and does not qualify as a violent felony[,]” courts apply a modified
categorical approach. United States v. Webster, 636 F.3d 916, 919 (8th Cir. 2011)
(internal quotation marks and citation omitted). The modified categorical approach
permits courts to review “the charging document, jury instructions, plea agreement
or plea hearing transcript, and comparable judicial records . . . .” United States v.
Salean, 583 F.3d 1059, 1061 (8th Cir. 2009).

       In this case, after considering the commitment papers corresponding to the two
contested felonies, the district court examined the charging documents, plea
agreement, and change of plea documents for two reasons. First, the court used the
documents to determine the statute to which Soileau pleaded guilty—section 14:62
of the Louisiana Revised Statues. Second, because section 14:62 criminalizes both

                                         -4-
conduct which does and does not qualify as a violent felony, the court proceeded to
consider those same documents when it applied the modified categorical approach.

      Soileau argues the court improperly considered the charging documents, plea
agreement, and change of plea documents in both instances. He contends that
because the commitment papers lack credibility,2 this fact alone should have
prevented the court from using the additional documents to determine to which statute
Soileau pleaded guilty, and further should have prevented the court from applying the
modified categorical approach to categorize his previous conduct.

       We first reject Soileau’s argument the court was not permitted to consider
documents besides the commitment papers to determine the statute to which Soileau
pleaded guilty. In determining of which crime a person was previously convicted,
courts are not limited to reviewing commitment documents. See Webster, 636 F.3d
at 919 (stating that to determine whether the defendant was convicted of a particular
crime, the court may weigh “the case history document, and any other available
relevant evidence”). Although the Supreme Court has limited the type of evidence
a court may consider to determine the character of the prior conviction, “[t]he
limitation does not apply to antecedent factual questions such as whether the
defendant was convicted of a crime at all, or of which crime the defendant was
convicted.” Id. Instead, courts may consider other relevant documents, as the district
court did in this case.

       We recognize Soileau’s commitment papers relating to both contested felonies
only indicated he pleaded guilty to a “simple burglary.” And while section 14:62 of
the Louisiana Revised Statutes defines “simple burglary,” neither commitment paper


      2
       Soileau states the commitment papers do not reference a statute number, do
not include the signature of either attorney, do not include Soileau’s signature, and
only one of the commitment papers includes the district court judge’s signature.
                                         -5-
listed the statute’s number. But the court was permitted to consider the charging
documents, and those documents collaborate the fact Soileau pleaded guilty to a
charge of simple burglary brought under section 14:62 of the Louisiana Revised
Statutes. Count one of the charging document which corresponds to the simple
burglary conviction listed in paragraph 44 of the PSR states Soileau did “commit
simple burglary . . . in violation of R.S. 14:62.” Similarly, the charging document
related to the simple burglary conviction listed in paragraph 47 states Soileau
“committed the offense of R.S. 14:62 SIMPLE BURGLARY . . . .” Therefore, having
reviewed the commitment papers and the charging documents, we conclude the
district court properly determined the statute to which Soileau pleaded guilty was
section 14:62 for both contested felonies.

        We also reject Soileau’s argument the district court improperly applied the
modified categorical approach to determine the nature of his prior convictions.
Soileau does not dispute the fact section 14:62 is overinclusive since it criminalizes
both conduct which does and does not qualify as a violent felony under § 924(e):
section 14:62 of the Louisiana Revised Statutes defines simple burglary as “the
unauthorized entering of any dwelling, vehicle, watercraft, or other structure,
moveable or immovable, or any cemetery, with the intent to commit a felony or any
theft therein[.]” Thus, the court properly looked to the additional judicial documents
when it weighed whether Soileau’s actions giving rise to the two contested
convictions fell within the part of the statute that criminalizes entry into a building
or structure. See United States v. Demint, 74 F.3d 876, 877 (8th Cir. 1996) (affirming
application of the modified categorical approach stating “[t]he Louisiana statute . . .
defines burglary more broadly than the generic definition in Taylor, because the
statute includes vehicles and watercraft”).

      Soileau further argues that even if the district court correctly decided to use the
modified categorical approach, it could not rely solely on the change of plea
documents and charging documents when conducting its analysis. Instead, Soileau

                                          -6-
contends the government should have provided the district court with the plea
agreements, the jury instructions, or other court records.

       When using the modified categorical approach to analyze whether a prior
conviction qualifies as a violent felony, courts can review the “charging document,
the terms of a plea agreement or transcript of colloquy between judge and defendant
in which the factual basis for the plea was confirmed by the defendant, or . . . some
comparable judicial record of this information.” Shepard v. United States, 544 U.S.
13, 26 (2005). And, although courts may consider any of these documents, they need
not review all of them. United States v. Vasquez-Garcia, 449 F.3d 870, 873 (8th Cir.
2006) (stating “where a charging document already narrows the overinclusive statute,
Shepard does not require the government to produce . . . additional documentation.”).

       In this case, the government provided the district court with the charging
document, change of plea document, and the plea agreement pertaining to the simple
burglary conviction listed in paragraph 44 of the PSR, as well as the charging
document and change of plea document pertaining to the simple burglary conviction
listed in paragraph 47 of the PSR. The district court reviewed the documents and
determined they contained sufficient information to show Soileau’s prior simple
burglary convictions qualified as violent felonies. Therefore, the court did not need
to analyze all of the documents permissible under the modified categorical approach.
Accordingly, the district court properly applied the modified categorical approach in
looking to the charging documents, plea agreement, and change of plea documents.

                                           B

      Soileau alternatively argues that even if the district correctly used the modified
categorical approach, the charging documents did not contain sufficient information
to show the convictions qualify as violent felonies.



                                          -7-
       The government is required to prove the defendant pleaded guilty to a
qualifying generic burglary offense under the ACCA by a preponderance of the
evidence, using permissible court documents under the modified categorical
approach. See United States v. Forrest, 611 F.3d 908, 913 (8th Cir. 2010) (stating
“the issue is whether the government proved by a preponderance of the evidence that
[the defendant] pleaded guilty to a qualifying burglary offense with judicial records
permitted under the modified categorical approach . . . .”).

      Count one of the charging document, which pertains to the simple burglary
conviction listed in paragraph 44 of the PSR, simply alleges Soileau “did willfully
and unlawfully commit simple burglary of a building and/or belonging to Jasper
Dupre, in violation of R.S. 14:62.” Soileau argues that according to this language he
could have committed a burglary of a “belonging,” such as a vehicle or watercraft,
which does not qualify as a violent felony. See Taylor, 495 U.S. at 599 (holding a
burglary must be of a building or structure in order to qualify as a violent felony for
ACCA purposes).

       While we acknowledge Soileau raises a valid point, we need not determine
whether the government sufficiently proved the acts charged in paragraph 44 qualify
as a violent felony. Soileau does not contest that the PSR describes two prior violent
felony convictions. Therefore, we need only find that one of the contested simple
burglary convictions qualifies as a violent felony for Soileau to have been convicted
of three violent felonies, thereby subjecting him to an enhanced sentence under the
ACCA.

       Count one of the charging document relevant to the simple burglary conviction
listed in paragraph 47 of the PSR alleges: “On or about July 06, 2006, . . . Louis
Soileau . . . committed the offense of R.S. 14:62 SIMPLE BURGLARY, by the
unauthorized entry of the property of another located at Town & Country Grocery
Store . . . .” The same charging document lists two other counts which also occurred

                                         -8-
on July 06, 2006: count two alleges Soileau “committed the offense of R.S. 14:67
THEFT, by committing theft of cigarettes, change and liquor of a value over $500.”;
and count three states Soileau “committed the offense of R.S. 14:56 SIMPLE
CRIMINAL DAMAGE TO PROPERTY to central unit and cash register with the
damage amounting over $500.” Soileau argues that according to the information
listed in the charging document, he could have committed burglary of a sales tent or
vehicle parked on the property of the Town and Country Store, rather than burglary
of a building or structure.

       A court should look to the charging document as a whole in order to determine
whether a defendant was charged with a qualifying burglary. See United States v.
Einfeldt, 138 F.3d 373, 378 (8th Cir. 1998) (stating the “charging document as a
whole shows that the defendant was charged only with a burglary of a building”)
(internal quotation marks and citation omitted). Therefore, in this case, count one
should be considered in conjunction with counts two and three to determine whether
Soileau was charged with burglary of a building or structure. The evidence indicating
Soileau entered property at the Town & Country Grocery store, damaged the “central
unit and cash register,” and stole “cigarettes, change and liquor,” is sufficient to prove
by a preponderance of the evidence that Soileau did in fact burglarize a building or
structure. Soileau contends that even considering those three facts together, it is still
possible he burglarized a sales tent, rather than a building. But preponderance of the
evidence simply means it is more likely than not that an event occurred; the standard
does not require the government to eliminate every plausible scenario. In looking to
the charging document as a whole, we conclude the crime listed in paragraph 47 of
the PSR counts as a violent felony.




                                           -9-
       Accordingly, because Soileau committed at least three prior violent felonies,
the district court properly sentenced him as an armed career criminal.3

                                        III

      The judgment and sentence are affirmed.
                     ______________________________




      3
      We have considered appellant’s remaining arguments and conclude they are
without merit.
                                       -10-
