                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 19, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 07-6138
 v.                                              (D.C. No. CR-06-105-001-T)
                                                        (W.D. Okla.)
 THOMAS ANTHONY STUPKA,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and HARTZ, Circuit Judges.


      Defendant-Appellant Thomas Anthony Stupka was convicted of possessing

a firearm after a felony conviction, 18 U.S.C. § 922(g)(1), and was sentenced to

180 months’ imprisonment and five years’ supervised release. He appeals the

district court’s sentence, specifically the application of an enhancement under the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). We have jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                    Background

      Mr. Stupka pawned a Smith and Wesson handgun on June 9, 2004. III R. at

4. He previously pled guilty to three counts of burglary II in 1991 after he broke

into apartments 358, 380, and 458 at the Railhead Apartments complex in

Oklahoma City by using a master key. Id. at 11; Aplee. Add. at 1-2. He stole

various household furnishings. Id. The Presentence Investigation Report

accordingly recommended that he be sentenced under 18 U.S.C. § 924(e)(1) as an

armed career criminal within the meaning of U.S.S.G. § 4B1.4 subject to a

minimum sentence of fifteen years’ imprisonment. 1 III R. at 6. Mr. Stupka

objected to the application of this enhancement in a sentencing memorandum and

at the sentencing hearing held on May 30, 2007. I R. Doc. 31 at 1; II R. at 4. The

district court overruled his objection and sentenced Mr. Stupka to a term of

imprisonment at the bottom of his calculated sentencing guideline range of 180 to

210 months. II R. at 43.



                                    Discussion

      We review the district court’s application of a sentencing enhancement

under 18 U.S.C. § 924(e)(1) de novo. United States v. Moore, 401 F.3d 1220,

1226 (10th Cir. 2005). “[A] person has been convicted of burglary for purposes

      1
          Mr. Stupka’s offense level was 24 with a criminal history category of VI.
III R. at 6, 25. With the enhancement, his offense level was 33, resulting in an
advisory guideline range of 235 to 293 months. Id. at 25.

                                        -2-
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). In determining whether the

enhancement applies, a district court “determining the character of an admitted

burglary is generally limited to examining 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.” Shepard v.

United States, 544 U.S. 13, 16 (2005).

      Mr. Stupka challenges the enhancement on two grounds. First, he argues

that his three previous burglary convictions cannot be considered “violent

felon[ies]” “committed on occasions different from one another” as required

under § 924(e)(1) because he committed the burglaries on apartments under the

possession and control of the same people, on the same day, at the same address,

and by using a master key. Aplt. Br. at 11. Apparently, the apartments were

unoccupied and uninhabitable at the time because they were undergoing

renovation. II R. (5/30/2007 Sent. Tr.) at 15-16, 20. Second, he argues that the

circumstances surrounding his prior burglary convictions were impermissibly

found by the district judge and should have been submitted to a jury under the

Sixth Amendment. Id. at 13.

      Neither of Mr. Stupka’s arguments persuade us. With respect to his first

                                         -3-
argument, we simply note that the definition of “violent felony” for the purposes

of § 924(e)(1) includes “any crime punishable by imprisonment for a term

exceeding one year that . . . is burglary.” 18 U.S.C. § 924(e)(2)(B). Mr. Stupka

was convicted of three counts of burglary meeting the elements explained in

Taylor, 495 U.S. at 599 and therefore committed three violent felonies. Aplee.

Add. at 1-2.

      He also committed these three burglaries “on occasions different from one

another.” 18 U.S.C. § 924(e)(1). Our precedent is clear on this point. In United

States v. Tisdale, we interpreted § 924(e)(1) within the context of a defendant

who committed three burglaries on the same date after breaking into a shopping

mall. 921 F.2d 1095, 1098 (10th Cir. 1990). The defendant burglarized two

private businesses and a post office within the mall on a single night. Id. He was

tried and convicted of three counts of burglary. Id. We held that “the defendant

could not simultaneously burglarize three separate businesses” for the purposes of

§ 924(e)(1) because he chose to burglarize two additional businesses after

burglarizing the first and had to physically break and enter three separate

structures to commit the burglaries. See id. at 1099. The defendant’s sentence

was therefore properly enhanced under § 924(e)(1). See id.; see also United

States v. Michel, 446 F.3d 1122, 1134 (10th Cir. 2006) (“In affirming the district

court, we are governed by our ruling in Tisdale.”).

      The district court correctly determined, based upon the information and

                                        -4-
judgment for Mr. Stupka’s burglary convictions, that his case is not different than

Tisdale in any meaningful way. II R. (5/30/2007 Sent. Tr.) at 23-25. After he

chose to burglarize one apartment, he had to choose to burglarize another,

regardless of whether he might have used the master key to open all three doors

before removing the items from each apartment. Mr. Stupka could not have

simultaneously burglarized all three apartments. In addition, although the

apartments were in the same complex (much like the businesses and post office in

Tisdale), he had to “break and enter” each apartment separately. There simply is

no question that Mr. Stupka committed three violent felonies “on occasions

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

      Moreover, Mr. Stupka is not entitled to a jury trial to determine the

circumstances surrounding his prior burglary convictions, including whether the

burglaries were “violent felon[ies]” or were “committed on occasions different

from one another.” Id. The Supreme Court held in Almendarez-Torres v. United

States that recidivism does not need to be proven to a jury beyond a reasonable

doubt. See 523 U.S. 224, 239 (1998). The Court reaffirmed this holding in

Apprendi v. New Jersey when it concluded that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. 466, 490 (2000) (emphasis added). Almendarez-Torres remains

good law despite Justice Thomas’s statement that a majority of the Court is

                                        -5-
prepared to overturn it. See Shepard, 544 U.S. at 27-28 (Thomas, J., concurring).

If there is to be any change in the law in this area, it cannot come from us. See

id.; see also Moore, 401 F.3d at 1224 (“Although the Court may overrule

Almendarez-Torres at some point in the future, it has not done so, we will not

presume to do so for the Court, and we are bound by existing precedent to hold

that the Almendarez-Torres exception to the rule announced in Apprendi and

extended to the Guidelines in Booker remains good law.”).

      AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                         -6-
