                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 10, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-31024
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

STEPHEN P. SIMON,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                    USDC No. 3:02-CR-82-ALL
                      --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Stephen Simon appeals from a jury trial conviction for

possession of a firearm by a convicted felon in violation of

18 U.S.C. § 922(g)(1).   Simon argues that the district court

erred in imposing an Armed Career Criminal Act (ACCA) enhancement

pursuant to 18 U.S.C. § 924(e) to his sentence.    He also argues

that the ACCA enhancement constitutes cruel and unusual

punishment in violation of the Eighth Amendment.   Simon has

abandoned on appeal his argument that the application of the


     *
       Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
                             No. 04-31024
                                  -2-

sentencing guidelines violates the Supreme Court’s ruling in

Blakely v. Washington, 524 U.S. 296 (2004).    See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

     Simon argues that the predicate offenses used by the

district court did not fit the definition of a burglary to

warrant the application of the ACCA enhancement.   Because Simon

has preserved his argument in the district court, we review the

issue de novo.   See United States v. Montgomery, 402 F.3d 482,

485 (5th Cir. 2005).

     Louisiana defines simple burglary as “the unauthorized

entering of any dwelling, vehicle, watercraft, or other

structure, movable or immovable, or any cemetery, with the intent

to commit a felony or any theft therein.”   LA. REV. STAT. ANN.

§ 14:62 (West Supp. 2005).    Louisiana’s statute defines burglary

more broadly than the “generic burglary” of a building that is

contemplated by the ACCA.    See Shepard v. United States, 125

S. Ct. 1254, 1257 (2005); Taylor v. United States, 495 U.S. 575,

599 (1990).   The district court thus was required to determine

whether Simon’s simple burglary convictions constituted “generic

burglary” convictions.    See Shepard, 125 S. Ct. at 1258.

     Simon concedes that his prior conviction for burglary of

Crowley Junior High School qualifies as a “generic burglary” for

purposes of § 924(e).    The record reflects that he has at least

two prior burglary convictions that also meet the generic

burglary definition under § 924(e).    See Taylor, 495 U.S. at 599.
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                                -3-

Specifically, his burglaries of the businesses H & M Meatpacking

Company and Tiffani’s Lounge necessitate the existence of a

building or structure.   See id.   Accordingly, the district court

did not err in applying the ACCA enhancement.

     Simon renews his argument raised in the district court that

the application of the ACCA constitutes cruel and unusual

punishment in violation of the Eighth Amendment.

     The ACCA has not been held unconstitutional under the Eighth

Amendment.   See Harmelin v. Michigan, 501 U.S. 957, 965 (1991);

United States v. Yirkovsky, 259 F.3d 704, 706-07 (8th Cir. 2001);

United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000).

     AFFIRMED.
