                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 10 2012

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-30013

              Plaintiff - Appellee,              D.C. No. CR-05-00104-FVS

  v.
                                                 MEMORANDUM *
MATTHEW ROBERT DESCAMPS,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of Washington
                Fred L. Van Sickle, Senior District Judge, Presiding

                          Resubmitted January 10, 2012 **
                               Seattle, Washington

Before: W. FLETCHER, GOULD, and TALLMAN, Circuit Judges.

       Matthew Descamps was found guilty of being a felon in possession of a

firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He had five

previous felony convictions. The Armed Career Criminal Act (“ACCA”) requires



  *
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
  **
       The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
a sentence of at least fifteen years if the defendant has three prior convictions for

violent felonies. 18 U.S.C. § 924(e)(1). The statute defines a violent felony as

“any crime punishable by imprisonment for a term exceeding one year . . . that has

as an element the . . . threatened use of physical force against the person of

another; or is burglary . . . .” § 924(e)(2). At sentencing, the district court

concluded that Descamps had three predicate violent felonies—robbery, burglary,

and felony harassment—and sentenced Descamps to 262 months in custody and

five years of supervised release, under the ACCA. Descamps appeals his sentence.

      Descamps first argues that all prior convictions that are used to enhance his

sentence must be charged in the indictment and submitted to a jury for a finding

beyond a reasonable doubt. The Supreme Court has held that prior convictions

that increase a sentence beyond a statutory maximum do not have to be proven

beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)

(holding that any fact other than the fact of a prior conviction must be charged in

an indictment, submitted to a jury, and proven beyond a reasonable doubt);

Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998) (prior

convictions need not be presented in an indictment). Our circuit precedent follows

the Supreme Court’s precedent. United States v. Grisel, 488 F.3d 844, 846–47 (9th

Cir. 2007) (stating that Almendarez-Torres is still good law and holding the ACCA


                                           -2-
does not require the government to plead and prove beyond a reasonable doubt a

defendant’s prior convictions).

      Descamps also argues that his prior felonies of burglary and felony

harassment do not qualify as violent felonies under the ACCA. Descamps pled

guilty to the crime of burglary in violation of California Penal Code (“CPC”)

§ 459. The generic definition of burglary is “an unlawful or unprivileged entry

into, or remaining in, a building or other structure, with intent to commit a crime.”

Taylor v. United States, 495 U.S. 575, 598 (1990). CPC § 459 defines burglary as

when a “person . . . enters [various structures] . . . with intent to commit grand or

petit larceny or any felony.” Burglary under § 459 is categorically broader than

generic burglary both because it includes burglary of a tent and because

“California's definition of ‘unlawful or unprivileged entry,’ unlike the generic

definition, permits a conviction for burglary of a structure open to the public and of

a structure that the defendant is licensed or privileged to enter if the defendant

enters the structure with the intent to commit a felony.” United States v. Aguila-

Montes de Oca, 655 F.3d 915, 944 (9th Cir. 2011) (en banc).

      We therefore apply the modified categorical approach. Id. We look at 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


                                          -3-
assented.” Shepard v. United States, 544 U.S. 13, 16 (2005). The information

charged that Descamps did “wilfully, unlawfully and feloniously enter a building,

to-wit: CentroMart.” During the plea colloquy, the prosecutor said that the factual

basis for the crime was the “breaking and entering of a grocery store.” Descamps

made no objection to this statement of factual basis.

      We hold that the guilty plea and conviction necessarily rested on facts that

satisfy the elements of the generic definition of burglary. The charging document

shows that Descamps pled guilty to entering a building, and the plea colloquy

establishes that he did so in an unlawful way (by “breaking and entering”) in the

generic sense. We reject as fanciful Descamps’s argument that “building” could

have meant a tent. The combination of facts stated in the information and plea

colloquy show that Descamps’s conviction necessarily rested on facts identifying

the burglary as generic. See Aguila-Montes, 655 F.3d at 937.

      We also reject Descamps’s claim that his Washington state conviction for

felony harassment is not a violent felony. The amended information charged

Descamps with knowingly threatening to kill a judge in violation of the Revised

Code of Washington § 9A.46.020(1)(a). Descamps pled guilty. Descamps argues

that a threat to kill does not necessarily have as an element a threatened use of

physical force. We reject this argument. A finding that a person threatened to kill


                                          -4-
necessarily requires a finding of “threatened use of physical force against the

person of another.” § 924(e)(2)(ii).

      The district court correctly held that Descamps had three prior violent

felonies and correctly applied the ACCA to Descamps.1

      AFFIRMED.




1
  Descamps has filed a supplemental brief with our permission in addition to those
filed by his attorney. Construing the pleading liberally, Descamps has asserted a
claim of ineffective assistance of counsel. But this type of claim is more properly
raised by collateral attack under 28 U.S.C. § 2255, because in such a proceeding
facts concerning the representation can be developed, and not on direct appeal, so
we decline to address the claim. United States v. Pirro, 104 F.3d 297, 299 (9th Cir.
1997).

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