                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0156n.06
                           Filed: March 19, 2008

                                           06-6400

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
PAUL THOMAS McGOVNEY,                          )   EASTERN DISTRICT OF KENTUCKY
                                               )
       Defendant-Appellant.                    )




       Before: DAUGHTREY and McKEAGUE, Circuit Judges; GWIN,* District Judge.


       PER CURIAM. The defendant, Paul Thomas McGovney, was convicted on the

basis of his guilty pleas to two counts of being a felon in possession of a firearm in violation

of 18 U.S.C. § 922(g) and one count of receiving and disposing of a stolen firearm. He

was sentenced to the mandatory minimum term of 15 years under the provisions of the

Armed Career Criminal Act (ACCA or the Act), 18 U.S.C. § 924(e), and now appeals the

district court’s sentencing order, contending: (1) that the government’s failure to provide

written notice of its intent to request a sentence under the Act violated the Fifth and Sixth

Amendments as well as the ACCA itself; (2) that the sentencing judge's determination that




       *
         The Hon. James S. Gwin, United States District Judge for the Northern District of Ohio,
sitting by designation.
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United States v. McGovney

McGovney’s prior sentences qualified as "violent felonies" within the meaning of the Armed

Career Criminal Act violated his Sixth Amendment right to a jury trial; and (3) that one of

his burglary convictions did not qualify as a predicate offense under the Act. We find no

basis on which to overturn the sentence and affirm.


       The first two issues raised on appeal require little analysis or discussion. Formal

notice is not required under the Armed Career Criminal Act. See United States v. Mauldin,

109 F.3d 1159, 1162-1163 (6th Cir. 1997). Moreover, the defendant in this case had

actual notice almost two months prior to his sentencing hearing – at the very latest – in

compliance with the requirements of procedural due process. See Oyler v. Boles, 368

U.S. 448, 452 (1962) (“[A] defendant must receive reasonable notice and an opportunity

to be heard relative to [a] recidivist charge even if due process does not require that notice

be given prior to the trial on the substantive offense.”). Nor is he entitled to have a jury

determine that his prior convictions qualify as “violent felonies” under the Act. See James

v. United States, 127 S.Ct. 1586, 1600 & n. 8 (2007), in which the Supreme Court rejected

a Sixth Amendment challenge to an ACCA enhancement, calling the sentencing court’s

determination a matter of “statutory interpretation, not judicial factfinding.”


       In his third and final issue on appeal, McGovney challenges the district court’s

determination that his 1983 conviction for third-degree burglary under Kentucky Revised

Statute § 511.040 qualified as a predicate felony under the ACCA. See KY. REV. STAT .

ANN . § 511.040 (1999). Because there was no objection to the inclusion of this conviction


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United States v. McGovney

in the defendant’s presentence report and only a non-specific objection to application of

the Act at the sentencing hearing, we review the alleged defect in the sentence for plain

error. See United States v. Murphy, 241 F.3d 447, 450 (6th Cir. 2001) (claim of error is

subject to plain error review when the defendant “did not specifically object on the ground

which he now attempts to argue on appeal”). Under that standard, the defendant can

prevail only if there was error below that was plain and that affected the defendant’s

substantial rights and impugned the fairness, integrity, or public reputation of the judicial

proceedings. United States v. Webb, 403 F.3d 373, 380 (6th Cir. 2005).


       Our first step, therefore, is to determine whether the district court misinterpreted the

Kentucky burglary statute, as McGovney contends. Under the ACCA, the recidivist

enhancement applies to a defendant who has three or more prior convictions for violent

felonies. 18 U.S.C. § 924(e). Burglary is considered a violent felony for purposes of the

Act if it involves “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). Recognizing that the state statutory definitions of burglary vary, the Taylor decision

provides that “where the generic definition has been adopted, with minor variations in

terminology, then the trial court need find only that the state statute corresponds in

substance to the generic meaning of burglary.” Id. at 599. Here, McGovney argues that

the 1983 conviction does not qualify because the offense as set out in the Kentucky statute

is broader than the generic definition of burglary in Taylor.



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United States v. McGovney

       Without question, the language of the Kentucky burglary statute is at variance with

the generic definition of burglary in Taylor. Although the elements of the offense line up

with the generic definition, the Kentucky statute differs in that it includes within its definition

of “building” the following:


       “Building,” in addition to its ordinary meaning, means any structure, vehicle,
       watercraft or aircraft:
               (a) Where any person lives; or
               (b) Where people assemble for purposes of business,
               government, education, religion, entertainment or public
               transportation.


KY. REV. STAT . ANN . § 511.010(1) (1999). Because the statute covers break-ins of

vehicles, watercraft, and aircraft, the defendant contends that his conviction for entering

a “building” cannot meet the Taylor test without further evidence. In this regard, he relies

on the Supreme Court’s instruction in Shepard v. United States that “enquiry under the

ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute

necessarily admitted elements of the generic offense is limited to the terms of 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 to

some comparable judicial record of this information.” 544 U.S. 13, 26 (2005). Apparently,

the only document produced in this case was an “offense report” mentioned in the

presentencing report, which is not a qualifying document under Shepard.




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United States v. McGovney

       The government argues in response that we should hold that the Kentucky statute

is, in fact, generic under Taylor for purposes of the ACCA. Yes, the Kentucky statute

broadens the definition of “building” to include “vehicles, watercraft and aircraft” but, the

government points out, they qualify as a “building” only if used as residences or places of

assembly.    This argument has some appeal, viewed in terms of the Supreme Court’s

recent analysis in James:


       The main risk of burglary arises not from the simple physical act of wrongfully
       entering onto another’s property, but rather from the possibility of a face-to-
       face confrontation between the burglar and a third party – whether an
       occupant, a police officer, or a bystander – who comes to investigate.


127 S.Ct. at 1594. Nevertheless, like the Ninth Circuit in United States v. Grisel, 488 F.3d

844 (9th Cir. 2007), in which the en banc court reviewed a similar Oregon burglary statutory

to determine whether it could be considered “generic” for ACCA purposes, we are reluctant

to read the Act’s terminology too broadly. As the majority noted in Grisel, “Although a

vehicle or boat that has been adapted for accommodation may qualify as a building in

certain circumstances, it does not do so categorically.” Id. at 851, n. 5. Certainly, we

cannot say, in the words of Taylor, that the state statute’s definition of burglary has merely

“minor variations in terminology” in comparison to the Supreme Court’s definition of generic

burglary in that case. 495 U.S. at 599.


       A determination that, under the Kentucky statute, burglary does not qualify

categorically as a crime of violence would not, however, end the inquiry. We would still


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United States v. McGovney

need to consider whether the defendant’s conviction qualifies under the modified

categorical approach approved in Shepard. Although the record in this case does not

contain written documentation to support a conclusion that McGovney’s 1983 conviction

involved a building that would qualify under Taylor’s generic definition, the colloquy

between the district judge and the defendant can be considered under Shepard. The

transcript of the sentencing hearing shows that defense counsel conceded that his client’s

three prior burglary convictions “appear[ed] to meet the requirements under U.S. v. Taylor

and U.S. v. Shepard,” while at the same time indicating that he wished to “preserve the

objection” to ACCA sentencing. In addressing the district judge, the defendant took the

position that he did not “fit the category” of a career criminal, at the same time admitting

on the record that the 1983 burglary for which he was convicted was committed “on Heck’s

Dry Cleaning,” thereby corroborating the information in the presentence report. That

information established that “officers . . . dispatched to Heck’s Cleaners in reference to a

possible burglary . . . observed that a window had been broken out of the building” and

arrested the defendant, who was at the scene and was “identified by the witness as the

perpetrator.” In view of the defendant’s admission, we conclude that a remand for the

purpose of further substantiation is unnecessary.


       Under the unique circumstances of this case, we hold that the district court’s

reliance on the presentence report to qualify the conviction in question as a violent felony

under the ACCA was not plain error. Certainly, that reliance cannot be said to have

affected the defendant’s substantial rights or to have impugned the integrity of the

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United States v. McGovney

proceedings that resulted in the sentence imposed. For this reason, we AFFIRM the

judgment of the district court.




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