                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4123



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CHARLES ARDINGER SPIGLER,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:06-cr-00389-RDB)


Submitted:   December 21, 2007            Decided:   January 15, 2008


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Alan R. L. Bussard, Towson, Maryland, for Appellant.        Rod J.
Rosenstein, United States Attorney, Gregory Welsh, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Charles Ardinger Spigler pled guilty to being a convicted

felon in possession of a firearm and ammunition, in violation of 18

U.S.C. §§ 922(g)(1), 924(e) (2000).              He was sentenced to the

statutory mandatory minimum sentence as an armed career criminal of

one   hundred   eighty    months’   imprisonment,     under    18    U.S.C.   §

924(e)(1) (2000).         Spigler appeals his armed career criminal

sentence.     Finding no error, we affirm.

             This court reviews the district court’s application of

the sentencing enhancements de novo and factual findings with

respect to sentencing for clear error.           United States v. Bollin,

264   F.3d   391,   415   (4th   Cir.   2001).    A   person   who   violates

§ 922(g)(1) and has three prior convictions for violent felonies or

serious drug offenses is an armed career criminal subject to

enhanced penalties.       See 18 U.S.C. § 924(e)(1).       Under § 924(e),

the definition of a “violent felony” is a crime punishable by

imprisonment for a term exceeding one year that is one of several

numerated offenses, including burglary, or a crime that otherwise

“involves conduct that presents a serious risk of physical injury

to another.”     18 U.S.C. § 924(e)(2)(B)(ii) (2000).

             Spigler challenges the court’s finding that his prior

Maryland fourth degree burglary conviction was a violent felony

under § 924(e).     In Taylor v. United States, 495 U.S. 575, 598-99

(1990), the Supreme Court held that “burglary,” for purposes of §


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924(e), is limited to “generic” burglary, defined as the “unlawful

or   unprivileged   entry    into,    or   remaining     in,   a   building   or

structure with intent to commit a crime.”                When the issue is

contested, and the district court must determine whether a prior

conviction constitutes a violent felony, the court generally must

“look only to the fact of conviction and the statutory definition

of the prior offense.”      Id. at 602; see James v. United States, 127

S. Ct. 1586, 1594 (2007) (“We consider whether the elements of the

offense are of the type that would justify its inclusion within the

residual provision [of the armed career criminal statute], without

inquiring into the specific conduct of this particular offender.”);

United States v. Mathias, 482 F.3d 743, 746 (4th Cir. 2007) (“Under

the categorical approach, we consider the nature of the offense as

defined by statute, not the conduct and circumstances underlying a

specific conviction.”), petition for cert. filed, 76 U.S.L.W. 3046

(U.S. July 12, 2007) (No. 07-61).            However, because some states

define burglary broadly, the district court in such cases may

examine the indictment or information to determine whether the

defendant was charged with entry of a building.                See Shepard v.

United States, 544 U.S. 13, 16-17 (2005).

            At the time of sentencing, the court had available to it

the statement of probable cause and court’s docket, which alleged

that Spigler “did unlawfully break and enter the storehouse of

[another]    with   the   intent     to    commit   (a    theft/a    crime    of


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violence/arson in the second degree) in violation of Art. 27, Sec.

30(a).”      However, Spigler pled guilty to a lesser charge of

burglary in the fourth degree under Md. Code Art. 27, § 32.               The

fourth degree burglary statute in effect in 1997 provided:

     (a)    Breaking and entering dwelling or storehouse.—

            (1)     A person may not break and enter the dwelling
                    of another.
            (2)     A person may not break and enter the
                    storehouse of another.

     (b)    Intent to commit theft.—A person may not be in or
            on the dwelling or storehouse of another or any
            yard, garden, or other area belonging to the
            dwelling or storehouse of another with the intent
            to commit theft.

     (c)    Possession of burglar’s tools.—A person may not
            possess burglar’s tools with the intent to use or
            permit the use of the tools in the commission of
            any violation of this subheading.

Md. Code. Ann. art. 27, § 32.             The charging documents do not

indicate    under    which   subsection    of   the   statute   Spigler   was

convicted.

            Because the Maryland statute defines three ways Spigler

could have committed burglary in the fourth degree under Art. 27,

§ 32, and under at least one of those definitions there is no

serious risk of physical injury, the district court could not use

the categorical approach of examining the statutory elements of the

crime to determine whether it was a crime of violence set forth in

Taylor.    See United States v. Brandon, 247 F.3d 186, 188 (4th Cir.

2001).    When the fact of a prior conviction does not categorically


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establish the nature of the prior offense, the sentencing court

generally may consider only “the charging document, the terms of a

plea agreement, the plea colloquy, the statutory definition, or any

explicit finding of the trial judge to which the defendant assented

or other admissions of the defendant” to resolve the issue. United

States v. Collins, 412 F.3d 515, 521 (4th Cir. 2005) (citing

Shepard, 544 U.S. at 25).

            However, here, the district court correctly utilized the

statement of probable cause to review the facts underlying the

burglary conviction. See United States v. Simms, 441 F.3d 313, 317

(4th Cir.), cert. denied, 127 S. Ct. 233 (2006) (finding the

district court’s reliance on an application for charge to determine

that   a   defendant’s   prior     conviction       qualified   as   a   crime   of

violence    under   §   924(e)     did    not    violate   Shepard   because     the

“application    .   .    .   was    later       explicitly   incorporated      into

Maryland’s statement of charges against [defendant].”); United

States v. Coleman, 158 F.3d 199 (4th Cir. 1998) (holding that,

under Maryland law, affidavit setting forth facts demonstrating

probable cause is part of the charging papers); and United States

v. Kirksey, 138 F.3d 120 (4th Cir. 1998) (same).                The facts in the

statement of probable cause were incorporated into Maryland’s

Information, stating the charges against Spigler to which he pled

guilty, and providing, as to the count Spigler pled guilty to, that

he “did unlawfully break and enter the storehouse of [another] in


                                         - 5 -
violation of Art. 27, Sec. 32.”         Thus, it is clear Spigler was

convicted under subsection (a)(2) of Art. 27, § 32, breaking and

entering the storehouse of another.         Because breaking and entering

does provide the requisite “serious potential risk of physical

injury to another” under § 924(e)(2)(B)(ii), see James v. United

States, 127 S. Ct. 1586, 1594-95 (2007), the district court did not

err   in   finding   the   prior   fourth   degree   burglary   conviction

qualified as a violent felony for the purposes of an enhanced

sentence under § 924(e).

             Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.


                                                                  AFFIRMED




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