                                                                 [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 11-14357            ELEVENTH CIRCUIT
                                        Non-Argument Calendar          MARCH 20, 2012
                                      ________________________           JOHN LEY
                                                                          CLERK
                           D.C. Docket No. 1:09-cr-00106-MHS-ECS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellee,

                                                versus

DANIEL FOUNTAIN,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (March 20, 2012)

Before CARNES, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         Daniel Fountain appeals his 15-year mandatory minimum sentence, which
the district court imposed under the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e). After review, we affirm.

                                         I.

      Fountain pleaded guilty to possessing a firearm after being convicted of a

felony, in violation of 18 U.S.C. § 922(g). The federal indictment that charged

Fountain listed five prior felonies under Georgia law, including a 2001 conviction

for a residential burglary and four 1997 burglary convictions that involved

churches. Fountain’s 1997 state burglary convictions resulted from charges that

he, “without authority and with the intent to commit a theft therein, entered

[several] building[s],” including Abundant Life Church (Count 1), East Crestwood

Baptist Church (Count 2), and Prince of Peace Lutheran Church on two separate

occasions (Counts 3 and 4).

      Fountain’s federal presentence investigation report applied the ACCA,

under which a defendant who violates 18 U.S.C. § 922(g) is subject to a 15-year

mandatory minimum sentence if he has three prior violent felony or serious drug

convictions. 18 U.S.C. § 924(e)(1). Fountain objected to the ACCA’s application,

arguing that the four 1997 burglary convictions did not qualify as violent felonies

under the ACCA, which requires burglary of a “building or structure,” because

they involved sheds on church property that were not designed for occupancy.

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Fountain’s counsel acknowledged that Fountain’s state plea colloquy established a

factual basis for that assertion only as to Count 1, but argued that because the

other counts also could have involved sheds, there was an insufficient factual basis

to establish that they were violent felonies.

      The district court overruled Fountain’s objection, finding that, in addition to

the 2001 conviction, all four 1997 convictions qualified as violent felonies. The

court concluded that, even if Fountain burglarized sheds at the churches, each shed

was a “building or structure” for purposes of the ACCA. The district court then

sentenced Fountain to the ACCA’s 15-year statutory minimum. This appeal

followed.

                                          II.

      We review de novo whether a conviction qualifies as a violent felony for

purposes of the ACCA. United States v. Day, 465 F.3d 1262, 1264 (11th Cir.

2006). A state law burglary offense is a violent felony under the ACCA if it

requires proof of “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, 598 (1990); see 18 U.S.C. § 924(e)(2)(B)(ii). If a

state law criminalizes conduct broader than what would constitute a violent felony

under the ACCA, a conviction under that statute nonetheless qualifies as an

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ACCA predicate offense if the conduct the defendant was actually found guilty of

satisfies the ACCA burglary elements. United Sates v. Rainer, 616 F.3d 1212,

1214-15 (11th Cir. 2010), cert. denied, 131 S. Ct. 968 (2011). To make this

determination, the district court should “‘consult[] the trial record-including

charging documents, plea agreements, transcripts of plea colloquies, findings of

fact and conclusions of law from a bench trial, and jury instructions and verdict

forms.’” Id. at 1215 (quoting Johnson v. United States, 130 S. Ct. 1265, 1273

(2010)).

      Georgia’s burglary statute is one of these broader statutes. See United

States v. Wade, 458 F.3d 1273, 1278 (11th Cir. 2006). Under Georgia law, a

person commits the offense of burglary when, “without authority and with the

intent to commit a felony or theft therein, he enters or remains within the dwelling

house of another or any building, vehicle, railroad car, watercraft, or other such

structure designed for use as the dwelling of another or enters or remains within

any other building, railroad, aircraft, or any room or any part thereof.” O.C.G.A. §

16-7-1(a). We must therefore determine which of Fountain’s five prior felony

burglary convictions matched the ACCA’s burglary elements by looking to the

records in those cases.

      We conclude that, even setting aside the Count 1conviction for burglary of

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the church shed, Fountain qualified for sentencing under the ACCA. It is

uncontested that Fountain’s 2001 burglary conviction was a violent felony. And

the indictment and plea colloquy for his 1997 burglary convictions indicate that,

for Counts 2, 3, and 4, Fountain “entered a building,” a church, without authority

and with intent to commit a theft therein. Thus, even without resolving whether

the burglary of a shed qualifies as a violent felony for purposes of the ACCA, four

of Fountain’s five prior convictions clearly qualify as such based on the

indictments and the 1997 plea colloquy. The district court therefore properly

applied the ACCA’s 15-year minimum to Fountain’s sentence.

      AFFIRMED.




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