                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 6 2004
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                        No. 03-8086
    v.                                            (D.C. No. 03-CR-15-02-J)
                                                         (D. Wyo.)
    JAMES GARY RICE,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Judge, BARRETT, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.




         Defendant James Gary Rice pleaded guilty to conspiracy to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a), 846. His sentence under

21 U.S.C. § 841(b)(1)(A) was enhanced by two levels for being a “career

offender,” pursuant to USSG § 4B1.1, and it is this two-level enhancement that




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
defendant challenges on appeal. 1 We conclude that the sentencing court properly

determined that defendant’s 1992 burglary conviction was for burglary of a

dwelling and, as such, was a “crime of violence” as defined in USSG § 4B1.2(a).

Consequently, we affirm.

      Under the Sentencing Guidelines, a defendant is a “career offender” if three

conditions are met: (1) the defendant was at least eighteen years old when the

instant offense was committed; (2) the instant offense is a felony and is either a

crime of violence or a controlled substance offense; and (3) the defendant has at

least two prior felony convictions of either a crime of violence or a controlled

substance offense. USSG § 4B1.1(a). For purposes of the third career-offender

requirement of § 4B1.1(a), “crime of violence” is defined to include “burglary of

a dwelling” under state law that is punishable by imprisonment for a term

exceeding one year. USSG § 4B1.2(a)(2). The district court found that all three

conditions were met, the first two undisputedly, and the third based on two of

defendant’s prior convictions–a 1997 conviction for a controlled substance



1
        This appeal challenges a sentencing enhancement based on the fact of a
prior conviction, and, consequently, the Supreme Court’s recent decision in
Blakely v. Washington , ___ U.S. ___, 124 S. Ct. 2531 (2004), has no application
to this case. See id. 124 S. Ct. at 2536 (restating exception acknowledged in
Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), for sentencing enhancements
based on the fact of a prior conviction);   see also United States v. Marseille ,
377 F.3d 1249, 1257 n.14 (11th Cir. 2004) (noting that     Blakely is inapposite to
appeal challenging sentence enhancement based on prior convictions).

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                                          2
offense and a 1992 state burglary conviction. Application of the career-offender

enhancement increased the guideline sentencing range for defendant’s conviction

significantly.

      On appeal, it is the third § 4B1.1(a) condition that defendant challenges.

His position is that the government failed to prove that his 1992 burglary

conviction was for “burglary of a dwelling,” and therefore failed to satisfy the

crime-of-violence condition for a career-offender enhancement under § 4B1.1.

The propriety of the district court’s career-offender enhancement is a legal

question that we review de novo. United States v. Zamora, 222 F.3d 756, 763

(10th Cir. 2000).

      Generally, “[i]n determining whether a prior offense qualifies as a crime of

violence, we are ‘limited to examining the statutory elements of the crime.’”

Id. at 764 (quoting United States v. Bennett, 108 F.3d 1315, 1317 (10th Cir.

1997)). But if there is ambiguity under the statute, we can look beyond the statute

to the record of the prior proceeding, including the charging papers and findings

by the sentencing judge. Bennett, 108 F.3d at 1317; United States v. Farnsworth,

92 F.3d 1001, 1008 (10th Cir. 1996). Here, the district court correctly looked

beyond the statute, finding that the statute did not unambiguously determine the

question. The Wyoming burglary statute is broader than the guideline–it

criminalizes burglary of a dwelling, but also of a building or a vehicle. See Wyo.


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Stat. § 6-3-301(a) (1988). Consequently, it was necessary for the district court to

go beyond the statute to determine the nature of the prior conviction.

      In doing so, the district court recognized that the charging document was no

more informative than the statute–it merely restated the broad statutory language,

without specifying whether the burglary charged was of an occupied structure, a

building, or a vehicle. The district court found, however, that according to

Wyoming law, the probable cause affidavit that was attached to the information

established, by a preponderance of the evidence, that defendant’s 1992 burglary

conviction was for burglary of a dwelling. See United States v. Shinault,

147 F.3d 1266, 1278 (10th Cir. 1998) (holding that, when objection is lodged,

government must prove propriety of sentence enhancement by a preponderance of

the evidence).

      We conclude that the district court did not err in considering the probable

cause affidavit to determine the nature of the prior conviction. It was certainly

part of the record of the prior proceeding, and, as such, was properly considered,

see Bennett, 108 F.3d at 1317, but, more than that, it was actually part of the

charging documents. See Zamora, 222 F.3d at 764 (holding review of charging

documents appropriate); see also United States v. Smith, 10 F.3d 724, 734 (10th

Cir. 1993) (considering police report that was incorporated into charging papers

in determining whether prior burglary conviction was crime of violence for


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purposes of sentence enhancement); United States v. Nelson, 143 F.3d 373,

374-75 (7th Cir. 1998) (holding that district court may look only to conduct set

forth in information or indictment, then considering “Information Affidavit” in

concluding that prior conviction was for crime of violence for purposes of

§ 4B1.2). 2

       In addition to arguing that the affidavit is not within the purview of

documents relating to the prior proceeding that are appropriately considered for

purposes of the career-offender enhancement, defendant also challenges the

sufficiency and reliability of the affidavit itself. The district court’s factual

determinations based on the affidavit are reviewed only for clear error. See

Shinault, 147 F.3d at 1277 (“When reviewing sentence enhancements under the

sentencing guidelines, we accept the factual findings of the district court unless

they are clearly erroneous.”). The affidavit was sworn by the police detective

who investigated the incident. Contrary to defendant’s assertion, the information

contained in the affidavit is not akin to second-hand information contained in a

pre-sentence investigation report. The contents of the affidavit are the results of




2
       The sentencing transcript makes it clear that the district court was careful
to consider only the charging papers and other record documents; the court
specifically declined to consider a police case fact sheet because it could not be
sure that the document was attached to the information in the prior proceeding.

                                          -5-
the affiant’s personal investigation. As such, the district court’s determination

that the affidavit was sufficiently reliable is not clearly erroneous.

      We also reject defendant’s argument that the information contained in the

affidavit is, itself, ambiguous and does not establish burglary of a dwelling.

Based on the information contained in the affidavit, the district court found that

defendant pleaded guilty to burglary of a dwelling. The affidavit states that a

Mr. Willoughby was eating dinner with his two daughters in the dining room of

the Willoughbys’ house when he heard the front door being kicked in. When he

went to the front door, Willoughby found defendant, who held a small gun in

Willoughby’s face. Defendant struck Willoughby at least twice and demanded

money. When Willoughby said he had no money, defendant said they would “go

talk to Tracy,” Willoughby’s wife. Defendant then forced Willoughby to leave

his house, and defendant continued to assault Willoughby while they traveled to

the bingo hall in a vehicle. When they arrived at the bingo hall, Willoughby

found his wife, advised her his jaw was broken, and told her defendant wanted

money. When Willoughby’s wife ran home from the bingo hall to check on their

children, someone in the bingo hall told defendant to leave, which he did.

      Based on this information, defendant argues that the affidavit is ambiguous

because it does not clearly state what was burglarized–the Willoughbys’ home,

the bingo hall, or the vehicle in which Willoughby and defendant traveled to the


                                          -6-
bingo hall. To the contrary, we conclude that it was entirely reasonable for the

district court to find from the information contained in the affidavit that the crime

charged (and to which defendant pled) was burglary of a dwelling. In fact, given

the charge, it appears the only reasonable reading of the affidavit. Consequently,

there was no clear error.

      AFFIRMED.



                                                     Entered for the Court



                                                     James E. Barrett
                                                     Senior Circuit Judge




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