          Case: 15-12302   Date Filed: 02/10/2016   Page: 1 of 9




                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-12302
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:14-cr-14008-JEM-1



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

versus

WILLIAM A. TENDRICH,
a.k.a. "Tat",



                                            Defendant - Appellant.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                           (February 10, 2016)
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Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      William Tendrich pled guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1), and possessing a firearm with an obliterated

serial number, in violation of 18 U.S.C. § 922(k). The district court found that Mr.

Tendrich qualified for a sentencing enhancement under the Armed Career Criminal

Act, 18 U.S.C. § 924(e), based on his prior felony convictions for breaking and

entering a dwelling/home under Mass. Gen. Laws ch. 266, §§ 16 and 18. Mr.

Tendrich does not dispute that those crimes—which were charged in grand jury

indictments in Massachusetts—qualify as violent felonies under the ACCA. He

asserts instead that he actually pled guilty to lesser offenses as part of a plea deal.

This appeal, from the sentence of 180 months’ imprisonment imposed by the

district court, presents a single question: whether the government demonstrated by

a preponderance of the evidence that Mr. Tendrich pled guilty to three ACCA-

qualifying offenses. After careful review of the record and briefs, we affirm.

                                          I

      In relevant part, the ACCA provides that a person who violates 18 U.S.C. §

922(g) and has three previous violent felony convictions, committed on different

occasions from one another, is subject to a minimum term of 15 years’

imprisonment. See 18 U.S.C. 924(e)(1). A violent felony is any crime punishable


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by a term of imprisonment exceeding one year that: “(i) has as an element the use,

attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to

another.” Id. § 924(e)(2)(B).

      To qualify as a violent felony under the ACCA, the statutory elements of the

offense must comport with the generic definition of the offense. See Descamps v.

United States, 133 S. Ct. 2276, 2281 (2013). Thus, a burglary conviction will only

qualify as a violent felony under the ACCA if it has the basic elements of generic

burglary, which the Supreme Court has defined as the “unlawful or unprivileged

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

Id. at 2283 (citation omitted).

      There are two approaches for determining whether a conviction meets the

generic definition of burglary. See United States v. Howard, 742 F.3d 1334, 1342

(11th Cir. 2014). Under the categorical approach, courts look only to the statutory

elements of the prior offense to determine whether they are the same as or more

narrow than those of the generic offense, in which case the prior conviction can

serve as an ACCA predicate. See Descamps, 133 S. Ct. at 2283. Under the

modified categorical approach, courts may look beyond the statutory elements and

consider a limited class of documents to determine whether the prior conviction


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meets the generic definition.     Id. at 2283–84.     Those documents, known as

Shepard documents, include the charging document, the plea agreement, the

transcript of the colloquy between a judge and a defendant in which the factual

basis for the plea was confirmed by the defendant, or “some comparable judicial

record of this information.” Shepard v. United States, 544 U.S. 13, 26 (2005). In

Descamps, the Supreme Court clarified that the modified categorical approach

applies only where the statute in question is divisible, meaning that it sets out one

or more elements in the alternative, and is to be used only to determine which of

the statute’s alternative elements formed the basis of the defendant’s conviction.

See Descamps, 133 S. Ct. at 2281, 2293.

                                          II

      We review de novo whether a conviction constitutes an ACCA violent

felony.   See United States v. Braun, 801 F.3d 1301, 1303 (11th Cir. 2015).

Additionally, we review factual findings made at sentencing for clear error. See

United States v. Lebowitz, 676 F.3d 1000, 1015 (11th Cir. 2012). Clear error will

be established only if we are left with “a definite and firm conviction that a mistake

has been committed.” United States v. Maxwell, 579 F.3d 1282, 1305 (11th Cir.

2009). The government bears the burden of establishing the facts necessary to

support a sentencing enhancement by a preponderance of the evidence. See United

States v. Weeks, 711 F.3d 1255, 1261 (11th Cir. 2013).


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                                         III

      Because we write for the parties, we assume familiarity with the underlying

facts of the case and recite only what is necessary to resolve this appeal.

      Mr. Tendrich pled guilty to one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a

firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). In

preparing the presentence investigation report, the probation officer determined

that Mr. Tendrich was subject to a mandatory minimum sentence as an armed

career criminal because he had four prior ACCA-qualifying convictions in

Massachusetts: one conviction for breaking and entering in the nighttime and three

convictions for breaking and entering in the daytime.

      Mr. Tendrich objected to his designation as an armed career criminal, and

specifically to the probation officer’s reliance on his four Massachusetts

convictions for breaking and entering into a dwelling as ACCA predicates.

According to Mr. Tendrich, the breaking and entering charges had been reduced as

part of a plea bargain. The government responded that the four convictions for

breaking and entering into a dwelling were convictions for generic burglary, and

thus violent felonies under the enumerated crime of burglary in 18 U.S.C. §


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924(e)(2)(B)(ii). In the alternative, the government argued that the convictions

were violent felonies under the residual clause of § 924(e)(2)(B)(ii). According to

the government, there was nothing to suggest that Mr. Tendrich had pled guilty to

some other lesser offense. The district court found that the prior convictions

qualified as violent felonies under both the “enumerated offenses” and “residual”

clauses of the ACCA and sentenced Mr. Tendrich to a 180-month term of

imprisonment.

      After Mr. Tendrich was sentenced, the Supreme Court struck down the

residual clause of the violent felony definition in the ACCA as unconstitutionally

vague. See Johnson v. United States, 135 S.Ct. 2551 (2015). As a result, Mr.

Tendrich’s prior felony convictions qualify as predicate offenses under the ACCA

only if they fall under the “enumerated offenses” clause of the violent felony

definition.

      At the time Mr. Tendrich was convicted, Massachusetts had a divisible

burglary statute that defined burglary more broadly than the generic definition of

the crime, criminalizing unlawful entries into homes, watercraft, and motor

vehicles. See Mass. Gen. Laws ch. 266, §§ 16 and 18. See also Descamps, 133 S.

Ct. at 2284 (explaining that the Massachusetts burglary statute is divisible).

Because the Massachusetts statute is divisible, we apply the modified categorical




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approach and resort to Shepard documents to determine whether the crimes for

which Mr. Tendrich was convicted qualify as ACCA predicates.

       At sentencing, the government produced four indictments specifying that

Mr. Tendrich was charged with breaking and entering a dwelling and listing the

occupants of each dwelling. Each indictment was paired with a clerk’s log, and

both the indictment and clerk’s log were labeled with a matching docket number,

nos. 95-1224 through 95-1227. The clerk’s logs show that Mr. Tendrich initially

pled not guilty to each charge, but later changed his pleas to guilty.                     The

documents establish the charge, the relevant elements of the charge, and that Mr.

Tendrich pled guilty. Because the offense of breaking and entering a dwelling

meets the generic burglary definition and carries a sentence exceeding one year, it

qualifies as an ACCA predicate.1

       Mr. Tendrich does not dispute that the indictments and clerk’s logs are valid

Shepard documents.        Rather, he contends that the log entries do not clearly

establish the crimes for which he was convicted. But the record reflects that he

pled guilty to the indictments, as charged, and it contains no evidence that he pled


       1
        Although Mr. Tendrich contends that the first breaking and entering charge only resulted
in probation and not a prison sentence of one year or longer, the ACCA merely requires that the
prior convictions be “punishable by imprisonment for a term exceeding one year.” 18 U.S.C. §
922(g) (emphasis added). The single conviction challenged by Mr. Tendrich on this ground,
breaking and entering at nighttime, is punishable by up to 20 years in prison. See Mass. Gen.
Laws ch. 266, § 16. That conviction, therefore, is a qualifying ACCA predicate.


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guilty to lesser offenses as part of a plea bargain. Based on that record, we see no

clear error in the district court’s conclusion that Mr. Tendrich pled guilty to the

breaking and entering charges listed in each indictment. 2

       Mr. Tendrich also argues that the district court violated his Fifth and Sixth

Amendment rights by enhancing his sentence using prior convictions that were

neither alleged in the indictment nor admitted by him during his plea.                 This

argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), which held the government need not prove beyond a reasonable doubt that

a defendant had prior convictions or allege those prior convictions in the

indictment in order to use those convictions to enhance a defendant’s sentence.

We have held that a district court may properly rely on a defendant’s prior

convictions to enhance his sentence and that Almendarez-Torres remains binding

law. See, e.g., United States v. Beckless, 565 F.3d 832, 846 (11th Cir. 2009).

       Mr. Tendrich further argues that the district court improperly made findings

of fact about a conviction rather than the fact of a conviction. This argument is

foreclosed, as Mr. Tendrich acknowledged, by United States v. Greer, 440 F.3d

1267 (11th Cir. 2006). We recognized in Greer that “implicit in the Shepard rule .

. . [is] a recognition that if the nature of the prior conviction can be determined


       2
          Although Mr. Tendrich did not have any burden to prove that the offenses were not
ACCA predicates, we note that he did not introduce any evidence to support his claim that he
pled guilty to lesser offenses.
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from [Shepard documents], under existing law the trial judge may make the

determination.” Greer, 440F.3d at 1275. Because we are bound by this prior

precedent, Mr. Tendrich’s argument fails.

                                        IV

      Because we conclude that the district court did not err in sentencing Mr.

Tendrich as an armed career criminal, we affirm his 15-year sentence.



      AFFIRMED.




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