The opinion
[DO NOT PUBLISH]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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