Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

MEMORANDUM^* 

Appellant pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C.App. I Sec. 1202(a). His penalty was enhanced for being a "career criminal" under the terms of the statute, on the basis of two former burglary convictions and one former robbery conviction.

Appellant makes two arguments that the burglary convictions should not have been used to enhance his sentence, but both are foreclosed by the recent decision of the Supreme Court in Taylor v. United States, --- U.S. ----, 110 S. Ct. 2143 (1990).

Appellant's first argument is that the burglary statutes under which he was convicted do not include the elements of the common law definition of burglary, which this circuit held to be the proper definition of burglary under a later incarnation of the federal career criminal provisions (18 U.S.C. § 924(e). See, e.g., United States v. Chatman, 869 F.2d 525 (9th Cir. 1989). The Supreme Court in Taylor, however, overruled the Ninth Circuit authority on which appellant relies. See United States v. O'Neal, No. 89-10051, slip op. (9th Cir. August 9, 1990) (Chatman overruled). Under Taylor, the definition of burglary relevant to the federal enhancement is generic: "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor at 2158.

Appellant's second argument is that because both California and Oregon burglary statutes include conduct, such as vehicular burglary, that would not fit the definition of burglary under the federal career criminal statute, his convictions do not count. He argues that the court must look to the elements of the state burglary statute, not the underlying facts, to determine whether the enhancement applies. The Supreme Court in Taylor also addressed this issue, holding that while generally the trial court must look only to the fact of conviction and the statutory definition of the prior offense, there is a limited exception for

a narrow range of cases where a jury was actually required to find all the elements of generic burglary ... if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.

Id. at 2160. The indictments for both the California and Oregon burglaries reflect the necessary elements of generic burglary, as both recite that the appellant entered a building with the intent to commit a crime. E.R. 73 and 78. The appellant pled guilty to the California burglary as charged. E.R. 74-76. A jury found appellant guilty of the Oregon burglary. E.R. 79. As all the elements of generic burglary are shown, the burglaries were therefore properly counted. See United States v. O'Neal, No. 89-10051, slip op. 8585-86 (9th Cir. August 9, 1990).

AFFIRMED.