Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^** 

Andrew William Walker appeals the district court's denial of his Fed. R. Crim. P. 35(a) motion for correction of his sentence following his conviction on 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 an illegal firearm in violation of 26 U.S.C. § 5861.¹  Walker contends that the district court erred by sentencing him to fifteen years imprisonment as an armed career criminal because two of his prior California second degree burglary convictions are not "violent felonies" for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

The district court's interpretation and application of the Armed Career Criminal Act is reviewed de novo. United States v. O'Neal, 910 F.2d 663, 665 (9th Cir. 1990).

The Armed Career Criminal Act provides that a felon who is convicted of possessing a firearm and who has three prior convictions for a violent felony must be sentenced to a minimum of fifteen years imprisonment without the possibility of parole. 18 U.S.C. § 924(e) (1). A violent felony is defined as a crime punishable by imprisonment for more than one year involving the use, attempted use or threatened use of force against a person, or "is burglary ... or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e) (2) (B) (i)-(ii). " [A] person has been convicted of burglary for the purpose of a Sec. 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having 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, 110 S. Ct. 2143, 2158 (1990); see also O'Neal, 910 F.2d at 666.

Here, Walker concedes that his two prior first degree burglary convictions qualify as violent felonies for purposes of the Armed Career Criminal Act. Walker argues, however, that his two prior second degree burglary convictions do not qualify as violent felonies. This argument lacks merit. In both of the prior state second degree burglary indictments, Walker was charged with entry into a building with intent to commit a crime in violation of Cal.Penal Code Sec. 459. Walker pled guilty to both offenses. We have previously held that such second degree burglaries qualify as violent felonies for purposes of a sentence enhancement under section 924(e). See O'Neal, 910 F.2d at 666.

Thus, because Walker was convicted of at least three prior violent felonies under section 924(e), the district court did not err by sentencing him as an armed career criminal. See Taylor, 110 S. Ct. at 2158; O'Neal, 910 F.2d at 666.

AFFIRMED.