United States of America, Plaintiff-appellee, v. Danny Russell Blankenship, Defendant-appellant, 986 F.2d 1415 (4th Cir. 1993)

Danny R. Blankenship appeals from the district court's order imposing an enhanced sentence pursuant to 18 U.S.C.s 924(e) (1) (1988). The enhanced sentence was imposed after Blankenship was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1) (1988). Blankenship argues that the district court improperly considered his prior state convictions for burglary and breaking and entering as a basis for the enhanced sentencing. Because we find that Blankenship's indictment specifically charged him with unauthorized entry, we affirm the sentence.

Blankenship was charged by a federal grand jury and pled guilty to one count of violating 18 U.S.C. § 922(g) (1). The indictment noted that, if convicted, the United States would seek an enhanced sentence pursuant to 18 U.S.C. § 924(e) (1), which requires a minimum mandatory sentence of fifteen years imprisonment. Blankenship's criminal history was undisputed. Previously, he was convicted of two counts of burglary, see W. Va. Code § 61-3-11 (1989), and one count of breaking and entering. See W. Va. Code § 61-3-12 (1989).¹ 

After considering Blankenship's criminal record, the district court sentenced him as an armed career criminal, pursuant to § 924(e), to imprisonment for 235 months, supervised release for five years, a fine of $15,000, and a special assessment of $50.

Blankenship argues that the district court erroneously ruled that his West Virginia convictions constituted "burglaries" as defined by § 924(e). On appeal, he contends that the statutory definitions of these crimes do not fall within the definition of "generic" burglary outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990).²  We disagree. We need not resolve whether these statutes require an unlawful or unauthorized entry because it is clear that the indictments to which Blankenship pled guilty specifically allege unlawful entry.

Blankenship's previous convictions clearly fall within Taylor 's definition of burglary because his indictments contained specific allegation of unlawful entry. Blankenship argues that the district court erred in looking at his indictment for the elements of the charge. We disagree. The definition of burglary in Taylor is readily met where, as here, there was a breaking into a building. United States v. Bowden, 975 F.2d 1080 (4th Cir. 1992).

Although Taylor held that the generic definition of burglary was to be applied categorically, the Court also recognized that a district court could examine the charging paper and jury instruction to insure that the crime was within the Court's definition. Taylor, 495 U.S. at 602; see also United States v. Dunn, 946 F.2d 615, 620 (9th Cir.), cert. denied, 112 S. Ct. 401 (1991); United States v. Garza, 921 F.2d 59, 60 (5th Cir.), cert. denied, 112 S. Ct. 91 (1991); United States v. Lane, 909 F.2d 895, 902 (6th Cir. 1990), cert. denied, 111 S. Ct. 977 (1991). Since Blankenship's indictments specifically charged him with unlawful entry, his prior convictions clearly fall within the category of violent felonies under Taylor.

We therefore affirm the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED