United States v. Nice

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 28, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-13528
Non-Argument Calendar
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D.C. Docket No. 0:09-cr-60286-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN NICE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 28, 2011)
Before TJOFLAT, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Shawn Nice appeals his 180-month sentence after pleading guilty to being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal,
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he argues that the district court erroneously enhanced his sentence under the
Armed Career Criminal Act (“ACCA”), because his prior conviction under Fla.
Stat. § 810.02 for burglary of an unoccupied dwelling did not constitute a “violent
felony.”1
The ACCA defines a violent felony as any felony that, inter alia, “is
burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The Supreme Court has held that “a
person has been convicted of burglary for purposes of a § 924(e) enhancement if
he is convicted of any crime . . . 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, 495 U.S. 575, 599 (1990).
Nice does not dispute that his prior conviction contains these basic
elements. Rather, he argues that his prior conviction for burglary of an
unoccupied dwelling does not constitute generic burglary as defined under Taylor
because it does not pose the same risk of physical injury. However, that argument
is foreclosed by Taylor. See id. at 597–98 (explaining that generic burglary for
We review de novo whether a prior conviction is a “violent felony” within the meaning1
of the ACCA. United States v. Day, 465 F.3d 1262, 1264 (11th Cir. 2006).
2
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purposes of the ACCA “include[s] not only aggravated burglaries, but also run-of-
the mill burglaries involving an unarmed offender, an unoccupied building, and no
use or threat of force. . . . Congress thought ordinary burglaries, as well as
burglaries involving some element making them especially dangerous, presented a
sufficiently serious potential risk to count toward enhancement. We therefore
reject petitioner’s view that Congress meant to include only a special subclass of
burglaries . . . that involve especially dangerous conduct.”) (emphasis added;
quotation marks omitted). Because Nice’s prior conviction constitutes burglary
within the meaning of § 924(e)(2)(B)(ii), the district court did not err by finding it
to be a violent felony, and it therefore did not err by enhancing his sentence under
the ACCA. Accordingly, we affirm.2
AFFIRMED.
Thus, we need not address whether Nice’s conviction also constituted a violent felony2
under § 924(e)(2)(B)(ii)’s residual clause.
3
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