U.S. v. Demint, 95-2690

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before McMILLIAN, WOLLMAN, and MURPHY; PER CURIAM
• Citation: 74 F.3d 876
• Parties: UNITED STATES of America, Appellee, v. Joseph W. DEMINT, Appellant.
• Docket Number: No. 95-2690,95-2690
• Decision Date: 26 January 1996

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74 F.3d 876 UNITED STATES of America, Appellee,
v.
Joseph W. DEMINT, Appellant. No. 95-2690. United States Court of Appeals,
Eighth Circuit. Submitted Jan. 19, 1996.
Decided Jan. 26, 1996.

Jeffrey J. Rosanswank, argued, Cape Girardeau, Missouri, for appellant.

Curtis O. Poore, argued, Cape Girardeau, Missouri (Edward L. Dowd, Jr., as United States Attorney, on the brief), for appellee.

Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

PER CURIAM.

Joseph W. Demint appeals his sentence as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. Sec. 924(e)(1), and U.S.S.G. Sec. 4B1.4(a). We affirm.

Following a jury trial, Demint was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Demint's indictment and presentence report (PSR) set forth the following three prior convictions as the basis for sentencing under the ACCA: (1) a 1979 Louisiana conviction for simple burglary; (2) a 1979 Florida conviction for attempted burglary and for possession of burglary tools; and (3) a 1980 Louisiana conviction for simple burglary. In

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objections to the PSR and again at sentencing, Demint claimed that he should not be sentenced under the ACCA. First, Demint argued that, because his 1980 Louisiana conviction was for burglary of a camp, the applicable Louisiana statute did not fit within the generic definition of burglary set forth in Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990); that the charging papers and final judgment did not indicate that the "camp" was considered a "structure"; and that the court should not consider the guilty-plea paper from the conviction to determine whether the conviction fell within the generic Taylor definition of burglary. Second, Demint argued that the 1979 Florida conviction for attempted burglary was not a "violent felony" for purposes of the ACCA. After determining that both convictions constituted "violent felonies" as defined in 18 U.S.C. Sec. 924(e)(2)(B)(ii), the district court ¹ overruled Demint's objections and sentenced him under the ACCA to 290 months imprisonment. Demint reiterates his arguments on appeal. We address each conviction in turn.

A. 1980 Louisiana Conviction For Simple Burglary.

"Burglary" is included in the definition of violent felonies that may constitute predicate offenses for a section 924(e)(1) enhancement. 18 U.S.C. Sec. 924(e)(2)(B)(ii). For purposes of section 924(e), "burglary" is "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, 495 U.S. at 599, 110 S.Ct. at 2158 (formulating a "generic" definition of burglary).

The Louisiana statute under which Demint was convicted defines burglary more broadly than the generic definition in Taylor, because the statute includes vehicles and watercraft. See La.Rev.Stat.Ann. Sec. 14:62 (West 1980); cf. United States v. Taylor, 932 F.2d 703, 707 (8th Cir.) (noting Missouri statute broader than Taylor definition where it included booths, tents, boats, vessels, and railroad cars), cert. denied, 502 U.S. 882,...