     Case: 11-30885     Document: 00511822117         Page: 1     Date Filed: 04/16/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 16, 2012
                                     No. 11-30885
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JERRY LEE CUTLEY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:10-CR-166-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Jerry Lee Cutley pleaded guilty to being a felon in possession of a firearm
and ammunition. His sentence was enhanced under the Armed Career Criminal
Act (ACCA) because the district court determined that he had at least three
prior convictions for violent felonies. 18 U.S.C. § 924(e). He received a 180-
month prison term. Cutley challenges his sentence, arguing that his prior
convictions should not qualify as violent felonies warranting an enhancement



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 11-30885

under the ACCA. The Government moved for summary affirmance, or, in the
alternative, for an extension of time to file a brief.
      Under the ACCA, a person who has been convicted of possessing a gun as
a felon is subject to a 15-year mandatory minimum sentence if he has three prior
convictions for violent felonies or serious drug offenses. § 924(e). A violent
felony includes certain enumerated crimes, including burglary, as well as any
crime that falls under the residual clause of the statute, i.e., one that “involves
conduct that presents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B)(ii). We review the legal conclusions underlying the district court’s
application of the ACCA de novo. United States v. Hawley, 516 F.3d 264, 269
(5th Cir. 2008).
      Cutley argues that his three prior convictions for simple burglary do not
amount to violent felonies. In Taylor v. United States, 495 U.S. 575 (1990), the
Supreme Court held that the generic definition of burglary for purposes of the
ACCA is “unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.” 495 U.S. at 599. The statute under
which Cutley’s convictions arose applies to unauthorized entry into not only
buildings or structures but also vehicles, watercraft, and cemeteries. LA. REV.
STAT. 14:62. Nonetheless, as Cutley concedes, the charging documents and the
transcripts of the guilty pleas from these cases, which we may take into account,
Shepard v. United States, 544 U.S. 13, 17-18, 26 (2005), reveal that he admitted
that all three of his burglary convictions involved unauthorized entry into a
building or structure with the intent to commit a theft while inside and thus
meet the generic definition of burglary. Accordingly, the district court properly
determined that these convictions are for violent felonies. Cutley acknowledges
that his argument fails under Taylor, but wishes to preserve it so that he may
urge the Supreme Court to revisit its decision.
      Because Cutley’s three prior convictions for burglary, an enumerated
offense, are sufficient to support the enhancement under the ACCA, we need not

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                                 No. 11-30885

address Cutley’s argument with respect to other convictions found by the district
court to also support the enhancement under the ACCA.
      The judgment of the district court is AFFIRMED. All pending motions are
DENIED.




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