of the state’s expansive definition of "building” to include "any structure, vehicle or watercraft used for overnight lodging of persons ... or an inclosed motor truck, or an inclosed motor truck trailer.” N.Y. Penal Law § 140.00(2). 9 . Lynch asserted that the district court's consultation of the facts underlying his attempted burglary conviction, as stated in his federal PSR, violated Taylor, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607, and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Shepard instructed .1995) (concluding district court may not use facts alleged in federal PSR prepared for current conviction to determine whether prior conviction was "crime of violence” under the Guidelines); United States v. Pearson, 77 F.3d 675, 677 (2d Cir.1996) (<HOLDING>). 10 . Although New York Penal Law § 265.03 was
holding remand not required where district court relied on federal psr that incorporated facts from state psr not objected to by defendant to determine prior conviction was controlled substance offense for purposes of career offender sentence enhancement under guidelines holding that district court may find facts to support both factors by adopting psr holding that defendant adopted facts found in the psr by not objecting holding that the career offender guideline could not directly apply when there was an unsentenced conviction but allowing the district court on remand to consider departing from the guidelines in order to sentence a defendant whose conduct delayed his convictions as if the career offender provision applied holding that the district courts reliance on the psr to characterize the defendants prior offense for enhancement purposes was error