United States v. Davis ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5237
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARLON LAMONT DAVIS,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. William L.
Osteen, Jr., District Judge. (1:08-cr-00037-WO-1)
Submitted: November 20, 2009 Decided: January 4, 2010
Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marc L. Resnick, Washington, D.C., for Appellant. Anna Mills
Wagoner, United States Attorney, Graham T. Green, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marlon Lamont Davis pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). Davis was sentenced under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)
(2006), to 180 months’ imprisonment. Davis appeals, arguing
that the district court erred in finding that his 1995 North
Carolina state conviction for breaking and entering into a
business qualified as a predicate offense for purposes of the
ACCA. Finding no error, we affirm.
In considering whether the district court properly
designated Davis as an armed career criminal, this court reviews
the district court’s legal determinations de novo and its
factual findings for clear error. United States v. Wardrick,
350 F.3d 446, 451 (4th Cir. 2003). A defendant is an armed
career criminal when he violates § 922(g)(1) and has three prior
convictions for violent felonies or serious drug offenses. 18
U.S.C. § 924(e)(1); U.S. Sentencing Guidelines Manual
§ 4B1.4(a). A violent felony is one that “has as an element the
use, attempted use, or threatened use of physical force against
the person of another, . . . is burglary, . . . or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(i)-(ii).
To determine whether an offense under state law falls within the
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definition of a violent felony, this court uses a categorical
approach, which “takes into account only the definition of the
offense and the fact of conviction.” United States v. Pierce,
278 F.3d 282, 286 (4th Cir. 2002). The particular label or
categorization under state law is not controlling. See Taylor
v. United States, 495 U.S. 575, 590-91 (1990). For purposes of
the ACCA, “a person has been convicted of burglary . . . if he
is convicted of any crime, regardless of its exact definition or
label, having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure, with
intent to commit a crime.” Id. at 599.
Under North Carolina law, “[a]ny person who breaks or
enters any building with intent to commit any felony or larceny
therein shall be punished as a Class H felon.” N.C. Gen. Stat.
§ 14-54(a) (2007). For purposes of the statute, a building
means “any dwelling, dwelling house, uninhabited house, building
under construction, building within the curtilage of a dwelling
house, and any other structure designed to house or secure
within it any activity or property.” N.C. Gen. Stat. § 14-54(c)
(2007). We have consistently held that a conviction under § 14-
54 for breaking and entering qualifies as generic burglary, and
thus qualifies as a predicate violent felony under the ACCA.
See United States v. Thompson, 421 F.3d 278, 284 (4th Cir.
2005); United States v. Bowden, 975 F.2d 1080, 1085 (4th Cir.
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1992). Therefore, we conclude the district court did not err in
sentencing Davis as an armed career criminal.
Accordingly, we affirm Davis’ sentence. 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
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