United States v. Rollins , 47 F. App'x 236 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4044
FRANK ROLLINS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Falcon B. Hawkins, Senior District Judge.
(CR-00-267)
Submitted: July 23, 2002
Decided: September 27, 2002
Before NIEMEYER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Melisa W. Gay, Mt. Pleasant, South Carolina, for Appellant. J. Strom
Thurmond, Jr., United States Attorney, Derk Van Raalte, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ROLLINS
OPINION
PER CURIAM:
Frank Rollins pled guilty to a superseding criminal information
charging him with possession of a firearm by a felon. See 18 U.S.C.
§ 922(g)(1) (2000). Rollins, sentenced to 188-months’ incarceration
followed by three years’ supervised release, challenges several facets
of his sentencing. Rollins’ arguments on appeal focus on whether the
district court properly concluded he qualified for sentencing under the
Armed Career Criminal Act of 1984, as amended, 18 U.S.C. § 924(e)
(2000) ("ACCA"), and whether the district court erred in resolving his
two factual objections to the presentence report ("PSR"). For the fol-
lowing reasons, we affirm.
Rollins’ contention that he does not qualify for sentencing under
the ACCA is meritless. Rollins’ PSR identifies four qualifying con-
victions, including two convictions for housebreaking involving busi-
nesses. While Rollins argues these two convictions are not "crimes of
violence" under § 924(e), the Supreme Court has found that a bur-
glary is a qualifying crime of violence and encompasses any "unlaw-
ful or unprivileged entry into . . . a building or other structure, with
intent to commit a crime." Taylor v. United States, 495 U.S. 575, 598
(1990). Because the elements of housebreaking satisfy this definition,
see State v. Miller, 337 S.E.2d 883, 885 (S.C. 1985), overruled on
other grounds by State v. Creech, 441 S.E.2d 635 (S.C. Ct. App.
1993), Rollins was properly eligible for sentencing as an armed career
criminal.
Based on Rollins’ eligibility for sentencing under the ACCA, we
find his remaining objections to be meritless. Rollins’ 188-month sen-
tence is less than the ACCA’s statutory maximum sentence of life
imprisonment. See United States v. Myers, 280 F.3d 407, 416 (4th
Cir.), petition for cert. filed, ___ U.S.L.W. ___, (U.S. June 3, 2002)
(No. 01-10603). As a result, the district court’s sentencing calcula-
tions do not implicate Apprendi v. New Jersey. See United States v.
Kinter, 235 F.3d 192, 198-202 (4th Cir. 2000), cert. denied, 532 U.S.
937 (2001).
Likewise, Rollins’ objection to the application of the two-level
offense level enhancement of § 2K2.1(b)(4) is meritless, as that provi-
UNITED STATES v. ROLLINS 3
sion applies even if Rollins was unaware the firearm he pled guilty
to possessing was stolen. See § 2K2.1, comment. (n.19); see also
United States v. Murphy, 96 F.3d 846, 849 (6th Cir. 1996) (holding
lack of mens rea requirement in § 2K2.1(b)(4) does not violate Due
Process).
Finally, Rollins’ factual objections to his presentence report
("PSR") are without merit. Rollins’ challenge to the PSR’s character-
ization of the individual shot during his possession of the firearm in
question as "the victim" is misplaced. Because it is undisputed an
individual was shot during Rollins’ possession of the firearm in ques-
tion, the characterization of that individual as a victim is immaterial.
Moreover, the district court explicitly stated it would not be influ-
enced by this characterization in imposing Rollins’ sentence and sen-
tenced Rollins at the bottom of the guidelines range.
Neither is the district court’s decision to allow reference in the PSR
to an expert’s opinion (that the firearm in question could not dis-
charge by accident) inherently erroneous. The district court found the
expert qualified to provide the opinion, and Rollins failed to either
challenge those qualifications or proffer any evidence contradicting
that opinion.
To the extent the district court may have erred in not identifying
the felony that Rollins’ possession of the firearm facilitated in order
to support an enhancement under § 4B1.4(b)(3)(A), or in not inquir-
ing further into the circumstances of that possession in order to sup-
port that enhancement, see United States v. Samuels, 970 F.2d 1312,
1316 (4th Cir. 1992), we find no plain error.* In order to demonstrate
plain error, Rollins would have to show that the error was prejudicial.
See United States v. Strickland, 245 F.3d 368, 376 (4th Cir.), cert.
denied, 122 S. Ct. 213 (2001). Because we conclude this error would
not affect Rollins’ 188-month sentence, we find no plain error.
Accordingly, because the district court properly concluded Rollins
was eligible for sentencing under the ACCA and that Rollins’ related
*Because Rollins did not assert this issue at sentencing or on appeal,
we review this issue for plain error. See Fed. R. Crim. P. 52(b); United
States v. Childress, 26 F.3d 498, 502 (4th Cir. 1994).
4 UNITED STATES v. ROLLINS
objections are meritless, we affirm Rollins’ sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED