United States v. Griffin ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5302
TODD ALPHONSO GRIFFIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CR-93-39)
Submitted: November 18, 1997
Decided: December 16, 1997
Before HALL, LUTTIG, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James H. Wade, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Brian L. Whisler, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Todd Alphonso Griffin appeals from his sentence imposed for vio-
lation of 18 U.S.C.A. §§ 922(g)(1), 924 (West Supp. 1997). We
affirm.
Griffin's only argument on appeal is that the district court erred in
enhancing his sentence under 18 U.S.C. § 924(e)(1) (1994). Specifi-
cally, he asserts that a 1987 conviction for felonious breaking and
entering of a commercial establishment in violation of N.C. Gen. Stat.
§ 14-54 (1993), was not a violent felony under the statute, especially
where the business was closed and no one was present on the prem-
ises. We find that Griffin's argument is erroneous under Taylor v.
United States, 495 U.S. 575, 598-99 (1990), which specifically holds
that conviction of any crime having the elements of unlawful entry
into a building or structure with the intent to commit a crime consti-
tutes burglary for purposes of a § 924(e) enhancement. See United
States v. Bowden, 975 F.2d 1080, 1083 (4th Cir. 1992). Because
North Carolina's definition of felonious breaking and entering con-
tains just these elements, we find that Griffin's 1987 conviction was
a prior "violent felony." We therefore conclude that the § 924(e)
enhancement was properly applied and we affirm Griffin's sentence.*
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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*Griffin has also filed a petition for mandamus in relation to this
appeal which requests that this court compel the district court to rule on
his motion to correct sentence under Fed. R. Crim. P. 35(c). Because the
district court now lacks jurisdiction to consider that motion, we deny
Griffin's petition. See United States v. DeMartino, 112 F.3d 75, 81 (2d
Cir. 1997).
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