United States v. Anthony Harris , 458 F. App'x 297 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4389
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY VONN HARRIS, a/k/a Anthony Vonne Harris,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00289-TDS-1)
Submitted: November 29, 2011 Decided: December 15, 2011
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Anthony Vonn
Harris pleaded guilty to possession of a firearm after having
previously been convicted of a crime punishable by a term of
imprisonment exceeding one year, in violation of 18 U.S.C.
§§ 922(g)(1), 924(e) (2006). The district court found Harris
qualified for sentencing pursuant to the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e), and sentenced Harris to the
statutory mandatory minimum term of 180 months’ imprisonment.
This appeal timely followed.
In his opening brief, Harris asserts that his case
should be remanded to allow the district court to reconsider the
armed career criminal designation in light of this court’s en
banc decision in United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011). Particularly, Harris complains that the record
lacked sufficient information regarding his prior record level
and whether he was sentenced within the presumptive range, both
of which were necessary to determine whether his prior North
Carolina convictions were for crimes punishable by more than one
year of imprisonment. In response, the Government argues that,
under the North Carolina Fair Sentencing Act, which was in
effect when Harris sustained three of the convictions identified
as ACCA predicates, these crimes were all punishable by more
than one year of imprisonment, independent of any findings
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regarding Harris’ recidivism. Thus, the Government advances,
Simmons is inapplicable to this case.
In his reply brief, which is submitted pursuant to
Anders v. California, 386 U.S. 738 (1967), counsel for Harris
suggests that there is no merit to Harris’ claim under Simmons,
but asks this court to review both his conviction and the armed
career criminal designation for any potential Simmons error.
Although advised of his right to do so, Harris has not filed a
pro se supplemental brief. For the following reasons, we
affirm.
I.
We first conclude that Harris’ conviction is valid.
Section 922(g)(1) prohibits the possession of a firearm by any
person “who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year.” 18
U.S.C. § 922(g)(1). As the Government points out, three of
Harris’ prior North Carolina convictions — two 1992 convictions
for breaking or entering and one 1994 conviction for assault
with a deadly weapon on a government official * — pre-date
*
According to his presentence report, Harris received a
nine-year suspended sentence on the 1992 breaking or entering
convictions and a five-year sentence on the assault conviction.
Harris did not dispute the facts relevant to these prior
convictions in the district court.
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enactment of North Carolina’s Structured Sentencing Act, which
was at issue in Simmons. See generally State v. Garnett, 706
S.E.2d 280, 288 (N.C. Ct. App. 2011) (explaining that the Fair
Sentencing Act “was repealed effective 1 October 1994 and
succeeded by the Structured Sentencing Act, N.C. Gen. Stat.
§§ 15A–1340.10 to –1340.33”). Breaking or entering is a Class H
felony, see N.C. Gen. Stat. § 14-54 (2009); State v. Salters,
308 S.E.2d 512, 515 (N.C. Ct. App. 1983), and pursuant to North
Carolina’s Fair Sentencing Act, the presumptive sentence for a
Class H felony was three years in prison. See State v.
Lawrence, 667 S.E.2d 262, 264 (N.C. Ct. App. 2008) (“Under the
Fair Sentencing Act, a Class H felony carried a maximum
punishment of ten years, with a presumptive term of three
years.”). Accordingly, either of the 1992 breaking or entering
convictions, for which Harris was sentenced to nine years of
imprisonment, suspended, qualifies as a proper predicate for the
§ 922(g) charge, and Simmons does not alter this conclusion.
Further, we have reviewed the transcript of Harris’ Fed. R.
Crim. P. 11 hearing and conclude that the district court
complied with the mandates of Rule 11 in accepting Harris’
guilty plea. We therefore affirm Harris’ conviction.
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II.
We next review the propriety of Harris’ armed career
criminal designation. Because Harris did not challenge his
armed career criminal status in the district court, this issue
is reviewed for plain error. See United States v. Slade, 631
F.3d 185, 189 (4th Cir.) (stating standard of review), cert.
denied, 131 S. Ct. 2943 (2011). “To prevail under this
standard, [Harris] must show that an error was made, is plain,
and affected his substantial rights.” Id. at 190. Only if the
error “affected the outcome of the district court proceedings”
will the error be viewed as affecting the defendant’s
substantial rights. United States v. Knight, 606 F.3d 171, 178
(4th Cir. 2010) (internal quotation marks omitted). Thus, “the
defendant must show that he would have received a lower sentence
had the error not occurred.” Id. Finally, “[t]he decision to
correct the error lies within our discretion, and we exercise
that discretion only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Id. at 177-78 (alteration in original) (internal
quotation marks omitted).
Under 18 U.S.C. § 924(e), if a defendant violates
§ 922(g) after sustaining three prior convictions for violent
felonies or serious drug offenses, the statutory mandatory
minimum term of imprisonment is fifteen years. 18 U.S.C.
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§ 924(e)(1). A violent felony is defined as a crime, punishable
by a term exceeding one year of imprisonment, that (a) “has as
an element the use, attempted use, or threatened use of physical
force against” another person; or (b) is burglary, arson, or
extortion; involves explosives; “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).
We have thoroughly reviewed the record and conclude
the district court properly determined that Harris’ prior North
Carolina convictions for felony breaking or entering and felony
assault with a deadly weapon on a government official qualified
as ACCA predicates. First, these North Carolina convictions
fall squarely within the parameters of 18 U.S.C. § 924(e)(2)(B).
See United States v. Bowden, 975 F.2d 1080, 1083-85 (4th Cir.
1992) (concluding that breaking or entering under North Carolina
law qualifies as “burglary”); see also United States v.
Thompson, 421 F.3d 278, 284 (4th Cir. 2005) (explaining that
Bowden addressed “why violations of the North Carolina [breaking
or entering] statute . . . are ‘violent felonies’ for ACCA
purposes” (internal citation omitted)). Further, that Harris
was indeed sentenced to greater than one year of imprisonment
for each of these convictions satisfies the statutory durational
requirement to qualify a prior conviction as a “felony.”
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Accordingly, we affirm the district court’s finding that Harris
qualified for sentencing under the ACCA.
In accordance with the requirements of Anders, we have
examined the entire record for any meritorious issues and have
found none. The statutory mandatory minimum sentence the court
imposed was procedurally and substantively reasonable. We thus
affirm the district court’s judgment. This court requires that
counsel inform Harris, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Harris requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Harris. 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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