United States v. Hooper

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5504
FREDERICK LEONARD HOOPER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Chief District Judge.
(CR-94-37-F)
Submitted: October 15, 1996
Decided: November 15, 1996
Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, John S. Bowler, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Frederick Leonard Hooper appeals from the sentence imposed
upon him following his conviction on pleas of guilty to federal fire-
arms charges. Hooper received an enhanced sentence as an armed
career criminal pursuant to 18 U.S.C.A. § 924(e) (West Supp. 1996)
and USSG § 4B1.4.1 He now challenges that enhancement, contend-
ing that his prior state convictions should not be counted as predicate
"violent felonies" as defined in § 924(e). Finding no merit to this
argument, we affirm Hooper's sentence.
A person convicted under 18 U.S.C.A. § 922(g)(1) (West Supp.
1996), for possession of a firearm by a convicted felon, is subject to
the enhancement provision of § 924(e) if the person has three previ-
ous convictions for a violent felony or a serious drug offense. "Vio-
lent felony" is defined as a crime punishable by a prison term of more
than one year that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explo-
sives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
18 U.S.C.A. § 924(e)(2)(B) (1994). The Supreme Court determined
that Congress intended "burglary" as used in§ 924(e)(2)(B)(ii) in the
generic sense as it is used in most states' criminal codes. Taylor v.
United States, 495 U.S. 575, 598 (1990). The essential elements of
burglary for purposes of § 924(e)(2)(B)(ii) include "an unlawful or
unprivileged entry into, or remaining in, a building or other structure,
with intent to commit a crime." Id. (footnote omitted).
Under this definition of burglary, Hooper's convictions for break-
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1 United States Sentencing Commission, Guidelines Manual, § 4B1.4
(Nov. 1994).
2
ing or entering under North Carolina law, N.C. Gen. Stat. § 14-54(1993),2 which involved breaking into unoccupied residences and an
unoccupied motel room during the daytime and stealing various
items, would qualify as generic burglaries. See United States v.
Bowden, 975 F.2d 1080, 1085 (4th Cir. 1992) (convictions for break-
ing or entering under N.C. Gen. Stat. § 14-54 qualify as generic bur-
glaries under Taylor, and justify the § 924(e)(2)(B)(ii) enhancement),
cert. denied, 507 U.S. 945 (1993).
Hooper contends that because the offense of breaking or entering
could have been committed by either violent or nonviolent means, the
sentencing court should have considered the facts of his prior convic-
tions to determine whether the enhancement for violent felonies
should apply. He argues that because his offenses were committed in
the daytime and involved unoccupied buildings, there was no serious
risk of physical injury to another.
The Supreme Court, however, held that the enhancement provision
of § 924(e)(2)(B)(ii) requires the sentencing court to look only to the
statutory definition of the prior offenses and not to the particular facts
underlying those convictions. Taylor, 495 U.S. at 602. Only in a "nar-
row range of cases" may the sentencing court look beyond the fact of
conviction and the statutory definition and determine if the indictment
and jury instructions "actually required the jury to find all elements
of generic burglary." Id; see United States v. Cook, 26 F.3d 507, 509
(4th Cir.), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3312 (U.S. Oct.
17, 1994) (No. 94-6023).
The statutory language of the North Carolina offense of breaking
or entering, N.C. Gen. Stat. § 14-54, includes all of the elements of
generic burglary set forth in Taylor, 495 U.S. at 598, and is more nar-
rowly defined than burglary under § 924(e)(2)(B)(ii). Therefore, this
case does not fall within that "narrow range of cases" in which the
sentencing court should look beyond the fact of conviction or the stat-
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2 Section 14-54. Breaking or entering buildings generally.
(a) Any person who breaks or enters any building with intent
to commit any felony or larceny therein shall be punished as a
Class H felon.
3
utory language. See Taylor, 495 U.S. at 602; Bowden, 975 F.2d at
1084.
Because we find that the sentencing court correctly applied the cat-
egorical approach to determine that Hooper's prior breaking or enter-
ing offenses constituted generic burglaries for purposes of the armed
career criminal enhancement provisions of § 924(e) and USSG
§ 4B1.4, we affirm Hooper's sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
4