UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4807
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN LEON SHULL,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-5117)
Submitted: September 28, 2005 Decided: November 23, 2005
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Opinion reinstated; sentence affirmed by unpublished per curiam
opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court on remand from the Supreme
Court. We previously rejected Steven Leon Shull’s Equal Protection
Clause argument and affirmed his sentence under the Armed Career
Criminal Act. United States v. Shull, No. 03-4807 (4th Cir.
Apr. 7, 2004) (unpublished). The Supreme Court vacated our
decision and remanded Shull’s case to us for further consideration
in light of United States v. Booker, 125 S. Ct. 738 (2005).
Because nothing in the Supreme Court's Booker decision requires us
to change our prior affirmance in this case, we reinstate our prior
opinion and affirm Shull’s sentence.
A defendant who violates 18 U.S.C. 922(g) (2000), and has
three prior convictions for a violent felony or serious drug
offense committed on different occasions is subject to a fifteen-
year minimum sentence. 18 U.S.C.A. § 924(e)(1) (West 2000 & Supp.
2005). In supplemental briefs, Shull contends that the enhancement
of his sentence based on the sentencing court’s finding that he had
the requisite number of prior violent felony offenses is contrary
to the holding in Booker. Specifically, Shull contends that the
facts supporting the application of § 924(e) were not charged in
the indictment and found by a jury, nor were they admitted by him.
He also contends that his convictions in North Carolina for
breaking and entering were neither felonies, nor violent felonies.
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Shull’s predicate offenses consisted of five prior
convictions in North Carolina for breaking and entering. He
contends that, in light of Blakely v. Washington, 542 U.S. 296
(2004), these convictions should not be deemed punishable by a
prison term exceeding one year, and therefore do not qualify as
felony convictions. This argument was rejected by this court in
United States v. Harp, 406 F.3d 242 (4th Cir. 2005) (holding that
Blakely did not alter ruling that North Carolina’s lowest level of
felonies are punishable by more than one year in prison), petition
for cert. filed, U.S.L.W. (U.S. July 29, 2005) (No. 05-
5887).
Shull also challenges the determination that his breaking
and entering convictions qualify as “violent” felonies. However,
a conviction in North Carolina for breaking and entering has been
held to satisfy the requirements of the statute. See 18 U.S.C.A.
§ 924(e)(2)(B)(ii); Taylor v. United States, 495 U.S. 575, 599
(1990); United States v. Bowden, 975 F.2d 1080, 1085 (4th Cir.
1992) (holding that conviction in North Carolina for breaking and
entering amounted to a “generic burglary” under § 924(e)(2)(B)(ii),
and constituted a predicate violent felony). Thus, we hold that
Shull had the necessary three predicate violent felony convictions.
Furthermore, we have recently held that a district
court’s finding that a defendant had qualifying felony convictions
that supported an armed career criminal designation does not
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violate United States v. Booker, 125 S. Ct. 738 (2005). See United
States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005); see also
United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005)
(“Booker did nothing to alter the rule that judges cannot depart
below a statutorily provided minimum sentence.”), petition for
cert. filed, U.S.L.W. (U.S. Aug. 23, 2005) (No. 05-6318).
Because on reconsideration of this case under Booker, we
find no error in Shull’s sentence, we reinstate our April 7, 2004
opinion and affirm Shull’s 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.
OPINION REINSTATED;
SENTENCE AFFIRMED
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