UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4774
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES NOVIA FARRIOR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-03-356-H)
Submitted: September 8, 2006 Decided: October 11, 2006
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Novia Farrior pled guilty to being a convicted
felon in possession of a firearm, in violation of 18 U.S.C. §§
922(g)(1), 924 (2000), and was sentenced to 179 months in prison.
Farrior appeals his sentence, arguing that the district court erred
in sentencing him as an armed career criminal. Finding no
reversible error, we affirm.
As a preliminary matter, the Government has moved to
dismiss the appeal based on Farrior’s waiver of his right to appeal
as part of his plea agreement. Farrior contends, however, that his
appeal is not barred by the appeal waiver, citing United States v.
Bowden, 975 F.2d 1080 (4th Cir. 1992). We agree and find Farrior’s
challenge to his armed career criminal sentence, his only claim on
appeal, is outside the scope of his appeal waiver, and we deny the
Government’s motion to dismiss.
In considering whether the district court properly
designated Farrior as an armed career criminal, this court reviews
the district court’s legal determinations de novo and its factual
findings for clear error. United States v. Wardrick, 350 F.3d 446,
451 (4th Cir. 2003). Farrior’s argument that the district court
erred in sentencing him as an armed career criminal based on facts
not alleged in the indictment or found by a jury is foreclosed by
our recent decision in United States v. Thompson, 421 F.3d 278 (4th
Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006), in which we held
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that sentencing courts may rely on prior convictions to invoke the
enhancement provided by § 924(e)(1), even if the prior convictions
were not charged in the indictment or found by a jury, so long as
no facts extraneous to the fact of conviction need be decided. Id.
at 282-83.
Farrior does not dispute the fact of the prior
convictions, but does argue that there was insufficient evidence to
establish that his prior North Carolina breaking and entering
conviction was a violent felony as defined by 18 U.S.C. § 924(e)(1)
(2000). A violent felony under 18 U.S.C. § 924(e)(2)(B) “(i) has
as an element the use, attempted use, or threatened use of physical
force against the person of another; or (ii) is burglary . . . or
otherwise involves conduct that presents a serious potential risk
of physical injury to another.” In applying the armed career
criminal statute, this court uses a formal “categorical approach,”
looking only to the statutory definition of the predicate offense
and not to the particular circumstances underlying the conviction.
United States v. Hairston, 71 F.3d 115, 117 (4th Cir. 1995). Under
this approach, we must make “common-sense judgments about whether
a given offense proscribes generic conduct with the potential for
serious physical injury to another.” Id. (citations and internal
quotation marks omitted). Thus, we look to the crime in the
“abstract” to see whether the nature of the crime involves “serious
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potential risk of physical injury to another.” United States v.
Dickerson, 77 F.3d 774, 777 (4th Cir. 1996).
Farrior alleges that the Government failed to identify
the statute under which he was convicted for breaking and entering
and failed to present supporting records that describe the nature
of the offense. In addition, Farrior claims that the presentence
report contained only an unsubstantiated reference to the prior
breaking and entering conviction and failed to identify the source
of the information that the breaking and entering conviction
stemmed from Farrior breaking into a pawn shop. Burglary, for
Armed Career Criminal Act purposes, has been limited to “generic”
burglary, defined as the “unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit
a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990); see
also Bowden, 975 F.2d at 1083 (construing North Carolina burglary
convictions for § 924(e) purposes). “[A]n offense constitutes
‘burglary’ for purposes of a § 924(e) sentence enhancement if
either its statutory definition substantially corresponds to
‘generic’ burglary, or the charging paper and jury instructions
actually required the jury to find all the elements of generic
burglary in order to convict the defendant.” Bowden, 975 F.2d at
1084.
The presentence report in this case indicates that
Farrior was convicted of “Breaking and Entering, Larceny after
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Breaking and Entering,” in Cumberland County Superior Court,
Fayetteville, North Carolina, after breaking into a pawn shop on
June 23, 2001, and removing numerous firearms. The offense of
Breaking and Entering is defined in North Carolina as follows:
(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.
* * *
(c) As used in this section, “building” shall be
construed to include any dwelling, dwelling house,
uninhabited house, building under construction, building
within the curtilage of a dwelling house, and any other
structure designed to house or secure within it any
activity or property.
N.C. Gen. Stat. § 14-54 (2003). This court has held that a
violation of N.C. Gen. Stat. § 14-54 is “generic burglary,” and
constitutes a “violent felony,” as defined in 18 U.S.C.
§ 924(e)(2)(B)(ii), for purposes of sentencing a defendant as an
armed career criminal. Bowden, 975 F.2d at 1085; see also Taylor,
495 U.S. at 598-99. Farrior’s conviction falls under N.C. Gen.
Stat. § 14-54(a), because he broke and entered a pawn shop, a
building, with the intent to commit larceny. We therefore find the
district court properly found Farrior’s prior breaking and entering
conviction is a violent felony for purposes of sentencing him as an
armed career criminal.
Accordingly, we deny the Government’s motion to dismiss
and affirm the judgment of the district court. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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