UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4135
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM ALLEN HESTER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:05-cr-00061-BO)
Submitted: September 20, 2006 Decided: October 16, 2006
Before MOTZ, TRAXLER, and KING, 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
William Allen Hester, Jr., pled guilty, without a plea
agreement, to one count of felon in possession of a firearm and one
count of possession of an unregistered machine gun, in violation of
18 U.S.C. §§ 922(g)(1), 924; 26 U.S.C. §§ 5841, 5861(d), 5871
(2000). The district court determined Hester satisfied the
requirements for enhancement under the Armed Career Criminal Act
(“ACCA”) and sentenced Hester to a total term of imprisonment of
180 months. We affirm.
On appeal, Hester contends the evidence was insufficient
to establish that his prior convictions were violent felonies under
the ACCA. As Hester raises this issue for the first time on
appeal, review is for plain error. See United States v. White, 405
F.3d 208, 215 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005). To
establish plain error, Hester must show that an error occurred,
that the error was plain, and that the error affected his
substantial rights. Id.
Hester argues the district court’s reliance on the
presentence report was erroneous as the report neither detailed the
documents used in its creation nor specified the state statute at
issue. However, we have previously determined that a district
court is entitled to rely on a presentence report that “bears the
earmarks of derivation from Shepard*-approved sources.” United
*
Shepard v. United States, 544 U.S. 13 (2005).
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States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005), cert.
denied, 126 S. Ct. 1463 (2006). The presentence report details
only that Hester was convicted of breaking into two businesses and
stealing various items. Because this information is of the type
found in approved sources, it does not plainly appear that the
district court erred by relying on the presentence report.
Further, it is readily ascertainable from the presentence
report that Hester was convicted of N.C. Gen. Stat. § 14-54, the
state statute proscribing breaking and entering buildings. Because
we have previously determined that a violation of § 14-54
constitutes a violent felony for ACCA purposes, see Thompson, 421
F.3d at 284-85, the convictions were properly used as ACCA
predicate offenses. Therefore, we conclude Hester has failed to
establish that the district court’s reliance on the presentence
report constituted plain error.
Hester also contends his sentence is unconstitutional
after Blakely v. Washington, 542 U.S. 296 (2004), because it was
enhanced based on prior convictions that were neither alleged in
the indictment nor found by a jury beyond a reasonable doubt.
Though Hester raised and preserved this issue in the district
court, his argument is foreclosed by controlling circuit precedent.
In United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir.), cert.
denied, 126 S. Ct. 640 (2005), we held that prior convictions used
as a basis for enhancement under the ACCA need not be charged in
the indictment nor proven beyond a reasonable doubt.
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Accordingly, we affirm Hester’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.
AFFIRMED
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