UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5164
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN WAYNE MCDANIELS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:06-cr-00036-HFF-1; 7:08-cv-70005-HFF)
Submitted: July 16, 2009 Decided: August 14, 2009
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, A. Lance Crick, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Wayne McDaniels pled guilty to possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1)
(2006). The district court sentenced him to two hundred months’
imprisonment. McDaniels raises two issues on appeal. First, he
contends that the district court erred in failing to
sufficiently investigate the effect of prescribed medication on
McDaniels’s competence to enter a guilty plea. Second,
McDaniels asserts that the district court erred in counting his
prior conviction for burglary in the third degree as a predicate
offense, resulting in his designation as an armed career
criminal and the enhancement of his sentence under 18 U.S.C.
§ 924(e) (2006). We affirm.
I. Competence to Enter Guilty Plea
Because McDaniels did not move to withdraw his guilty
plea in the district court, our review of this issue is for
plain error. See United States v. Martinez, 277 F.3d 517, 527
(4th Cir. 2002). To establish plain error, McDaniels must “show
that an error occurred, that the error was plain, and that the
error affected his substantial rights.” United States v. White,
405 F.3d 208, 215 (4th Cir. 2005). *
*
Even if such a showing is made, the decision to correct
the error is within our discretion, based on a determination
that the error “seriously affects the fairness, integrity or
(Continued)
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Prior to accepting a defendant’s guilty plea, it is
the responsibility of the court to determine that the defendant
is competent to enter the plea. See United States v. Damon, 191
F.3d 561, 564 (4th Cir. 1999). In furtherance of this end, Fed.
R. Crim. P. 11 requires the court to personally inform the
defendant of, and ensure he understands, the possible
consequences of pleading guilty and the nature of the charges he
is facing. See Damon, 191 F.3d at 564. Thus, when an answer
given by the defendant during a plea colloquy “raises questions
about the defendant’s state of mind, the court must broaden its
inquiry to satisfy itself that the plea is being made knowingly
and voluntarily.” Id. at 565. With a medicated defendant, a
court should ascertain the effect, if any, of the medication on
the defendant’s ability to make a knowing and voluntary plea.
See id. (finding error in the district court’s failure to
determine the effect of defendant’s medication on defendant’s
ability to enter a voluntary plea).
During McDaniels’s plea colloquy, he stated that he
was taking two drugs for his mental health. However, it is
clear that the district court adequately ensured that
public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732 (1993) (internal quotation marks,
alteration and citation omitted).
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McDaniels’s medication did not interfere with his ability to
understand the proceedings and enter a knowing and voluntary
plea. The judge questioned McDaniels regarding the medication,
and McDaniels affirmed that he was sober, and knew where he was
and what was happening in the proceeding. Further, McDaniels’s
attorney, who advised the district court he had had “numerous
conversations” with McDaniels, opined that the medication did
not affect McDaniels’s competence, and McDaniels agreed with
this conclusion. Accordingly, we find that McDaniels’s first
contention is without merit.
II. Armed Career Criminal Designation
McDaniels’s second contention on appeal is that the
district court erred in counting his prior conviction for
burglary in the third degree as a predicate offense, resulting
in his designation as an armed career criminal and imposition of
an enhanced sentence. McDaniels asserts that the district court
incorrectly considered the burglary conviction to be a “violent
felony” under the ACCA, 18 U.S.C. § 924(e)(2)(b)(ii). Because
McDaniels failed to object to the application of this
enhancement during sentencing, our review is for plain error.
Olano, 507 U.S. at 732; White, 405 F.3d at 215.
A defendant is an armed career criminal when he
violates § 922(g)(1) and has three prior convictions for violent
felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). A
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violent felony is one that “has as an element the use, attempted
use, or threatened use of physical force against the person of
another,” or “is burglary, . . . or otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B). This definition
specifically includes burglary. 18 U.S.C. § 924(e)(2)(B)(ii).
To determine whether an offense under state law falls
within the definition of a violent felony, we typically use a
categorical approach, which “takes into account only the
definition of the offense and the fact of conviction.” United
States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002). The
particular label or categorization under state law is not
controlling. See Taylor v. United States, 495 U.S. 575, 590-91
(1990). If the state defines burglary more broadly, such as by
broadening the locus of the unlawful entry to include places
other than buildings, the categorical approach “may permit the
sentencing court to go beyond the mere fact of conviction.” Id.
at 602. For purposes of the ACCA, “a person has been convicted
of burglary . . . if he is convicted of any crime, regardless of
its exact definition or label, having the basic elements of
unlawful or unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime.” Id. at 599.
Generally, an offense will constitute burglary if the jury was
required “to find all the elements of generic burglary in order
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to convict the defendant, and the indictment or information and
jury instructions show that the defendant was charged only with
burglary of a building,” so “the jury necessarily had to find an
entry of a building to convict.” Id.
Under South Carolina law, “[a] person is guilty of
burglary in the third degree if the person enters a building
without consent and with intent to commit a crime therein.”
S.C. Code Ann. § 16-11-313 (2003). For purposes of South
Carolina’s burglary statutes, a building means “any structure,
vehicle, watercraft, or aircraft . . . where any person lives,
. . . people assemble, . . . [or] goods are stored.” S.C. Code
Ann. § 16-11-310 (2003). Therefore, because South Carolina
defines third-degree burglary more broadly than the generic
definition, we must determine whether the jury would have been
required to find McDaniels guilty of generic burglary in order
to convict him.
A district court is entitled to rely on a prepared
presentence investigation report (“PSR”) when determining
whether a prior crime qualifies as a predicate offense under the
ACCA. See United States v. Thompson, 421 F.3d 278, 285 (4th
Cir. 2005). The PSR prepared for McDaniels’s sentencing reveals
that the object of McDaniels’s prior burglary was a building;
therefore, it is clear that this offense constituted generic
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burglary for purposes of the ACCA. Thus, the district court did
not err in applying this enhancement.
Accordingly, we deny McDaniels’s pro se motion for
leave to file supplemental material and affirm the judgment of
the district court. We dispense with oral argument because the
facts and legal contentions are adequately expressed in the
materials before the court, and argument would not aid the
decisional process.
AFFIRMED
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