UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4065
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID CORBETT STEVENS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:06-cr-00217-RBH-1)
Submitted: August 24, 2009 Decided: September 2, 2009
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
William I. Diggs, THE LAW FIRM OF WILLIAM I. DIGGS, Myrtle
Beach, South Carolina, for Appellant. Rose Mary Sheppard
Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, David Corbett Stevens
pled guilty to possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) & (e) (2006) (Count One), and stealing a firearm, in
violation of 18 U.S.C. § 924(l) (2006) (Count Two). ∗ The
district court found that Stevens qualified for an enhanced
sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), and sentenced him to 180 months’ imprisonment on Count
One and a concurrent 120 months’ imprisonment on Count Two.
Stevens timely appealed. Stevens’ counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Stevens filed a pro se supplemental brief, challenging Stevens’
designation as an armed career criminal.
Under § 924(e), a defendant convicted under § 922(g)
who has three prior convictions for either violent felonies or
serious drug offenses is considered an armed career criminal and
is subject to enhanced penalties. The district court relied on
four prior North Carolina state convictions to designate Stevens
as an armed career criminal: three felonious breaking and
entering convictions and a conviction for escape.
∗
We find that the district court substantially complied
with Rule 11 of the Federal Rules of Criminal Procedure in
accepting Stevens’ guilty plea.
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Counsel contends that two of the felonious breaking
and entering convictions should not have been counted as
predicate offenses for purposes of designating Stevens as an
armed career criminal because he was seventeen when he committed
the crimes. However, because Stevens was tried as an adult and
the offenses were punishable by more than one year in prison,
the fact that he was a juvenile at the time of the offenses is
not relevant for purposes of § 924(e). United States v. Lender,
985 F.2d 151, 155-56 (4th Cir. 1993).
Stevens argues in his pro se supplemental brief that
one of his felonious breaking and entering convictions did not
qualify as a predicate offense because it did not involve
breaking into a residence. This court has held that a North
Carolina conviction for breaking and entering is a violent
felony for purposes of the ACCA. United States v. Thompson, 421
F.3d 278, 283-84 (4th Cir. 2005). Accordingly, Stevens’
argument is without merit.
Next, Stevens argues in his pro se supplemental brief
that his prior larceny conviction does not qualify as a
predicate offense under the ACCA. However, the district court
did not count this conviction as a predicate offense.
Finally, Stevens challenges the district court’s
finding that his escape conviction qualified as a predicate
offense for purposes of designating him as an armed career
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criminal. Assuming without deciding that Stevens’ escape
conviction would not qualify as a predicate offense, Stevens
still has three predicate offenses that qualify him as an armed
career criminal, namely his three North Carolina state
convictions for felonious breaking and entering. We therefore
conclude that no constitutional error occurred in applying the
armed career criminal statute in this case.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Stevens’ convictions and sentence. This
court requires that counsel inform Stevens, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Stevens requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Stevens. 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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