UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4936
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KYJAHRE HASAN RILEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:12-cr-00060-WO-1)
Submitted: September 30, 2013 Decided: October 18, 2013
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North
Carolina, for Appellant. Michael A. DeFranco, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kyjahre Hasan Riley appeals his 180-month sentence
following his guilty plea to being a convicted felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2006). In accordance with Anders v. California, 386 U.S. 738
(1967), Riley’s counsel has filed a brief certifying that there
are no meritorious issues for appeal but questioning whether
Riley was properly subject to sentencing under 18 U.S.C.
§ 924(e) (2006) (“ACCA”). Riley has filed a supplemental brief
in which he echoes and adds to counsel’s arguments. Riley also
alleges ineffective assistance of counsel and prosecutorial
misconduct and claims that the district court improperly limited
his opportunity to advocate on his own behalf at sentencing.
Finding no error, we affirm.
We review Riley’s sentence for reasonableness, using
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). We must first review for “significant
procedural error[s],” including improperly calculating the
Guidelines range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, sentencing under clearly erroneous facts, or
failing to adequately explain the sentence. Gall, 552 U.S. at
51; United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).
Only if we find a sentence procedurally reasonable may we
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consider its substantive reasonableness. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009).
Here, counsel and Riley raise numerous questions of
law with respect to Riley’s ACCA classification. We review such
claims de novo. See United States v. Gomez, 690 F.3d 194, 197
(4th Cir. 2012).
First, we reject Riley’s suggestion that the ACCA’s
residual clause is unconstitutionally vague. Sykes v. United
States, 131 S. Ct. 2267, 2277 (2011); United States v. Hudson,
673 F.3d 263, 268-69 (4th Cir.), cert. denied, 133 S. Ct. 207
(2012).
Further, we conclude the district court did not err in
its determination that Riley’s two North Carolina convictions
for fleeing or eluding arrest in a motor vehicle, in violation
of N.C. Gen. Stat. § 20-141.5 (2011), are crimes of violence.
Regardless of the aggravating circumstances involved, Riley’s
intentional, vehicular flight from law enforcement “pose[d] a
potential level of risk that is sufficient to render the offense
a violent felony.” Hudson, 673 F.3d at 268; see also Sykes, 131
S. Ct. at 2274 (stating that vehicular flight creates inherent
risk of violence).
Similarly, Riley’s North Carolina conviction for
second-degree burglary qualifies as an ACCA predicate. The
elements of second-degree burglary in North Carolina clearly
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track the definition of “generic burglary.” Descamps v. United
States, 133 S. Ct. 2276, 2283 (2013); State v. Key, 636 S.E.2d
816, 821 (N.C. Ct. App. 2006).
The district court also did not err in counting
Riley’s prior felonies as separate offenses under the ACCA.
Each was committed during a distinct episode of criminal
conduct. United States v. Davis, 689 F.3d 349, 358-59 (4th Cir.
2012).
Finally, Riley’s three prior offenses are properly
considered felonies despite the facts that they (1) were not
charged in Riley’s indictment, (2) were not admitted by Riley or
found by a jury, and (3) did not result in Riley actually
serving a sentence of imprisonment greater than one year. Riley
could have received more than one year of imprisonment for each
offense, and the fact of a prior conviction need not be
indicted, proven to a jury, or admitted by a defendant. Alleyne
v. United States, 133 S. Ct. 2151, 2160 n.1 (2013); United
States v. Simmons, 649 F.3d 237, 246-50 (4th Cir. 2011) (en
banc); United States v. Cheek, 415 F.3d 349, 352 (4th Cir.
2005). Accordingly, our review of the record leads us to
conclude that Riley’s sentence is procedurally and substantively
reasonable.
Turning to Riley’s claim of ineffective assistance of
counsel, the record on appeal does not clearly support Riley’s
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allegations and therefore they are best left for review under 28
U.S.C.A. § 2255 (West Supp. 2013). United States v. Benton, 523
F.3d 424, 435 (4th Cir. 2008). Moreover, we reject Riley’s
suggestion of prosecutorial misconduct, and the record belies
Riley’s contention that the district court improperly limited
his ability to raise objections during sentencing.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Riley, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Riley requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Riley. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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