United States v. Hayes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4585

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

KENNETH RAY HAYES,

Defendant – Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00336-JAB-1)

Submitted: May 27, 2010 Decided: June 17, 2010

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Robert Albert Jamison Lang, Assistant United
States Attorney, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Kenneth Ray Hayes pled guilty pursuant to a plea

agreement to two counts of being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e) (2006).

The district court sentenced Hayes within his

properly-calculated advisory Sentencing Guidelines range to 204

months’ imprisonment on both counts, to be served concurrently.

On appeal, Hayes’ counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967). Hayes has also

submitted a pro se supplemental brief. Finding no error, we

affirm.

Hayes argues that he was improperly sentenced as an

armed career criminal because, following Begay v. United States,

553 U.S. 137 (2008), burglary of a commercial building, as

opposed to burglary of a residential building, is not a

qualifying predicate violent felony for purposes of 18 U.S.C.

§ 924(e). As Hayes concedes, the Supreme Court has decided this

issue adversely to his position. See Taylor v. United States,

495 U.S. 575, 598 (1990). A conviction in North Carolina for

breaking and entering has been held to satisfy the requirements

of the statute. See 18 U.S.C. § 924(e)(2)(B)(ii); United

States v. Bowden, 975 F.2d 1080, 1085 (4th Cir. 1992) (holding

that conviction in North Carolina for breaking and entering

amounted to a “generic burglary” under § 924(e)(2)(B)(ii), and

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constituted a predicate violent felony); see also United States

v. Thompson, 421 F.3d 278, 284 (4th Cir. 2005) (following Taylor

and finding breaking and entering under North Carolina law is

burglary). “[I]t is [the Supreme] Court’s prerogative alone to

overrule one of its precedents.” State Oil Co. v. Khan,

522 U.S. 3, 20 (1997). Accordingly, Hayes’ claim fails.

In his pro se supplemental brief, Hayes argues that

the district court erred in enhancing his sentence pursuant to

U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.4(b)(3)(A)

(2008) because, according to Hayes, convictions of commercial

burglary are not predicate crimes of violence for purposes of

the ACCA. As noted, burglary of a commercial building is a

predicate offense under the ACCA, and the district court,

therefore, did not err in applying the USSG § 4B1.4(b)(3)(A)

enhancement.

In accordance with Anders, we have reviewed the record

in this case, including the issues raised in Hayes’ pro se

supplemental brief, and have found no meritorious issues for

appeal. We therefore affirm Hayes’ conviction and sentence.

This court requires that counsel inform Hayes, in writing, of

the right to petition the Supreme Court of the United States for

further review. If Hayes 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

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representation. Counsel’s motion must state that a copy thereof

was served on Hayes.

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