UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4585
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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