UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4618
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BILLY RAY THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00198-RJC-1)
Submitted: August 20, 2015 Decided: September 9, 2015
Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Jill Westmoreland Rose, Acting
United States Attorney, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy Ray Thompson appeals his conviction and sentence
after pleading guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1)
(2012). In the district court, Thompson objected that his prior
North Carolina breaking or entering convictions were not violent
felonies under the Armed Career Criminal Act (ACCA) because the
North Carolina statute is broader than the generic definition of
burglary. The district court overruled Thompson’s objection and
sentenced him to the mandatory minimum 180 months in prison. On
appeal, he contends that North Carolina’s breaking or entering
offense is broader than generic burglary for the same reason as
the Maryland offense addressed in United States v. Henriquez,
757 F.3d 144 (4th Cir. 2014), and the district court violated
his Fifth and Sixth Amendment rights by sentencing him based on
facts not alleged in the indictment. We affirm.
We review the issue of whether a prior conviction qualifies
as a violent felony under the ACCA de novo. United States v.
Mungro, 754 F.3d 267, 270 (4th Cir.), cert. denied, 135 S. Ct.
734 (2014). In Mungro, the defendant contended that his prior
North Carolina breaking or entering convictions did not qualify
as ACCA predicate offenses “because the elements of ‘breaking or
entering’ apply to a broader range of conduct than the generic
definition of burglary.” Id. at 269-70. We held that the North
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Carolina statute, “as interpreted by the North Carolina Supreme
Court, sweeps no more broadly than the generic elements of
burglary.” Id. at 272. Because the issue of whether North
Carolina’s breaking or entering offense is broader than generic
burglary was contested and decided in Mungro, we conclude that
Thompson’s claim is foreclosed by Mungro. Cf. United States v.
Hemingway, 734 F.3d 323, 335 (4th Cir. 2013) (concluding that a
prior decision was not controlling precedent on the issue of
whether a conviction was categorically an ACCA violent felony
because that issue was not contested in the prior case).
In his second issue, Thompson contends that the district
court violated his Fifth and Sixth Amendment rights by imposing
an ACCA sentence based on facts not alleged in the indictment.
Because he makes this claim for the first time on appeal, we
review the claim for plain error. See United States v. Obey,
790 F.3d 545, 549-50 (4th Cir. 2015). We conclude that Thompson
fails to show any plain error by the district court. See United
States v. Span, 789 F.3d 320, 330-32 (4th Cir. 2015); United
States v. Thompson, 421 F.3d 278, 284-87 (4th Cir. 2005).
Accordingly, we affirm the district court’s judgment. 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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