UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4144
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN KIRKLAND MACK,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Mary G. Lewis, District Judge.
(6:14-cr-00462-MGL-1)
Submitted: December 29, 2015 Decided: February 4, 2016
Before KING, SHEDD, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Lora Blanchard, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Max B. Cauthen, III, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allen Kirkland Mack appeals his conviction and the 120-
month sentence imposed following his guilty plea to possessing
firearms and ammunition after sustaining a felony conviction, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e) (2012).
Mack’s attorney initially filed her brief pursuant to Anders v.
California, 386 U.S. 738 (1967), averring that there were no
nonfrivolous issues for appeal but asking this court to review
the reasonableness of Mack’s sentence. Although informed of his
right to file a pro se supplemental brief, Mack declined to do
so.
After conducting our Anders review of the record, we
identified the following nonfrivolous issue: what impact, if
any, United States v. McLeod, __ F.3d __, No. 14-4766, 2015 WL
6575673 (4th Cir. Oct. 30, 2015), has on the computation of
Mack’s sentencing range. * We directed the parties to file merits
briefs addressing this issue.
*In McLeod, this court held that South Carolina’s second-
degree burglary statute, see S.C. Code Ann. § 16-11-312(B)
(2003), read in conjunction with the statutory section that
defines the word “building” as any structure, vehicle,
watercraft, or aircraft where any person lodges or lives, where
people assemble for a variety of purposes, or where goods are
stored, see S.C. Code Ann. § 16-11-310(1) (2003), “provid[ed]
elements alternative to generic burglary,” and thus that the
district court could use the modified categorical approach to
determine McLeod’s “crime of conviction.” McLeod, 2015 WL
6575673, at *4. We vacated McLeod’s sentence and remanded his
(Continued)
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In her merits brief, counsel for Mack argues that, under
McLeod, Mack’s prior South Carolina third-degree burglary
convictions no longer qualify, categorically, as predicate
violent felonies under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). Counsel asks us to vacate Mack’s sentence and remand
this case to the district court for resentencing in light of
McLeod. The Government agrees and likewise asserts that Mack is
entitled to relief under McLeod. As discussed below, we affirm
Mack’s conviction but vacate his sentence and remand this case
to the district court for resentencing in light of McLeod.
First, although not raised as an issue in the Anders brief,
we have reviewed the transcript of Mack’s Fed. R. Crim. P. 11
hearing and conclude that the district court complied with the
requirements of Rule 11 in accepting Mack’s guilty plea.
Moreover, Mack did not raise any Rule 11 objections in the
district court, and any omissions from the Rule 11 colloquy do
not amount to plain error. See United States v. Vonn, 535 U.S.
55, 59 (2002) (holding that an otherwise unraised claim of Rule
11 error is reviewed for plain error); see also United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004) (ruling that, to
case for resentencing because the documents available for review
under the modified categorical approach did not conclusively
resolve whether McLeod was convicted of generic burglary. Id.
at *5-6.
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establish that a district court’s noncompliance with Rule 11
affected substantial rights, a defendant bears the burden of
showing “a reasonable probability that, but for the error, he
would not have entered the plea”).
Finally, our review of McLeod and the other pertinent
authorities confirms the parties’ position that Mack should be
resentenced in light of McLeod. Accordingly, we vacate Mack’s
sentence and remand this case to the district court for
resentencing on this basis. 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 IN PART,
VACATED IN PART,
AND REMANDED
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