                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4995


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHARLES ALLEN HALL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:09-cr-00019-MR-1)


Argued:   September 19, 2012                 Decided:   October 15, 2012


Before TRAXLER, Chief Circuit Judge; DUNCAN and DAVIS, Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished
opinion.   Judge Duncan wrote the opinion, in which Chief Judge
Traxler and Judge Davis joined.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Melissa Louise Rikard, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.   ON BRIEF: Claire J.
Rauscher, Executive Director, Angela Parrott, Assistant Federal
Defender, Cecilia Oseguera, Assistant Federal Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.  Anne
M. Tompkins, United States Attorney, Charlotte, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

            Appellant     Charles      Allen       Hall      appeals       his    conviction

and   sentence     on   one   count    of        possession      of    a    firearm    by   a

convicted felon in violation of 18 U.S.C. § 922(g)(1) on the

ground    that    state   authorities            violated       his   Fourth       Amendment

rights.    He further contends that the district court erroneously

admitted unduly prejudicial evidence.                     In the alternative, Hall

requests that we vacate the district court’s order requiring him

to reimburse court-appointed attorneys’ fees, as well as his

sentence under the Armed Career Criminal Act (the “ACCA”).                               For

the reasons that follow, we affirm Hall’s conviction.                               However,

we vacate the district court’s reimbursement order and remand

for resentencing as to that issue only.



                                           I.

                                           A.

            We briefly summarize the relevant facts.                             On April 8,

2008, Officer Calvin Helms of the Charlotte-Mecklenburg Police

Department went with three other officers to Hall’s Charlotte,

North Carolina residence to arrest him for a misdemeanor charge

arising    from     the   purported        theft        of    catalytic          converters.

Officer    Helms    was   aware       that       Hall     had    a    lengthy       criminal

history, including fifteen felony convictions and one hundred

arrests.         Upon   arriving      at    Hall’s        residence,        the     officers

                                             3
recognized his vehicle in the driveway, as some of the officers

had   seen    Hall   driving       the     vehicle      in     the   past.       After    the

officers knocked and announced their presence at both the front

and back doors, a man who the officers knew was not Hall, and

who was later identified as Thomas Phillips, opened the back

door.        An   officer     asked      Phillips        whether       Hall    was    there.

Phillips      mumbled       something        incomprehensible             in    response--

possibly “hold on” or “no”--before shutting the door.                               J.A. 99.

The     officers     continued        knocking          but     received       no    further

response.         Officer    Helms       then       contacted    his     supervisors      and

apprised them of the situation.                       In light of Hall’s criminal

history, the officers decided to request the assistance of a

SWAT team to execute the arrest warrant.

              Over   the    next     few    hours,       a    SWAT   team      deployed   to

Hall’s residence, set up a command post, and used loudspeakers

to call for Hall to come out of the house.                           Hall did not come

out, but four other occupants emerged: Hall’s wife, Sheena Hall;

her two children; and Phillips.                     Ms. Hall told the officers that

her husband was not inside.                According to the officers, Phillips

told them that Hall was in the house.                        At the later suppression

hearing, Phillips disputed that he told the officers Hall was

inside;      however,      the    district          court     credited    the       officers’

testimony.        When     Hall    did     not      respond     or   emerge,     SWAT    team

members entered the house and searched for Hall but did not find

                                                4
him.

           During the search, the officers located two firearms,

including a rifle that had been placed in an air duct large

enough for a person to fit inside that ran underneath the house.

An officer had opened the air duct to see if Hall was hiding in

it.     That officer immediately “located a brown or tan rifle

bag,”   about   three   feet   long,    six    to   eight    inches      high,   and

narrowed in a triangular manner on one end, laying lengthwise

down the duct.     J.A. 585-86.        He pulled the bag out of the air

duct and set it on the ground.              At trial, the officer testified

that he referred to it as a “rifle bag” because he owns several

such bags himself.         He further described it as “just a large

canvas or cloth like bag that’s long enough for a rifle to fit

into with a strap across the top,” J.A. 185, and explained that

“[y]ou could feel the weight of it being heavier on one side

versus the other when I lifted it out, typical of a rifle bag

with a rifle inside of it.           I have several at home, same exact

set up,”      J.A. 586.     Other officers later opened the bag and

found a rifle.

           After    the    initial      search,     one      of    the    officers

interviewed     Phillips    again,     and    reported      that   Phillips      was

adamant that Hall was inside.               The SWAT team then conducted a

second search, and officers located Hall in a crevice inside the

attic wall.      An officer later testified at trial that he saw

                                        5
Hall and said, “Let me see your hands,” whereupon Hall swore at

him and spat at him and other officers.                  J.A. 151-52.



                                             B.

              On February 17, 2009, Hall was charged in the Western

District of North Carolina with being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1).                            Hall filed a

motion to suppress, arguing, inter alia, that (1) officers could

not   enter    a     house   to   arrest         the   subject    of   a     misdemeanor

warrant; (2) officers did not have adequate “reason to believe”

Hall was inside; (3) officers exceeded the scope of a protective

sweep; and (4) the duration of the search was constitutionally

unreasonable.          The magistrate judge conducted two suppression

hearings,      after    which     he    recommended       that    Hall’s      motion   be

denied.       Hall filed written objections to that recommendation.

On September 29 and October 8, 2009, the district court entered

orders    overruling        Hall’s     objections,       adopting      the   magistrate

judge’s recommendation, and denying the motion to suppress.                            On

the   first    day     of   trial,     the   district     court    heard     additional

testimony regarding the motion to suppress and reiterated its

denial of that motion.

              Hall also filed a motion in limine to preclude the use

of what he deemed inadmissible propensity evidence under Federal

Rule of Evidence 404(b).             Specifically, he objected to testimony

                                             6
from officers that Hall swore and spat at them when they found

and arrested him. 1       The district court ruled that such evidence

was not 404(b) evidence, as it was inextricably intertwined with

the events in question and was relevant and admissible.                            Hall

again objected to the admission of this evidence at trial, and

his objection was overruled.

            After    trial     on   October     19    and    20,    2009,      a   jury

convicted    Hall.        On   August     25,    2010,      the    district        court

sentenced    Hall    as   an    armed    career      criminal      to    188    months

imprisonment and three years of supervised release under the

ACCA, 18 U.S.C. § 924(e)(1).            The district court found that Hall

lacked “the ability to pay a fine or interest” under 18 U.S.C. §

3572(a), but it ordered Hall to reimburse the United States for

court-appointed      attorneys’      fees,      in    the     form       of    monthly

installments in the amount of $50.              It made no specific findings

of fact in support of the reimbursement order.                          The district

court entered judgment against Hall on September 11, 2010.                         This

appeal followed.




     1
       The government also referred to Hall’s conduct in this
regard during its opening and closing statements.



                                         7
                                           II.

            Hall    makes    the     following        arguments       on    appeal:      that

state authorities violated the Fourth Amendment by entering his

residence   without        “reason    to    believe”         he    was     inside   and    by

searching    the    bag     in   which     the       rifle    was     found;     that     the

district court erred in admitting evidence that Hall swore and

spat at officers when they found him; that the district court

violated    the    Criminal      Justice        Act,    18        U.S.C.    §   3006A,    by

ordering Hall to repay his court-appointed attorneys’ fees; and

that the district court erred in sentencing him as an armed

career criminal under the ACCA.                  We consider each contention in

turn.

                                           A.

            We     first     address       Hall’s       contention           that    police

violated    the    Fourth     Amendment         by   entering        his    home    without

“reason to believe” he was inside. 2                   On appeal from a district

court’s denial of a motion to suppress, we review the court’s

factual findings for clear error and its legal determinations de

     2
       Although Hall also contends in general terms that “SWAT
teams present acute Fourth Amendment concerns,” Appellant’s Br.
at 19, he frames the argument in the context of the broader
challenge to the officers’ “reason to believe” he was home when
they entered his residence. He cites no authority, nor have we
found any, for the proposition that a SWAT team may not be used
to execute a misdemeanor warrant. To the contrary, given Hall’s
criminal history, of which the officers were aware, the exercise
of their discretion to call in a SWAT team seems appropriate.



                                            8
novo.    United States v. Grossman, 400 F.3d 212, 216 (4th Cir.

2005).

           “[A]n   arrest     warrant      founded     on   probable     cause

implicitly   carries   with   it   the   limited     authority    to   enter   a

dwelling in which the suspect lives when there is reason to

believe the suspect is within.”            Payton v. New York, 445 U.S.

573, 603 (1980).       It is well established that Payton requires

that officers have a reasonable belief that the arrestee (1)

lives in the residence, and (2) is within the residence at the

time of entry.     United States v. Hill, 649 F.3d 258, 262 (4th

Cir. 2011); see also United States v. Veal, 453 F.3d 164, 167

(3d Cir. 2006); United States v. Gay, 240 F.3d 1222, 1226 (10th

Cir. 2001); United States v. Lauter, 57 F.3d 212, 215 (2d Cir.

1995).     Assuming    the   equivalence    of   the   probable    cause   and

reason to believe standards, 3 the officers were required to have

been aware of facts and circumstances sufficient to justify a

reasonably cautious person in believing that Hall was in the

home.    Vasquez v. Snow, 616 F.2d 217, 220 (5th Cir. 1980).               “To


     3
       We note that the parties disagree about whether reasonable
belief requires probable cause, or something less.       We have
previously acknowledged “the diverse views taken by our sister
circuits,” and declined “to reach a conclusion as to whether
‘reason to believe’ is as stringent as ‘probable cause.’” Hill,
649 F.3d at 263.   Here, too, we decline to resolve that issue,
because we hold that the officers had probable cause to enter
Hall’s home.



                                     9
determine        whether     probable      cause    existed,”      we   “look    to   the

totality of the circumstances known to the officers at the time

of the arrest.”              United States v. Al-Talib, 55 F.3d 923, 931

(4th Cir. 1995).             And “as to the second Payton prong, courts

must       be    sensitive      to    common       sense     factors    indicating      a

resident’s        presence,”         including      “the     possibility     that     the

resident may be aware that police are attempting to ascertain

whether or not the resident is at home.”                           United States v.

Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995); cf. 3 Wayne R.

LaFave, Search and Seizure § 6.1 (4th ed. 2004) (“[T]he police

need not possess ‘special knowledge’ that the defendant is at

home       in   order   to    meet   the   probable        cause   test,   for   in   the

absence of facts tending to show that the defendant is not at

home, it is reasonable to infer that he would be there.”).

                On these facts, we hold that the officers had reason

to believe that Hall was inside the house at the time of entry. 4


       4
          Hall argues that, for purposes of determining whether
officers had “reason to believe” he was inside, officers
“constructively entered” the residence and arrested him when
SWAT team members began using loudspeakers, but before they
physically entered the home.     In so arguing, Hall relies on
several out-of-circuit cases involving the use of forceful SWAT
methods designed to lure a potential arrestee out of his home so
police could arrest him in “public” without a warrant.      See,
e.g., United States v. Maez, 872 F.2d 1444, 1451 (10th Cir.
1989) (finding that Payton is violated when “there is such a
show of force that a defendant comes out of a home under
coercion and submits to being taken in custody”). We decline to
adopt the constructive entry analysis where, as here, officers
(Continued)
                                            10
Officers    knew    the    house      was    Hall’s       residence       and    possessed

several pieces of information suggesting he was at home.                           First,

officers recognized Hall’s vehicle in the driveway.                               Second,

officers knew someone was in the house and not responding to

their knocks.           Further, Hall’s wife and two of her children

ultimately emerged, as did Phillips, who reported, as credited

by   the   district      court,      the    fact    of     Hall’s   presence      inside.

Therefore, officers had “reason to believe” Hall was inside the

residence at the time of entry under Payton.



                                            B.

            Hall next contends that officers violated the Fourth

Amendment by conducting a search of the bag that was ultimately

found to contain a rifle.                   The government contends that the

seizure was lawful under the plain view doctrine.

            Whether       the     plain     view        exception    to    the     warrant

requirement supports an officer’s search of a container is a

question    of    law    that   we    review       de    novo.      United      States   v.

Williams,    41    F.3d    192,    196      (4th    Cir.    1994). 5       Officers      may




had an arrest warrant for Hall and did not use the SWAT team to
lure Hall outside to make a warrantless arrest.
      5
          When a defendant fails to raise an issue before the
district court with sufficient specificity, our review of the
claim is for plain error only.    United States v. Baptiste, 596
(Continued)
                                            11
conduct a warrantless search of a container seized in plain view

only when its contents are a “foregone conclusion.”                       Id. at 197

(citation    omitted).          In    Williams,      we    held    that     when    a

container’s “distinctive configuration proclaims its contents,

the container supports no reasonable expectation of privacy and

the contents can be said to be in plain view.”                      Id. (citation

omitted).     “In determining whether the contents of a container

are   a   foregone    conclusion,      the   circumstances        under    which   an

officer finds the container may add to the apparent nature of

its contents.”        Id.       For example, in Williams, we upheld a

warrantless search where “compelling circumstances existed that

[led] us to conclude” that “cellophane wrapped packages found in

Williams’    suitcase       ‘spoke    volumes   as    to   [their]        contents--

particularly to the trained eye of the officer.’                    For instance,

from the appearance and size of the packages, . . . it was

reasonable to assume” that they contained contraband.                        Id. at

197-98 (citation omitted).            We further noted the officer’s “firm

belief,    based     on   his   ten    years’   experience,        that     packages

appearing in this manner always contained narcotics.”                        Id. at



F.3d 214, 220 (4th Cir. 2010). The government contends that we
should review for plain error only because Hall did not
challenge the officer’s testimony that he knew the rifle bag
found in the air duct contained a rifle. Because we hold that,
even reviewed de novo, the warrantless search of the bag was
lawful, we need not resolve this issue.



                                        12
198.

               Significantly for our analysis, the Supreme Court has

specifically cited a gun case as an example of a container that

may    be   seized   under       the    plain       view   exception.      Arkansas     v.

Sanders, 442 U.S. 753, 764-65 n.13 (1979) (“[S]ome containers

(for example a kit of burglar tools or a gun case) by their very

nature      cannot   support      any        reasonable     expectation     of    privacy

because      their   contents          can    be    inferred     from    their    outward

appearance.”) (emphasis added).                    Although we have not previously

applied the plain view exception to a gun case, other circuits

have done so.        See United States v. Banks, 514 F.3d 769, 775

(8th    Cir.    2008)     (holding        that      “because     gun    cases    vary   in

characteristics, [and] each case must be evaluated on its own

facts,” the test is whether “the container at issue is readily

identifiable         as      a         gun         case     by     its      distinctive

configuration”); United States v. Meada, 408 F.3d 14, 24 (1st

Cir. 2005) (upholding search of clearly labeled gun case when

the case “reasonably appeared to contain a gun,” and when “as a

convicted felon, [the defendant] was prohibited from possessing

one”); cf. United States v. Bonitz, 826 F.2d 954, 956-57 (10th

Cir. 1987) (refusing to apply the exception to the search of a

“hard plastic case” which “did not reveal its contents to the

trial court,” but withholding judgment as to “the well-known

soft, zippered gun cases” because “soft-sided gun cases could

                                               13
self-reveal the presence of a weapon inside”).

              Similarly, we find it plain that the soft bag found in

the air duct contained a rifle for the following reasons: (1)

the officer immediately recognized it as a “rifle bag” because

of its specific dimensions, shape, and weight distribution; (2)

the    officer     had    prior    experience      with     rifle    bags,    and     had

several such bags at home; and (3) the rifle bag was secreted in

an air duct.       We therefore hold that the search of the rifle bag

was justified and a search warrant unnecessary.



                                            C.

              We   next   consider     Hall’s     argument     that    the    district

court erred in admitting evidence that Hall spat and swore at

police officers when they found him.                       “We review a district

court’s evidentiary rulings for abuse of discretion and subject

such    rulings     to    harmless    error      review.”      United        States    v.

Johnson, 587 F.3d 625, 637 (4th Cir. 2009).

              Under the harmless error standard, we will not reverse

if we can “say, with fair assurance, after pondering all that

happened without stripping the erroneous action from the whole,

that    the      judgment    was      not     substantially         swayed     by     the

error.”        Kotteakos     v.      United      States,     328    U.S.     750,     765

(1946); see United States v. Mouzone, 687 F.3d 207, 213 (4th

Cir. 2012).

                                            14
              Hall argues that evidence of his behavior at the time

of   arrest      was    both       extrinsic      to        the    ultimate       18     U.S.C.   §

922(g)(1)      charge         and     irrelevant            to     prove        Hall’s    “guilty

knowledge”       of    the     firearms      in       his    house.         He    contends      the

testimony was extremely prejudicial.                         Even assuming that Hall is

correct    and     that      the     district         court       erred    in    admitting      the

evidence, we conclude that any resulting error was harmless.                                      In

this case, there was overwhelming evidence that Hall was guilty

of the charged offense: the jury heard evidence of where the two

guns   were      found       and    also    heard       phone       calls       in    which     Hall

referenced owning other firearms that the police did not find.

Moreover, Hall does not contend that evidence that he was hiding

in   the   attic        wall       when    officers         found     him       was     improperly

admitted.          Thus,      we    can    say    with        fair    assurance          that    the

testimony that Hall swore and spat at officers when they found

him, and the prosecution’s references to that conduct during

opening and closing statements, did not substantially sway the

judgment in this case.



                                                 D.

              We      next     address     Hall’s        challenge         to     the    district

court’s order requiring him to repay his attorneys’ fees.                                          A

district court’s authority to order reimbursement of attorneys’

                                                 15
fees presents a question of statutory interpretation which we

normally review de novo.                 United States v. Weaver, 659 F.3d 353,

356 (4th Cir. 2011).               Because Hall did not raise this challenge

below, however, our review is for plain error.                               Fed. R. Crim. P.

52(b).    To establish plain error, Hall must show that an error

occurred, that it was plain, that it affected his substantial

rights, and that this court should exercise its discretion to

correct the error.               United States v. Olano, 507 U.S. 725, 731-32

(1993).    We have held “that an error is clear or equivalently

obvious if ‘the settled law of the Supreme Court or this circuit

establishes      that       an    error       has   occurred.’”             United     States     v.

Maxwell, 285 F.3d 336, 342 (4th Cir. 2002) (citation omitted).

“Notably, the error need not be plain at the time the district

court    erred    as       long    as    the       error     is     plain    at    the    time    of

appellate consideration.”                    Id.    An error affects the defendant’s

substantial      rights          if     it    has       a   prejudicial       effect      on     the

sentence imposed.            United States v. Lynn, 592 F.3d 572, 580 (4th

Cir. 2010).

               The Criminal Justice Act requires the government to

provide   adequate          legal     representation              for   criminal       defendants

unable    to    pay    for       such    services           when,    like    Hall,       they    are

charged    with        a     federal          felony        offense.              18   U.S.C.      §

3006A(a)(1)(A).            That statute also provides that “[i]f at any

time after the appointment of counsel . . . the court finds that

                                                   16
the person is financially able to obtain counsel or to make

partial payment for the representation, it may . . . authorize

payment   as    provided   in    subsection   (f),   as   the    interests    of

justice may dictate.”           18 U.S.C. § 3006A(c).           Subsection (f)

authorizes a court to order repayment of attorneys’ fees under

certain circumstances:

     Whenever . . . the court finds that funds are
     available for payment from or on behalf of a person
     furnished representation, it may authorize or direct
     that such funds be paid to the appointed attorney . .
     . or to the court for deposit in the Treasury as a
     reimbursement to the appropriation, current at the
     time of payment, to carry out the provisions of this
     section.

18 U.S.C. § 3006A(f).

             We recently held that a district court must base a

reimbursement order under § 3006A(f) “on a finding that there

are specific funds, assets, or asset streams (or the fixed right

to   those     funds,   assets,    or    asset   streams)       that   are   (1)

identified by the court and (2) available to the defendant for

the repayment of the court-appointed attorneys’ fees.”                    United

States v. Moore, 666 F.3d 313, 322 (4th Cir. 2012).                    In Moore,

we vacated the reimbursement order because the district court

failed to make findings that defendant Moore was “financially

able . . . to make partial payment for the representation.”                  Id.

at 323 (citation omitted).         The district court in Moore “simply

adopted the probation officer’s standing $50 a month repayment


                                        17
plan” even though it “specifically found that Moore, who was

clearly eligible for a court-appointed attorney, did ‘not have

the     ability    to   pay      a   fine   or     interest.’”         Id.    (citation

omitted).

            We hold that Moore controls our disposition of Hall’s

challenge to the district court’s reimbursement order.                               This

case is factually similar to Moore: the district court made no

findings    regarding         Hall’s    ability      to   pay,     relied     upon    the

probation       officer’s      standard      monthly      installment        plan,     and

specifically found that Hall did not have the ability to pay a

fine or interest.           As such, the district court did not comply

with the statutory mandate here. 6               For those reasons, we exercise

our discretion to hold that the district court’s judgment at

sentencing, insofar as it required a reimbursement of attorneys’

fees, was in error, and that the error was plain.                             We vacate

that portion of the district court’s judgment requiring Hall to

repay     his     court-appointed       attorneys’        fees,    and      remand     for

resentencing       consistent        with   this    opinion,      as   to    that    issue

only.

                                            E.

            Finally,        we       address       Hall’s      challenge       to     his

      6
       It bears noting that the district court did not have the
benefit of our decision in Moore when it entered the
reimbursement order.



                                            18
classification as an armed career criminal under the ACCA, 18

U.S.C. § 924(e)(1).            “We review legal issues such as whether a

defendant’s previous conviction counted as an ACCA predicate de

novo, and we review factual findings for clear error.”                                 United

States     v.    Washington,        629    F.3d          403,   411    (4th    Cir.       2011)

(citations omitted).

            Hall submitted his own, supplemental brief to contest

his   sentence       under    the     ACCA.         He    contends     he    has    not    been

convicted       of   three     prior      violent        felonies,     as     18    U.S.C.   §

924(e)(1) requires, and therefore should not have been sentenced

as an armed career criminal.

            He first argues that his South Carolina third-degree

burglary conviction is not a violent felony.                          “The Supreme Court

has defined burglary as a violent felony under the ACCA only if

the breaking and entering was what it terms generic burglary:

‘any crime, regardless of its exact definition or label, having

the basic elements of unlawful or unprivileged entry into, or

remaining in, a building or structure, with intent to commit a

crime.’”        See United States v. Foster, 662 F.3d 291, 292 (4th

Cir. 2011) (quoting Taylor v. United States, 495 U.S. 575, 599

(1990)).

            Although         Hall’s    charging          document     from    the    burglary

conviction      does    not    specify        the    statute      under      which    he    was

charged, we nevertheless conclude that his third-degree burglary

                                              19
conviction       qualifies   as    a    violent          prior    felony      for      ACCA

purposes.       There was no evidence of there being more than one

third-degree burglary statute in South Carolina (§ 16-11-313)

and the language of the indictment tracked this statute, which

met   the   basic    requirement       for    classifying         a    burglary       as   a

qualifying violent felony for ACCA purposes: unlawful entry into

a     physical      structure     with        the        intent        to     commit       a

crime.      See Foster, 662 F.3d at 292.                    Therefore, the court

properly classified the burglary as a predicate ACCA felony.

            Hall also contends that two of his predicate offenses

are   actually     one   crime.    The       ACCA    requires         “that   the     three

predicate offenses take place ‘on occasions different from one

another.’”       United States v. Letterlough, 63 F.3d 332, 335 (4th

Cir. 1995) (citation omitted).               In Letterlough, we laid out the

factors     a    court   should   consider          to    determine         whether    the

predicate offenses took place on different occasions, including

“whether the offenses arose in different geographic locations;

whether the nature of the offenses was substantively different;

and whether the offenses involved multiple victims or multiple

criminal objectives.”        Id. at 335-36.              We have previously found

that “‘criminals who commit separate crimes against different

individuals while on a spree, within a short period of time,

provided that the perpetrator had the opportunity to cease and

desist from his criminal actions at any time’” commit crimes on

                                         20
different occasions.          United States v. Leeson, 453 F.3d 631,

642-43 (4th Cir. 2006) (citations omitted).

            The district court walked through each factor during

Hall’s sentencing hearing, explaining its reasoning for finding

that the two felonies Hall now challenges--a charge for breaking

and entering and larceny, and a charge for aiding and abetting

an assault with a deadly weapon on a police officer--constituted

two   separate     offenses,      even   though       the   aiding      and   abetting

felony   arose     when    Hall   fled     the    scene     of    the   breaking   and

entering.         S.J.A.   1072    (pre-sentence          investigation       report);

1003-05.    A consideration of the Letterlough factors leads us to

conclude    that    our    holding    in    Leeson     applies       here.      Hall’s

breaking and entering and his assault on a police officer were

committed in somewhat different geographic locations, the nature

of the two offenses was substantially different, the victims of

the   crimes   were    distinct,      and     there    were      different    criminal

objectives to each crime.            Further, there was a point after the

breaking    and    entering,      albeit      brief,      where    Hall    “‘had   the

opportunity to cease and desist from his criminal actions,’”

meaning the crimes occurred on different occasions.                       Leeson, 453

F.3d at 643 (citations omitted).                 Therefore, the district court

did not err in classifying Hall as an armed career criminal and

so sentencing him under the ACCA.



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                                  III.

          For   the   foregoing    reasons,   the   judgment   of   the

district court is



                                                    AFFIRMED IN PART,
                                                     VACATED IN PART,
                                                        AND REMANDED.




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