                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4503


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

HARVEY LEE MUNGRO, JR., a/k/a Harvey Lee Mungro,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:11-cr-00370-FDW-1)


Argued:   May 15, 2014                    Decided:   June 11, 2014


Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.


Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Chief Judge Traxler and Judge Niemeyer joined.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.   Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.        ON BRIEF: Henderson Hill,
Executive Director, Kevin Tate, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
DUNCAN, Circuit Judge:

       Harvey     Lee   Mungro      brings      this      appeal     challenging       his

sentence    for     being    a    felon    in   possession         of   a    firearm    in

violation of 18 U.S.C. § 922(g).                    The district court concluded

that Mungro was subject to a mandatory minimum sentence of 15

years’     imprisonment          under    the       Armed    Career     Criminal       Act

(“ACCA”), 18 U.S.C § 924(e), due to Mungro’s three prior state

convictions for “breaking or entering” in violation of N.C. Gen.

Stat. § 14-54(a).        For the reasons below, we affirm.

       The question presented here is a simple one: does North

Carolina’s “breaking or entering” offense qualify as burglary

and, thus, as a predicate offense under the ACCA?                           In answering

this     question,      we   first       review       the    legal      framework      for

categorizing state-law offenses under the ACCA.                         We then apply

this methodology to the “breaking or entering” offense at issue

in this case.



                                           I.

       The ACCA provides significantly strengthened penalties for

being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g), when the felon has previously been convicted of

three or more “predicate offenses.”                       These predicate offenses

include violent felonies and serious drug offenses.                            18 U.S.C.

§      924(e)(1).       While      violations        of     § 922(g)     are    normally

                                                2
punishable by no more than ten years’ imprisonment, 18 U.S.C.

§ 924(a)(2), this sentence increases to a mandatory minimum of

fifteen       years’       imprisonment           under       the     ACCA,         18        U.S.C.

§ 924(e)(1).

      The ACCA defines “violent felony” to include, as relevant

here,        any      offense        that        “is       burglary.”               18        U.S.C.

924(e)(2)(B)(ii). 1             Thus,       any    burglary         offense      is      an     ACCA

predicate          offense.      To     determine           whether       a    given      offense

qualifies as burglary, we compare the elements of the offense in

question with the elements of burglary, under burglary’s generic

definition.           See Taylor v. United States, 495 U.S. 575, 599

(1990).       As Taylor illustrated, an offense’s generic definition

may     be   different        from    the     definition         under        any     particular

state’s law.          Rather, an offense’s generic definition is uniform

nationwide.           It   therefore        is    ascertained        by       considering        the

similarities between the states’ definitions of the offense, and

by referring to secondary sources such as the Model Penal Code

and eminent criminal-law treatises.                        Id. at 580, 590-600.




        1
       The term also covers any offense that “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” “is . . . arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B).


                                                       3
     We need not engage in such a sweeping investigation here,

however, because the Supreme Court has already done so.                    The

generic   definition    of   burglary       requires:   “an    unlawful     or

unprivileged entry into, or remaining in, a building or other

structure,   with   intent   to   commit     a   crime.”       Id.    at   598.

“[G]eneric burglary's unlawful-entry element excludes any case

in which a person enters premises open to the public, no matter

his intent; the generic crime requires breaking and entering or

similar unlawful activity.”         Descamps v. United States, 133 S.

Ct. 2276, 2292 (2013).

     We   must   then   determine    the    elements    of    the    state-law

offense in question and compare them to the generic definition

of burglary.     To do this, we examine the relevant statutory

language and interpretations of that language by the state’s

highest court.      Johnson v. United States, 559 U.S. 133, 138

(2010); United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th

Cir. 2014) (en banc). 2      If the elements of the state offense


     2
        Aparicio-Soria concerned the application of the term
“crime of violence” under U.S.S.G. § 2L1.2, and not “violent
felony” under the ACCA. But “[w]e rely on precedents evaluating
whether an offense constitutes a ‘crime of violence’ under the
Guidelines interchangeably with precedents evaluating whether an
offense constitutes a ‘violent felony’ under the ACCA, because
the two terms have been defined in a manner that is
‘substantively identical.’”    United States v. King, 673 F.3d
274, 279 n. 3 (4th Cir. 2012) (quoting United States v. Jarmon,
596 F.3d 228, 231 n. * (4th Cir.2010)).


                                        4
correspond to or are narrower than those provided in the generic

definition of burglary, then the offense qualifies as burglary

and,       accordingly,    as    a   predicate    offense     under   the     ACCA.

Descamps, 133 S. Ct. at 2281.                Under this “formal categorical

approach,” we may consider only the elements of the offense and

the fact of conviction, and not the actual facts underlying that

conviction. 3      Id. at 2283.

       Here,     the    district     court    concluded     that   “breaking     or

entering” in violation of N.C. Gen. Stat. § 14-54(a) is burglary

and,       therefore,    that    Mungro’s    prior   convictions      under    that

statute constituted ACCA predicate offenses.                 Thus, it sentenced

Mungro      to   the    ACCA’s   15-year     mandatory    minimum,    instead    of

sentencing him within the significantly lower range ordinarily

prescribed by 18 U.S.C. § 924(a)(2).



                                        II.

       Mungro argues that the district court erred in concluding

that his prior “breaking or entering” convictions qualified as

ACCA predicate offenses, because the elements of “breaking or


       3
       A more searching analysis called the “modified categorical
approach” is permissible only when the conviction in question
was under a so-called “divisible” statute. See Descamps, 133 S.
Ct. at 2283-84.    The parties agree, however, that the formal
categorical approach provides the appropriate framework in this
case.


                                              5
entering” apply to a broader range of conduct than the generic

definition      of    burglary.          We        review         the   district      court’s

classification of these offenses under the ACCA de novo.                               United

States v. Gomez, 690 F.3d 194, 197 (4th Cir. 2012).                                   For the

reasons below, we agree with the district court. 4

      As     Mungro    points     out,        North          Carolina’s      “breaking     or

entering” offense is unusual for the reason suggested by the

conjunction in its name: it applies to “[a]ny person who breaks

or   enters    any    building    with    intent             to   commit   any    felony    or

larceny therein.”        N.C. Gen. Stat. § 14-54(a) (emphasis added).

The language of the statute suggests that it covers any entry

into a building with the intent to commit a crime, even when a

person enters with the building owner’s consent.                                 This might

indeed disqualify it as a predicate offense because “generic

burglary's unlawful-entry element excludes any case in which a

person      enters    premises    open        to       the    public,      no    matter    his

intent.”      Descamps, 133 S. Ct. at 2292.

      The     North   Carolina    Supreme           Court,        however,      has   greatly

narrowed the applicability of N.C. Gen. Stat. § 14-54(a).                                   It

      4
       Mungro also argues that the district court erred in
sentencing him based upon his prior criminal history without
these facts’ having been proven to a jury. See Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000).    However, he concedes that
this argument is foreclosed by our decision in United States v.
Thompson, 421 F.3d 278, 280 (4th Cir. 2005).    We therefore do
not discuss it further.


                                                   6
has held that N.C. Gen. Stat. § 14-54(a) was intended merely to

codify preexisting North Carolina law that criminalized breaking

or entering without the consent of the owner.                 State v. Boone,

256 S.E.2d 683, 687 (N.C. 1979).              The court therefore clarified

that, notwithstanding the broad statutory language, “entry with

consent of the owner of a building, or anyone empowered to give

effective consent to entry, cannot be the basis of a conviction

under G.S. 14-54(a).”      Id.

      This construction binds our ACCA analysis and brings the

elements of § 14-54(a) within the generic definition of burglary

as articulated by Taylor and Descamps.             As interpreted in Boone,

N.C. Gen. Stat. § 14-54(a) requires either breaking with intent

to   commit   a   felony   or   larceny   therein,      or   entering    without

consent   with    intent   to    commit   a    felony   or   larceny    therein.

These alternatives correspond to the alternative “unlawful” and

“unpriviledged” entry requirements of the generic definition of

burglary.     495 U.S. at 599.

      Mungro argues, however, that a footnote in Boone reopens

the possibility that a defendant could be convicted under N.C.

Gen. Stat. § 14-54(a) for entering a building with the consent

of its owner:

      We note in passing that there may be occasions when
      subsequent acts render the consent void ab initio, as
      where the scope of consent as to areas one can enter
      is exceeded, or the defendant conceals himself in a


                                          7
     building until a time he is not authorized to be there
     in order to facilitate a theft.

256 S.E.2d 687 n.3 (internal citations omitted).

     Under    this   language,   Mungro       argues,    a   defendant’s     later

theft from the building could be construed as a subsequent act

that rendered his permission to enter it void ab initio.                        If

this is the case, Mungro contends that the elements of N.C. Gen.

Stat.   §   14-54(a)    remain   broader      than   those      of   the   generic

definition of burglary because the generic definition contains

no such caveat.        The generic definition of burglary covers only

entries made without the actual consent of the building’s owner,

and does not contemplate the retroactive cancellation of that

consent.     The Supreme Court has made this clear in maintaining

that shoplifting, for example, does not qualify as burglary.

See Descamps, 133 S. Ct. at 2283.

     Unfortunately      for   Mungro,   however,        Boone   itself     nowhere

indicates that committing a crime within the building actually

is one of the “subsequent acts [that] render the consent void ab

initio.     Boone, 256 S.E.2d at 687 n.3.            To the contrary: Boone

makes clear that a defendant’s entry into a building with the

owner’s consent cannot serve as the basis for a conviction under

N.C. Gen. Stat. § 14-54(a), even if he commits a crime once

inside.     Id. at 687.




                                          8
      Significantly,       Boone   itself       would     have    been     decided

differently if Mungro’s interpretation were correct.                     Boone was

convicted under N.C. Gen. Stat. § 14-54(a) for his involvement

in a theft from a clothing store in Nags Head, North Carolina.

Boone, the evidence showed, had entered the store, left briefly,

and then returned to the store with three other individuals.                     He

then waited outside while his confederates entered the store and

stole two sweaters.

      The     North   Carolina   Supreme   Court     vacated     his     N.C.   Gen.

Stat. § 14-54(a) conviction, holding: “[t]he state's evidence

here established that defendant entered the store at a time when

it was open to the public.         His entry was thus with the consent,

implied if not express, of the owner.                It cannot serve as the

basis for a conviction for felonious entry.”                 Id. at 687.         But

if   Mungro’s    interpretation     were    correct,      the    North    Carolina

Supreme Court would have, instead, affirmed Boone’s N.C. Gen.

Stat.     §   14-54(a)   conviction.           Although   Boone    entered      the

clothing store with the owner’s consent, under Mungro’s theory

Boone’s subsequent larceny would have rendered that consent void

ab initio, supporting his conviction. 5             Thus, whatever else may


      5
       Mungro contends that Boone’s consent to enter would not
have been voided because Boone did not actually steal any
merchandise. But this overlooks the fact that, although Boone
may not have physically picked up the stolen sweaters, he was,
nonetheless,   convicted of  larceny  for   his  role  in  the
     (Continued)
                                           9
qualify as “subsequent acts [that] render the consent void ab

initio,” Id. at 687 n.3, a subsequent theft cannot be one of

them, because that alternative would have been inconsistent with

the holding of Boone itself.

      Second, Mungro’s interpretation would cause Boone’s holding

to be almost entirely swallowed by its footnote.                 N.C. Gen.

Stat. § 14-54(a) only covers entering a building with the intent

to commit a felony or larceny.        Under Mungro’s interpretation,

it would seem, a defendant’s consent to enter would be rendered

void ab initio whenever the defendant actually committed his

intended crime.    Thus, Mungro’s interpretation would implausibly

render Boone’s holding applicable only to the obscure case of an

ill-intentioned but well-behaved defendant: one who entered a

building with the owner’s consent intending to commit a crime,

but who, despite not actually committing the intended crime, was

nonetheless charged with violating N.C. Gen. Stat. § 14-54(a).

      Mungro points to two decisions of the North Carolina Court

of Appeals that held a subsequent act of theft to have rendered

the   thief’s   permission   to   enter    void   ab   initio:   State   v.

Rawlinson, 679 S.E.2d 878, 884 (N.C. Ct. App. 2009), and In re




shoplifting.   The North Carolina Supreme Court affirmed Boone’s
larceny conviction, observing that “the larceny itself is the
gravamen of this case.” Boone, 256 S.E.2d at 688.


                                      10
S.D.R., 664 S.E.2d 414, 420 (N.C. Ct. App. 2008).                     But when the

state’s highest court has already articulated the elements of

the offense, we are not free to conclude that it got them wrong

and, instead, credit the opinions of the state’s lower courts.

See Aparicio-Soria, 740 F.3d at 154.

      Likewise, it is not plausible to characterize these lower-

court opinions as merely filling in what Boone left open.                     As we

have explained, Boone makes clear that a subsequent act of theft

does not render the thief’s permission to enter void ab initio.

Mungro likewise falls short of showing that North Carolina’s

lower   courts      consistently    apply      Boone     differently     from    our

reading of it.       The two opinions he highlights hardly establish

a   pattern,   and    even   less   so   when     the    proposition    for   which

Mungro cites them is contained only in alternate holdings.                        In

both, the North Carolina Court of Appeals first held that the

defendant did not have permission to enter the portion of the

building    where    he    committed     the     theft   and   only    then     held,

alternatively, that his theft rendered his consent to enter void

ab initio.        Rawlinson, 679 S.E.2d at 884; In re S.D.R., 664

S.E.2d at 420.

      We therefore conclude that N.C. Gen. Stat. § 14-54(a), as

interpreted by the North Carolina Supreme Court, sweeps no more

broadly    than    the    generic   elements       of    burglary.      The   North

Carolina Supreme Court’s clarification that the offense requires

                                            11
either breaking or entering without a building owner’s consent

brings   it   within   Taylor’s   requirement    of   an   “unlawful   or

unprivileged entry.”     495 U.S. at 599.       This clarification also

“excludes any case in which a person enters premises open to the

public, no matter his intent” as required by Descamps.           133 S.

Ct. at 2292. 6   N.C. Gen. Stat. § 14-54(a) therefore qualifies as

an ACCA predicate offense under 18 U.S.C. § 924(e)(2)(B)(ii).



                                  III.

     For the reasons above, Mungro’s sentence is

                                                               AFFIRMED.




     6
       We therefore need not address Mungro’s argument that
Descamps overrules our prior opinion in United States v. Bowden,
975 F.2d 1080, 1081 (4th Cir. 1992), where we previously
concluded, as we do here, that N.C. Gen. Stat. § 14-54(a) falls
within the generic definition of burglary and, therefore, is an
ACCA predicate offense.


                                     12
