                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4389


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTHONY VONN HARRIS, a/k/a Anthony Vonne Harris,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00289-TDS-1)


Submitted:   November 29, 2011            Decided:   December 15, 2011


Before MOTZ, GREGORY, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant.      Ripley Rand, United States
Attorney, Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Pursuant      to   a    written       plea   agreement,    Anthony     Vonn

Harris pleaded guilty to possession of a firearm after having

previously been convicted of a crime punishable by a term of

imprisonment      exceeding           one    year,    in    violation    of   18    U.S.C.

§§ 922(g)(1), 924(e) (2006).                   The district court found Harris

qualified for sentencing pursuant to the Armed Career Criminal

Act (“ACCA”), 18 U.S.C. § 924(e), and sentenced Harris to the

statutory mandatory minimum term of 180 months’ imprisonment.

This appeal timely followed.

               In his opening brief, Harris asserts that his case

should be remanded to allow the district court to reconsider the

armed career criminal designation in light of this court’s en

banc decision in United States v. Simmons, 649 F.3d 237 (4th

Cir.    2011).        Particularly,          Harris    complains    that      the   record

lacked sufficient information regarding his prior record level

and whether he was sentenced within the presumptive range, both

of which were necessary to determine whether his prior North

Carolina convictions were for crimes punishable by more than one

year of imprisonment.             In response, the Government argues that,

under    the    North     Carolina          Fair   Sentencing    Act,    which      was   in

effect when Harris sustained three of the convictions identified

as ACCA predicates, these crimes were all punishable by more

than    one    year     of   imprisonment,           independent   of    any     findings

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regarding Harris’ recidivism.                       Thus, the Government advances,

Simmons is inapplicable to this case.

                 In his reply brief, which is submitted pursuant to

Anders v. California, 386 U.S. 738 (1967), counsel for Harris

suggests that there is no merit to Harris’ claim under Simmons,

but asks this court to review both his conviction and the armed

career         criminal     designation       for    any   potential      Simmons     error.

Although advised of his right to do so, Harris has not filed a

pro    se       supplemental     brief.         For    the   following        reasons,   we

affirm.



                                               I.

                 We first conclude that Harris’ conviction is valid.

Section 922(g)(1) prohibits the possession of a firearm by any

person         “who   has    been    convicted        in   any    court    of,    a   crime

punishable by imprisonment for a term exceeding one year.”                               18

U.S.C. § 922(g)(1).                 As the Government points out, three of

Harris’ prior North Carolina convictions — two 1992 convictions

for breaking or entering and one 1994 conviction for assault

with       a    deadly    weapon     on   a    government        official *   —   pre-date

       *
       According to his presentence report, Harris received a
nine-year suspended sentence on the 1992 breaking or entering
convictions and a five-year sentence on the assault conviction.
Harris did not dispute the facts relevant to these prior
convictions in the district court.


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enactment of North Carolina’s Structured Sentencing Act, which

was at issue in Simmons.                    See generally State v. Garnett, 706

S.E.2d 280, 288 (N.C. Ct. App. 2011) (explaining that the Fair

Sentencing        Act    “was       repealed       effective           1     October          1994    and

succeeded     by       the    Structured      Sentencing             Act,        N.C.     Gen.       Stat.

§§ 15A–1340.10 to –1340.33”).                  Breaking or entering is a Class H

felony, see N.C. Gen. Stat. § 14-54 (2009); State v. Salters,

308 S.E.2d 512, 515 (N.C. Ct. App. 1983), and pursuant to North

Carolina’s Fair Sentencing Act, the presumptive sentence for a

Class   H    felony          was    three    years         in    prison.           See        State     v.

Lawrence, 667 S.E.2d 262, 264 (N.C. Ct. App. 2008) (“Under the

Fair    Sentencing           Act,    a     Class       H    felony          carried       a     maximum

punishment        of    ten    years,       with       a   presumptive             term       of     three

years.”).     Accordingly, either of the 1992 breaking or entering

convictions, for which Harris was sentenced to nine years of

imprisonment, suspended, qualifies as a proper predicate for the

§ 922(g) charge, and Simmons does not alter this conclusion.

Further,     we    have       reviewed      the       transcript           of    Harris’       Fed.    R.

Crim.   P.    11        hearing      and    conclude            that       the    district           court

complied     with       the    mandates      of       Rule      11     in       accepting       Harris’

guilty plea.           We therefore affirm Harris’ conviction.




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                                               II.

             We next review the propriety of Harris’ armed career

criminal     designation.            Because        Harris     did      not   challenge        his

armed career criminal status in the district court, this issue

is reviewed for plain error.                    See United States v. Slade, 631

F.3d 185, 189 (4th Cir.) (stating standard of review), cert.

denied,    131     S.    Ct.       2943   (2011).            “To       prevail       under    this

standard, [Harris] must show that an error was made, is plain,

and affected his substantial rights.”                        Id. at 190.         Only if the

error “affected the outcome of the district court proceedings”

will   the       error       be     viewed       as    affecting          the        defendant’s

substantial rights.               United States v. Knight, 606 F.3d 171, 178

(4th Cir. 2010) (internal quotation marks omitted).                                  Thus, “the

defendant must show that he would have received a lower sentence

had the error not occurred.”                    Id.    Finally, “[t]he decision to

correct the error lies within our discretion, and we exercise

that   discretion        only        if   the        error    seriously          affects        the

fairness,         integrity         or        public     reputation             of      judicial

proceedings.”        Id. at 177-78 (alteration in original) (internal

quotation marks omitted).

             Under      18   U.S.C.       §    924(e),       if    a    defendant       violates

§ 922(g) after sustaining three prior convictions for violent

felonies     or    serious         drug   offenses,          the       statutory       mandatory

minimum    term     of   imprisonment            is    fifteen         years.         18     U.S.C.

                                                5
§ 924(e)(1).       A violent felony is defined as a crime, punishable

by a term exceeding one year of imprisonment, that (a) “has as

an element the use, attempted use, or threatened use of physical

force against” another person; or (b) is burglary, arson, or

extortion; involves explosives; “or otherwise involves conduct

that presents a serious potential risk of physical injury to

another.”     18 U.S.C. § 924(e)(2)(B)(i)-(ii).

            We have thoroughly reviewed the record and conclude

the district court properly determined that Harris’ prior North

Carolina convictions for felony breaking or entering and felony

assault with a deadly weapon on a government official qualified

as ACCA predicates.           First, these North Carolina convictions

fall squarely within the parameters of 18 U.S.C. § 924(e)(2)(B).

See United States v. Bowden, 975 F.2d 1080, 1083-85 (4th Cir.

1992) (concluding that breaking or entering under North Carolina

law    qualifies       as   “burglary”);        see   also   United       States     v.

Thompson, 421 F.3d 278, 284 (4th Cir. 2005) (explaining that

Bowden addressed “why violations of the North Carolina [breaking

or    entering]    statute    .   .   .   are   ‘violent     felonies’     for     ACCA

purposes” (internal citation omitted)).                  Further, that Harris

was indeed sentenced to greater than one year of imprisonment

for each of these convictions satisfies the statutory durational

requirement       to   qualify    a   prior      conviction     as    a    “felony.”



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Accordingly, we affirm the district court’s finding that Harris

qualified for sentencing under the ACCA.

             In accordance with the requirements of Anders, we have

examined the entire record for any meritorious issues and have

found none.      The statutory mandatory minimum sentence the court

imposed was procedurally and substantively reasonable.                            We thus

affirm the district court’s judgment.                     This court requires that

counsel inform Harris, in writing, of the right to petition the

Supreme     Court    of   the    United   States         for    further    review.      If

Harris 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    representation.

Counsel’s motion must state that a copy thereof was served on

Harris.      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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