                  Vacated by Supreme Court, June 21, 2010



                                UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                No. 09-4118


UNITED STATES OF AMERICA,

                    Plaintiff – Appellee,

             v.

DESMOND JAMAR SMITH,

                    Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:08-cr-00033-BR-1)


Submitted:    October 30, 2009                Decided:   December 9, 2009


Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Desmond    Jamar     Smith           pled      guilty     without         a     plea

agreement to one count of being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),

924 (2006), and was sentenced to 210 months in prison.                                   Smith’s

sole argument on appeal is that the district court erred in

sentencing him as an armed career criminal because he alleges

that:   (i)     his    four     prior    North          Carolina    felony     breaking         and

entering convictions were not proper predicate offenses under

the    Armed    Career    Criminal        Act       (“ACCA”),       18   U.S.C.      §       924(e)

(2006),    since       they   allegedly        do       not   involve    conduct         that    is

purposeful, violent and aggressive and were not punishable by

more than twelve months’ imprisonment; and (ii) his Fifth and

Sixth Amendment rights were violated when the district court

enhanced       his    sentence    based        on       uncharged      facts    about         prior

convictions neither admitted to by Smith, nor proven beyond a

reasonable doubt.         Finding no error, we affirm.

               Smith    contends        that       we    should    review      the     district

court’s decision that his prior convictions for breaking and

entering      are     violent    crimes        under      the   ACCA     in    light     of     the

Supreme Court’s decision in Begay v. United States, 128 S. Ct.

1581    (2008)        (holding     that        a        “violent    felony”       under         the

“otherwise” clause in 18 U.S.C. § 924(e) (2006) must be roughly

similar to enumerated crimes), and Chambers v. United States,

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129   S.     Ct.     687    (2009)    (holding,            in   accord       with     Begay,     that

failure to report for penal confinement is not a violent felony

under    §    924(e)).         Begay      was     decided         well   before          Smith   pled

guilty or was sentenced, but he did not object to his armed

career criminal status on this ground in the district court.

Therefore,         this    issue     is    reviewed         for       plain    error.        United

States v. Olano, 507 U.S. 725, 732 (1993).

                  We look to our case law interpreting both the terms

“crime       of    violence”       under     U.S.      Sentencing            Guidelines      Manual

§ 4B1.1 (2008) and “violent felony” under                              § 924(e) because the

language          defining    these       terms       is    “nearly       identical         []     and

materially          indistinguishable.”                United          States       v.    Roseboro,

551 F.3d 226, 229 n.2 (4th Cir. 2009).                               Burglary of a dwelling

is one of the crimes enumerated in                          § 4B1.2(a)(2) as a crime of

violence.          As Smith concedes, this court has held that the North

Carolina offense of breaking and entering is “generic burglary.”

United States v. Thompson, 421 F.3d 278, 284 (4th Cir. 2005)

(following         Taylor    v.    United       States,         495    U.S.     575      (1990),      in

interpreting § 924(e)).               Because the Supreme Court in Begay made

clear      that      “a    felony     that      is     one      of     the    example       crimes”

specifically enumerated in the statute (i.e., burglary) is a

proper       predicate       offense,      Smith       was      properly       sentenced         as    a

career offender.



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             Smith      also        asserts       that        he     lacked           the   required

predicate     convictions           for     his       armed       career        criminal         status

because,     under    North      Carolina’s            structured          sentencing          scheme,

his particular prior convictions were not punishable by a term

of imprisonment exceeding one year.                         Smith nonetheless correctly

concedes     that    his    argument        is        foreclosed          by    our    decision      in

United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005)

(holding that to determine if a crime is punishable by a term

exceeding     one    year,      a    sentencing            court     should          consider       “the

maximum aggravated sentence that could be imposed for that crime

upon a defendant with the worst possible criminal history”).

             Last, Smith argues that the district court violated

his   constitutional         rights       when        it    sentenced          him     as   an     armed

career criminal because the predicate felony convictions used to

increase     the     statutory        penalties             for     his    offense          were    not

alleged in the indictment or admitted by him as part of his

guilty   plea.        This      argument         fails       under        controlling          circuit

precedent.     See Thompson, 421 F.3d at 284 n.4 (holding that an

indictment     need     not     reference         or       list     the        prior    convictions

underlying the enhancement); see also United States v. Cheek,

415   F.3d    349,      352-53       (4th     Cir.          2005)    (holding           that     prior

convictions      used      as   the       basis       for    an     armed       career      criminal

sentence need not be charged in the indictment or proven beyond

a reasonable doubt).

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               Moreover, although Smith recognizes that the Supreme

Court has also held that the Government need not plead a prior

conviction in an indictment or present such evidence to a jury

in    order         to     rely        on     it   to        enhance      a     sentence,          see

Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 247

(1998),        he     asserts          that     Almendarez-Torres              was    incorrectly

decided, as suggested in Apprendi v. New Jersey, 530 U.S. 466,

489     (2000)        (“[I]t          is    arguable     that       Almendarez-Torres             was

incorrectly decided.”), and Shepard v. United States, 544 U.S.

13, 27 (2005) (Thomas, J., concurring) (noting that “a majority

of the Court now recognizes that Almendarez-Torres was wrongly

decided”)       (citations            omitted).          Though       many     defendants         have

argued        that       the    prior        conviction        exception        set       forth     in

Almendarez-Torres               may    no     longer    be     good     law,    Booker      clearly

maintained the prior conviction exception.                              See United States v.

Booker, 543 U.S. 220, 244 (2005) (“Any fact (other than a prior

conviction) which is necessary to support a sentence . . . must

be admitted by the defendant or proved to a jury”).                                   Thus, while

a sentencing court is not permitted to resolve disputed facts

about     a    prior       conviction           that     are      not    evident      from        “the

conclusive significance of a prior judicial record,” Shepard,

544 U.S. at 25, a determination that a defendant is eligible for

sentencing           under       the        ACCA   may       be    based        on    a     judge’s

determination            that    the       predicate     convictions           are   for    violent

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felonies or drug trafficking crimes if the qualifying facts are

inherent     in    the    predicate       convictions            and    the    court    is   not

required     to    perform       additional         fact    finding.           See    Thompson,

421 F.3d at 282-83; see also Cheek, 415 F.3d at 354 (holding

that, under the Sixth Amendment, the fact of a prior conviction

need not be submitted to the jury or admitted by the defendant

for   it    to    serve    as     the    basis      for     a    sentence       enhancement).

Accordingly,        we    find    that    the       district      court’s       armed    career

criminal         enhancement       to     Smith’s          offense           level    was    not

unconstitutional.

              Based on the foregoing, 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     the    court    and     argument         would       not    aid    the    decisional

process.

                                                                                       AFFIRMED




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