UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5939

CHARLES H. BURTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-95-65)

Submitted: November 26, 1996

Decided: December 26, 1996

Before HALL, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Darryl A. Parker, Richmond, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, N. George Metcalf, Assistant United States
Attorney, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Charles H. Burton was convicted in a bench trial of being a felon
in possession of a firearm in violation of 18 U.S.C.A. §§ 922(g)(1),
924(e) (West Supp. 1996) (Count One), and of knowingly possessing
a firearm with a serial number removed or obliterated in violation of
18 U.S.C.A. §§ 922(k), 924(a)(1)(B) (West Supp. 1996) (Count Two).
He challenges his conviction and his fifteen-year sentence. We affirm.

Burton first contends that the district court erred in denying his
motion to suppress the evidence seized at his arrest on the ground that
the police lacked reasonable suspicion to detain him. See Terry v.
Ohio, 392 U.S. 1, 30 (1968) (brief investigative stop permissible with
reasonable suspicion of ongoing criminal activity based on specific
articulable facts). The district court made the following findings at the
suppression hearing. About 9:30 p.m. on February 13, 1995, police
patrolling an apartment complex in a high crime area of Richmond,
Virginia, saw four men standing beside a car with North Carolina
license plates. The car had no tenant parking sticker although signs
were posted prohibiting parking by non-tenants and prohibiting tres-
passing. On seeing the police car, the four men immediately began
walking in different directions. Officer Kurisky noticed that Burton
put his right hand in his pocket as he quickly walked away, looking
over his shoulder at the police.

Kurisky followed Burton to the door of an apartment where Burton
stood knocking and calling for someone to open the door. In response
to Kurisky's questions, Burton first said he lived at the apartment,
then said he was visiting there but did not know who lived there. He
ignored Kurisky's requests that he remove his hand from his pocket
and submit to a pat-down search. When the door was opened, Burton
pushed the officer away and rushed inside. Officer Kurisky followed
and a tussle ensued. Burton broke away and ran into the kitchen
where he wedged his right side between the refrigerator and the
counter. As a second police officer arrived, Burton took a Lorcin .380
semiautomatic pistol out of his right pocket. He was subsequently
arrested. The serial numbers on the pistol had been drilled out, mak-
ing most of the numbers only partially legible.

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Burton argues that he was unlawfully detained when Officer
Kurisky followed him to the door of the apartment. We disagree. A
protective search for weapons is permissible under Terry if circum-
stances warrant it. In evaluating the validity of an investigative stop,
a court must consider the totality of the circumstances. United States
v. Sokolow, 490 U.S. 1, 8 (1989). Burton's hurried departure from a
group huddled beside a car with no tenant parking sticker, his right
hand shoved into his pocket, and his nervous glances at the police, all
occurring in an area plagued by drug dealers, gave police ample rea-
son to suspect possible criminal activity and the presence of a
weapon. Therefore, the district court did not err in denying the motion
to suppress.

Next, although he did not preserve the issue for appeal by raising
an objection in the district court, Burton claims that the evidence was
insufficient to convict him under § 922(g) because the government
failed to prove that his civil rights had not been restored. We review
the issue under the plain error standard. Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993). An appeals
court will not notice an error raised for the first time on appeal unless
(1) there is an error, (2) which is plain, (3) which affects the substan-
tial rights of the defendant, and (4) which must be corrected to avoid
a miscarriage of justice or damage to the "fairness, integrity or public
reputation of judicial proceedings." Olano , 507 U.S. at 736-37;
United States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996).

In this case, the government failed to put on any proof at trial of
the "continuing vitality" of Burton's prior convictions, which we have
held to be necessarily a part of proving a prior conviction. United
States v. Essick, 935 F.2d 28, 31 (4th Cir. 1991). Burton has thus
identified a plain error which affected his substantial rights. Cf.
Cedelle, 89 F.3d at 185. However, Burton does not suggest here that
his rights had in fact been restored on any of those convictions. In
Virginia, a felon's civil rights are not automatically restored by the
passage of time. To regain his rights, a felon must receive a pardon
by the governor. Va. Const. art. V, § 12. An unpardoned felon may
petition the circuit court in the district where he resides for a permit
to possess a firearm. Va. Code Ann. § 18.2-308.2(C) (Michie 1996).
However, Burton does not claim that he obtained either a pardon or
a permit. The error thus did not result in the conviction of an innocent

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person or "seriously affect the fairness, integrity or `public reputation
of judicial proceedings.'" Olano, 507 U.S. at 735-37. Consequently,
we decline to notice it and we affirm Burton's conviction on Count
One.

Burton also argues that the government failed to prove that he
knew the serial numbers had been removed or obliterated. However,
he did not dispute the government's assertion at trial that the oblitera-
tion was obvious because the drill left a series of silver holes on the
black firearm. The judge was able to observe the firearm and could
infer that Burton knew the serial number had been defaced. See
United States v. Moore, 54 F.3d 92, 101 (2d Cir. 1995) (knowledge
of defacement may be inferred), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3485 (U.S. Jan. 19, 1996) (No. 95-6998). The evidence was
thus sufficient on Count Two.

Finally, Burton challenges his fifteen-year sentence under § 924(e).
Burton had previously been convicted three times of breaking and
entering at night with the intent to commit larceny. These crimes con-
stituted generic burglary as the term is used in§ 924(e)(2)(B). See
Taylor v. United States, 495 U.S. 575, 598-99 (1990). Moreover, the
offenses were committed on different dates. He thus qualified for the
enhanced sentence. Burton was not sentenced as a career offender
under USSG § 4B1.1 and his prior sentences for possession of
cocaine did not affect the enhancement of his sentence.

The conviction and sentence are therefore affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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