                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT
                           ______________

                              No. 03-4908
                            ______________


UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ROBERT ANDRE BACOTE,

                                              Defendant - Appellant.

                              ___________

Appeal from the United States District       Court for the Middle
District of North Carolina, at Durham.        James A. Beaty, Jr.,
District Judge. (CR-03-159)
                          ____________

Submitted:   March 24, 2006                  Decided:   July 10, 2006
                              ____________

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
                           ____________

Vacated and remanded by unpublished per curiam opinion.
                           ____________

Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, L.L.P.,
Greensboro, North Carolina, for Appellant.    Anna Mills Wagoner,
United States Attorney, Randall S. Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
                           ____________

Unpublished opinions are not binding precedent in this circuit.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

            Robert Andre Bacote pled guilty to robbery interfering

with commerce, 18 U.S.C. § 1951 (2000) (Hobbs Act), and to using

and carrying a firearm during and in relation to a crime of

violence, 18 U.S.C.A. §§ 924(c), 2 (West 2000 & Supp. 2005).                He

was sentenced as a career offender, U.S. Sentencing Guidelines

Manual § 4B1.1 (2001),1 to a term of 165 months imprisonment for

the robbery and a consecutive eighty-four months for the § 924(c)

conviction.    In a supplemental brief filed after United States v.

Booker, 543 U.S. 220 (2005), and Shepard v. United States, 544 U.S.

13 (2005), Bacote contests the career offender sentence, arguing

that the district court erred in deciding that his 1996 North

Carolina breaking and entering conviction was a crime of violence

under USSG § 4B1.2 and in applying the guidelines as mandatory.

For the reasons explained below, we vacate the sentence and remand

for resentencing.      We deny Bacote’s motions for a specific oral

argument date and for a continuance of oral argument.

            A defendant is a career offender if (1) he was at least

eighteen years old when he committed the instant offense; (2) the

instant offense is a felony that is either a crime of violence or

a   drug   offense;   and   (3)   he   has   at   least   two   prior   felony




      1
      Although Bacote was sentenced in November 2003, the probation
officer used the 2001 Guidelines Manual to avoid a possible
violation of the Ex Post Facto Clause.

                                   - 2 -
convictions of either a crime of violence or a drug offense.              USSG

§ 4B1.1(a).

           Under USSG § 4B1.2(a), to be a “crime of violence” for

career offender purposes, a prior offense must be one that

     (1)   has as an element the use, attempted use, or
           threatened use of physical force against the person
           of another, or

     (2)   is burglary of a dwelling, arson, or extortion,
           involves use of explosives, or otherwise involves
           conduct that presents a serious potential risk of
           physical injury to another.

           In    this   case,    the     presentence      report      contained

information about Bacote’s prior breaking and entering conviction

taken from police reports, which stated that Bacote entered a

garage attached to the victim’s residence through a side door and

stole a motorcycle and a go-cart by raising the garage door from

the inside.      Bacote was initially charged with second degree

burglary   but   pled   guilty   to    the    lesser   offense   of   felonious

breaking and entering.       Bacote objected to the career offender

sentence and was permitted to testify at the sentencing hearing.

He maintained that the offense involved entry into a storage shed

some forty feet from the house, not an attached garage.

           The only documents available to the sentencing court from

the prior proceeding were the original bill of information charging

second degree burglary of a dwelling and a judgment revoking the

sentence   of    probation   five     months    later.     The   judgment   of

revocation stated only that Bacote’s offense was breaking and

                                      - 3 -
entering in violation of N.C. Gen. Stat. § 14-54(a) (2003).                The

court    determined   that   it   could      not   engage   in   fact   finding

concerning the nature of the prior offense, and instead was bound

to follow the categorical approach mandated by Fourth Circuit

precedent to determine whether Bacote’s breaking and entering

offense was a crime of violence.          See United States v. Smith, 359

F.3d 662, 664 (4th Cir. 2004) (in determining whether an offense is

a crime of violence, the “sentencing court must confine its factual

inquiry to those facts charged in the indictment”) (quoting United

States v. Johnson, 953 F.2d 110, 113 (4th Cir. 1991)).              The court

decided that it could, consistent with the categorical approach,

consider the facts alleged in the information that charged Bacote

with    second   degree   burglary   of   a   dwelling.      The   court   thus

determined that the breaking and entering offense to which Bacote

pled guilty “contained the elements of a crime of violence” and

should be considered a predicate offense for a career offender

sentence.

            Because Bacote did not challenge his career offender

status on Sixth Amendment grounds in the district court, our review

is for plain error.       United States v. Olano, 507 U.S. 725, 732-37

(1993) (unpreserved error may be corrected only if error occurred,

that was plain and affects substantial rights, and if failure to

correct error would seriously affect the fairness, integrity, or




                                     - 4 -
public   reputation    of    judicial    proceedings);     United     States   v.

Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005) (same).

            Because Bacote pled guilty to a lesser offense, the

conduct set out in the original charging document is not the

conduct for which Bacote was convicted.          United States v. Martin,

215 F.3d 470, 473 (4th Cir. 2000).         Even if the district court may

consider facts alleged in the original charging document, it is

limited to those facts that correspond to the elements of the

lesser included offense. Id. (assuming without deciding that, when

a prior conviction is for a lesser included offense, the district

court may consider facts in the original indictment to determine

whether the offense was a crime of violence).

            Breaking   and    entering    is   not   one   of   the    offenses

enumerated in § 4A1.2(a)(2), and could, under N.C. Gen. Stat. § 14-

54, be committed by unlawful entry into either a dwelling or a non-

dwelling building.     The elements of the offense are: the breaking

or entering (2) of any building (3) with the intent to commit any

felony or larceny within. State v. Litchford, 338 S.E.2d 575 (N.C.

Ct. App. 1986).    Thus, the only fact alleged in the original bill

of information that the district court could consider is the

allegation that Bacote unlawfully entered an unspecified type of

building.    N.C. Gen. Stat. § 14-54(a).

            Although this court held in United States v. Bowden, 975

F.2d 1080, 1085 (4th Cir. 1992), that a violation of N.C. Gen.


                                   - 5 -
Stat. § 14-54 is “generic burglary,” see Taylor v. United States,

495 U.S. 575 (1990), and constitutes a “violent felony,” as defined

in 18 U.S.C.A. § 924(e)(2)(B)(ii) (West 2000 & Supp. 2005), for

purposes of sentencing a defendant as an armed career criminal, the

definition of a “crime of violence” used in § 4B1.2(a)(2) for a

career offender sentence is narrower, and includes only burglary of

a dwelling.

           Because the offense to which Bacote pled guilty did not

have as an element the use, attempted use, or threatened use of

physical force against another, § 4B1.2(a)(1), and was not burglary

of a dwelling, § 4B1.2(a)(2), the district court should have taken

the next step in the categorical approach and determined whether it

was an offense that, by its nature, “involves conduct that presents

a   serious   potential     risk    of   physical    injury       to   another.”

§ 4B1.2(a)(2); United States v. Washington, 404 F.3d 834, 837 (4th

Cir. 2005).     Instead, by finding that Bacote’s prior offense

involved   breaking   and   entering     of   a   dwelling,   a    fact   Bacote

disputed, the district court resolved a factual dispute about the

prior conviction by taking as true an allegation not contained in

the charging document that pertained to the offense to which Bacote

pled guilty. Because the district court enhanced Bacote’s sentence

based on its factual finding about the prior conviction, a Sixth

Amendment error occurred.          See Shepard, 544 U.S. at 16 (holding

that sentencing court may not refer to police reports or complaint


                                     - 6 -
applications to determine nature of prior conviction because Sixth

Amendment   protections     apply   to   disputed      facts   about   a   prior

conviction that are not evident from “the conclusive significance

of a prior judicial record”); United States v. Collins, 412 F.3d

515, 522-24 (4th Cir. 2005) (career offender sentence did not

violate Sixth Amendment because court not required to determine any

disputed fact about prior convictions); Washington, 404 F.3d at 843

(district court’s determination, after fact-finding, that prior

conviction was a crime of violence did not come within Apprendi2

exception for “fact of a prior conviction”).

            Without   the   challenged      career   offender    enhancement,

Bacote’s offense level would be 20.          With twelve criminal history

points, he would be in category V.             For purposes of determining

Booker error, this court uses the guideline range based on the

facts the defendant admitted before the range is adjusted for

acceptance of responsibility.        United States v. Evans, 416 F.3d

298, 300 n.4 (4th Cir. 2005).            Because Bacote was in criminal

history category V, the guideline range under this calculation

would be 63-78 months, with a consecutive sentence of eighty-four

months for the § 924(c) conviction.         The total punishment possible

without a departure would be 162 months.             The 249-month sentence

imposed by the district court exceeds the maximum authorized based

on   the   facts   Bacote   admitted,    and    thus    violated   the     Sixth


      2
       Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

                                    - 7 -
Amendment.    The sentence constituted plain error under Booker and

Hughes, and the error affected Bacote’s substantial rights.                     We

therefore exercise our discretion to notice the error.3

             Although   the    sentencing      guidelines     are    no    longer

mandatory, Booker makes clear that a sentencing court must still

“consult     [the]   Guidelines     and     take   them   into   account       when

sentencing.”     543 U.S. at 264.           On remand, the district court

should first determine the appropriate sentencing range under the

guidelines,    making   all    factual      findings   appropriate    for      that

determination. Hughes, 401 F.3d at 546. The court should consider

this sentencing range along with the other factors described in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a

sentence.     Id.    If that sentence falls outside the guidelines

range, the court should explain its reasons for imposing a non-

guidelines sentence as required by 18 U.S.C.A. § 3553(c)(2).                   Id.

The sentence must be “within the statutorily prescribed range and

. . . reasonable.”      Id.

             Accordingly,     we   vacate    the   sentence   imposed     by   the

district court and remand for resentencing consistent with Booker

and Shepard. We deny Bacote’s motions for a specific oral argument


     3
      Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Bacote’s sentencing. Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
U.S. 461, 468 (1997) (stating that an error is “plain” if “the law
at the time of trial was settled and clearly contrary to the law at
the time of appeal”).

                                     - 8 -
date and for a continuance of argument.    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.



                                             VACATED AND REMANDED




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