                                     PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 15-4684


UNITED STATES OF AMERICA,

                    Plaintiff – Appellee,

             v.

JERROD LAQON MACK,

                    Defendant – Appellant.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:15-cr-00255-CCE-1)


Argued: December 8, 2016                                          Decided: May 1, 2017


Before NIEMEYER, KING, and AGEE Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King
and Judge Agee joined.


ARGUED: Mireille P. Clough, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Winston-Salem, North Carolina, for Appellant. Kyle David Pousson, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON
BRIEF: Louis C. Allen, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
NIEMEYER, Circuit Judge:

       After Jerrod Laqon Mack pleaded guilty to possession of a stolen firearm knowing

that it was stolen, in violation of 18 U.S.C. § 922(j) and § 924(a)(2), the district court

sentenced him to 70 months’ imprisonment, a sentence at the low end of the range

recommended by the Sentencing Guidelines. In calculating the recommended Guidelines

range, the court applied U.S.S.G. § 2K2.1(a)(2) (2014), which provided for a base offense

level of 24 for the firearm offense at issue when the defendant has “at least two [prior]

felony convictions of either a crime of violence or a controlled substance offense.” The

court relied on Mack’s two prior North Carolina convictions for (1) attempted first-

degree burglary and conspiracy to commit first-degree burglary, and (2) felony breaking

and entering, concluding that they were crimes of violence as defined in U.S.S.G. §

4B1.2(a) (2014). With respect to the first of these prior convictions, the court relied on

the commentary to § 4B1.2, which provided that the term “‘[c]rime of violence’ . . .

include[s] the offense of . . . conspiring[] and attempting to commit such offenses.” Id.

cmt. n.1.

       Challenging his sentence on appeal, Mack argued that because conspiracies and

attempts to commit burglary do not constitute the completed crime of burglary, as

enumerated in the text of § 4B1.2(a), the Guidelines Commentary relied on by the district

court to include conspiracies and attempts must be a construction of § 4B1.2(a)(2)’s

“residual clause.” The residual clause includes in the definition of crime of violence any

crime involving “conduct that presents a serious potential risk of physical injury to

another.” He reasoned that because the Supreme Court in Johnson v. United States, 135

                                            2
S. Ct. 2551 (2015), found the same residual-clause language, as contained in the Armed

Career Criminal Act of 1984 (“ACCA”), unconstitutionally vague, the residual clause in

§ 4B1.2(a)(2) is likewise unconstitutionally vague, thus invalidating the text for which

the Commentary provides explanation.

       The government conceded that Johnson prevented the district court from relying

on the residual clause in U.S.S.G. § 4B1.2(a)(2). But it contended that Mack’s prior

conviction for attempting and conspiring to commit first-degree burglary nonetheless

qualified as a crime of violence because the Commentary’s inclusion of inchoate offenses

such as conspiracies and attempts was a valid construction of the broader term “crime of

violence,” rather than necessarily being an interpretation of the residual clause.

       After we heard oral argument, the Supreme Court decided Beckles v. United

States, 137 S. Ct. 886 (2017), which held that the Sentencing Guidelines are not subject

to vagueness challenges under the Due Process Clause and therefore that § 4B1.2(a)(2)’s

residual clause is not void for vagueness. Based on Beckles, we now reject Mack’s

vagueness challenge to § 4B1.2(a). Concluding that Mack’s North Carolina conviction

for attempting and conspiring to commit first-degree burglary qualifies as a crime of

violence under § 4B1.2(a)(2), we affirm the district court’s sentence.



                                              I

       In sentencing Mack, the district court determined that his base offense level was

24, as provided in U.S.S.G. § 2K2.1(a)(2) for defendants convicted of violating 18 U.S.C.

§ 922(j) who have two prior convictions for a “crime of violence.”             Applying the

                                              3
definition of “crime of violence” provided in U.S.S.G. § 4B1.2(a), the court found that

Mack had two prior North Carolina convictions that satisfied this predicate-crimes

requirement. The presentence report, on which the court relied, showed that Mack was

sentenced in November 2012 in North Carolina state court to 25 to 42 months’

imprisonment for having committed “felony attempted first degree burglary” and “felony

conspiracy to commit first degree burglary” in May 2012, in violation of N.C. Gen. Stat.

§ 14-51. It also showed that Mack was sentenced in March 2014 in state court to 8 to 19

months’ imprisonment for “felony breaking and entering” in June 2012, in violation of

N.C. Gen. Stat. § 14-54.

      While Mack did not, at sentencing, dispute his criminal record, he argued that after

the Supreme Court’s decision in Johnson, his conviction of attempting and conspiring to

commit first-degree burglary did not qualify as a crime of violence under § 4B1.2(a).

That section, in the version in force at the time of Mack’s sentencing, defined a “crime of

violence” as:

      [A]ny offense under federal or state law, punishable by imprisonment for a
      term exceeding one year, 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.




                                             4
U.S.S.G. § 4B1.2(a) (2014) (emphasis added to the residual clause). 1 And Application

Note 1 to § 4B1.2 provided that a “‘[c]rime of violence’ . . . include[s] the offenses of

aiding and abetting, conspiring, and attempting to commit such offenses.” (Emphasis

added). Mack argued that because the language of the residual clause in § 4B1.2(a) was

the same as the language in the residual clause in ACCA, which Johnson had held was

unconstitutionally vague, the residual clause in the Sentencing Guidelines was likewise

invalid. He argued further that the text of § 4B1.2(a) included only the completed crime

of “burglary of a dwelling,” such that the government would have to rely on the residual

clause to cover his conspiracy and attempt conviction. And because the residual clause

was invalid, the district court could not rely on the commentary to include inchoate

offenses such as conspiracy and attempt.

      The district court rejected Mack’s arguments, concluding that Application Note 1

to § 4B1.2(a) had the force of law and therefore that Mack’s conspiracy and attempt

conviction was a crime of violence.

      From the district court’s judgment, Mack filed this appeal.




      1
          After the sentencing in this case, which took place on October 15, 2015, the
Sentencing Commission amended U.S.S.G. § 4B1.2(a), effective August 1, 2016, by,
among other things, deleting the residual clause and expanding the “enumerated offense
clause.” The Commission explained that the change was made because of a lack of
clarity in the residual clause that had prompted a significant amount of litigation,
particularly after Johnson. Amend. 798, U.S.S.G. app. C, at 127–30 (Supp. Nov. 1,
2016).

                                           5
                                            II

      Mack’s sole argument on appeal is that his North Carolina felony conviction for

conspiracy and attempt to commit first-degree burglary is not a crime of violence under

the Sentencing Guidelines’ definition in § 4B1.2(a) and therefore that his base offense

level for his illegal possession of a stolen firearm violation should not have been

enhanced based on this conviction. He argues that because Johnson held that the residual

clause in ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague, the

Guidelines’ residual clause in § 4B1.2(a)(2), which uses the same language, is likewise

unconstitutionally vague.

      After Mack made that argument, both in his brief and at oral argument, the

Supreme Court issued its decision in Beckles, 137 S. Ct. 886. In Beckles, the petitioner

was convicted of possession of a firearm by a felon and sentenced as “career offender”

under the Sentencing Guidelines — a sentencing enhancement that, like Mack’s base

offense level, depended on the defendant having two prior convictions for a “crime of

violence,” as that term is defined in U.S.S.G. § 4B1.2(a). Id at 890–91. The petitioner

challenged his sentence, arguing that one of his prior convictions was not a crime of

violence after the Court’s decision in Johnson.       Id. at 891–92.     The government

conceded, as it did here, that the residual clause in § 4B1.2(a) was unconstitutionally

vague, but it argued that the petitioner’s sentence nonetheless remained valid. Id. at 892.

The Court, however, did not accept the government’s concession. Instead, it rejected the

petitioner’s effort to apply Johnson to the Sentencing Guidelines, explaining:



                                            6
       Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible
       range of sentences. To the contrary, they merely guide the exercise of a
       court’s discretion in choosing an appropriate sentence within the statutory
       range. Accordingly, the Guidelines are not subject to a vagueness
       challenge under the Due Process Clause.            The residual clause in
       § 4B1.2(a)(2) therefore is not void for vagueness.

Id.

       This decision clearly forecloses Mack’s argument based on Johnson. With the

residual clause remaining in force, we must now apply § 4B1.2(a) with all its relevant

language, including the residual clause and any Guidelines Commentary that may explain

it.

       Mack concedes that “with . . . § 4B1.2(a)(2)’s residual clause intact, the

commentary that includes attempts and conspiracies as crimes of violence [is] consistent

with the language of the guideline.” See Stinson v. United States, 508 U.S. 36, 38 (1993)

(“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is

authoritative unless it . . . is inconsistent with, or a plainly erroneous reading of, that

guideline”). This concession represents a common-sense understanding of the residual

clause — inchoate crimes that would qualify as violent if completed “present[] a serious

potential risk of physical injury to another.”         U.S.S.G. § 4B1.2(a)(2) (2014).

Accordingly, because the completed crime of “burglary of a dwelling” is enumerated as a

crime of violence in the text of § 4B1.2(a), it follows that, based on the Commentary,

attempts and conspiracies to commit “burglary of a dwelling” similarly qualify. The

question remains, however, whether the North Carolina crime of first-degree burglary,

N.C. Gen. Stat. § 14-51, qualifies as a crime of violence under § 4B1.2(a) (2014).


                                            7
       In making this determination, we use a two-step “categorical approach.” See

United States v. Peterson, 629 F.3d 432, 435 (4th Cir. 2011). First, we establish the

“generic” definition of the Guidelines-enumerated offense, either from prior cases or,

where courts have not interpreted the enumerated offense, by “distill[ing] a ‘generic’

definition of the predicate offense based on how the offense is defined ‘in the criminal

codes of most states.’” Id. at 436 (quoting Taylor v. United States, 495 U.S. 575, 598

(1990)). Then we decide whether the state offense is a “categorical match” to the generic

offense — that is, whether a defendant convicted of the state offense necessarily satisfied

the elements of the generic offense. If so, the defendant’s conviction for the state offense

counts as a conviction of the Guidelines-enumerated offense.

       The generic definition of burglary is well established to mean the “unlawful or

unprivileged entry into . . . a building or other structure, with intent to commit a crime.”

Taylor, 495 U.S. at 598. And with the added requirement in § 4B1.2(a)(2) that the

burglary be “of a dwelling,” the Taylor requirement of a “building or other structure” is,

in turn, limited to a dwelling. See United States v. Bonilla, 687 F.3d 188, 190 n.3 (4th

Cir. 2012). In other words, to qualify categorically, the state offense must require (1) the

unlawful or unprivileged entry into a dwelling (2) with intent to commit a crime.

       Applying these principles, we conclude that a North Carolina conviction of first-

degree burglary under N.C. Gen. Stat. § 14-51 categorically matches the generic

definition of burglary of a dwelling in § 4B1.2(a). To obtain a conviction for first-degree

burglary in North Carolina, the State must prove “(i) the breaking (ii) and entering (iii) in

the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which

                                             8
is actually occupied at the time of the offense (vii) with the intent to commit a felony

therein.” State v. Singletary, 472 S.E.2d 895, 899 (N.C. 1996) (emphasis added) (citing

N.C. Gen. Stat. § 14-51). While this formulation does not explicitly require an “unlawful

or unprivileged entry,” state decisions show that it is an essential element of the North

Carolina crime. See State v. Upchurch, 421 S.E.2d 577, 588 (N.C. 1992) (noting that to

support a conviction for first-degree burglary, the breaking and entering must be “without

the consent of anyone authorized to give consent”).          Accordingly, Mack’s prior

conviction in North Carolina for conspiracy and attempt to commit first-degree burglary

is a crime of violence under § 4B1.2(a). 2

       In sum, we conclude that the district court properly considered Mack’s North

Carolina conviction for conspiring and attempting to commit first-degree burglary as a

predicate offense under § 2K2.1(a)(2), which provides for a base offense level of 24

       2
          Mack does not challenge the district court’s use of his prior conviction
for felony breaking and entering under N.C. Gen. Stat. § 14-54 as the second predicate
crime of violence required by U.S.S.G. § 2K2.1(a)(2). Nonetheless, the government
notified us after oral argument that it had abandoned its argument that the North Carolina
breaking and entering conviction qualified as “burglary of a dwelling” for purposes of
U.S.S.G. § 4B1.2(a). It maintains, however, that the felony breaking and entering offense
would still qualify as a crime of violence under the residual clause in § 4B1.2(a)(2),
citing Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (construing 18 U.S.C. § 16(b)’s residual
clause and explaining that “burglary would be covered . . . because burglary, by its
nature, involves a substantial risk that the burglar will use force against a victim in
completing the crime”). See also In re Hubbard, 825 F.3d 225, 230 (4th Cir. 2016)
(assuming that defendant’s ability to challenge use of Kentucky third-degree burglary as
a predicate offense supporting a Guidelines enhancement depended on § 4B1.2’s residual
clause being invalid); United States v. Mungro, 754 F.3d 267, 270 (4th Cir. 2014)
(holding that North Carolina breaking and entering qualifies as generic “burglary” for
purposes of ACCA, as it requires an “unlawful or unprivileged” entry). Because this
issue has not been raised on appeal, we do not address it.


                                             9
when the defendant has “at least two felony convictions of . . . a crime of violence,” as

that term is defined in § 4B1.2(a).

                                                                            AFFIRMED




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