                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4148


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ROBERT HICKMAN,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:08-cr-00507-TLW-1)


Submitted:    November 5, 2009              Decided:   December 28, 2009


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Carrie A. Fisher, Assistant United States Attorney,
Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Robert       Hickman        pled       guilty     pursuant       to     a    plea

agreement    to     one    count        of   being     a     felon    in   possession       of

ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2),

(e) (2006).        He was found to be an armed career criminal under

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

U.S.    Sentencing        Guidelines         Manual        § 4B1.4     (2007),      and    was

sentenced to 185 months’ imprisonment.                       Hickman appeals, arguing

that the district court erred in concluding that his prior South

Carolina     convictions      for        burglary      in     the     third      degree    and

failure to stop for a blue light qualified as predicate offenses

warranting    application          of    the    enhanced       penalty      of     the    ACCA.

Finding no error, we affirm.

             In    determining          whether      the     district      court    properly

sentenced Hickman as an armed career criminal, we review its

factual findings for clear error and its legal conclusions de

novo.      E.g.,    United    States          v.    Wardrick,        350   F.3d    446,     451

(4th Cir. 2003).          A defendant is subject to the enhanced penalty

of the ACCA when he violates 18 U.S.C. § 922(g)(1) and has three

prior convictions for violent felonies or serious drug offenses.

18 U.S.C. § 924(e)(1).             A violent felony is one that “has as an

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

force against the person of another,” “is burglary, arson, or

extortion,    involves       use    of       explosives,       or    otherwise      involves

                                                2
conduct    that    presents      a    serious           potential      risk   of   physical

injury to another.”           Id. § 924(e)(2)(B)(i)-(ii).

            To determine whether a state offense falls within the

definition of a violent felony, we employ a categorical approach

that “takes into account only the definition of the offense and

the fact of conviction.”             United States v. Pierce, 278 F.3d 282,

286 (4th Cir. 2002).             The particular label or categorization

under   state     law    is    not   controlling.                See     Taylor v.   United

States, 495 U.S. 575, 590-91 (1990).                          For purposes of the ACCA,

“a    person    has     been     convicted             of     burglary . . . if      he     is

convicted of any crime, regardless of its exact definition or

label, having the basic elements of unlawful or unprivileged

entry   into,     or    remaining       in,       a    building     or    structure,      with

intent to commit a crime.”              Id. at 599 (emphasis added).                   While

a court normally may look only to the fact of the conviction and

the   statutory    definition,          because         some     states    broadly   define

burglary to include places other than buildings, the categorical

approach “may permit the sentencing court to go beyond the mere

fact of conviction.”           Id. at 602; see Shepard v. United States,

544 U.S.   13,    16-17       (2005).         A       state    offense    will   constitute

burglary if the jury was required “to find all the elements of

generic burglary in order to convict the defendant,” and “the

indictment or information and jury instructions show that the

defendant was charged only with a burglary of a building,” so

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“the jury necessarily had to find an entry of a building to

convict.”      Taylor, 495 U.S. at 602.

               Under South Carolina law, “[a] person is guilty of

burglary in the third degree if the person enters a building

without   consent       and   with   intent    to   commit     a    crime       therein.”

S.C.    Code    Ann.    § 16-11-313(A)       (2003).        For    purposes       of   the

statute, a building means “any structure, vehicle, watercraft,

or       aircraft . . . [w]here              any       person            lodges          or

lives . . . people        assemble . . . or         where     goods      are     stored.”

S.C.    Code    Ann.    § 16-11-310(1)(a)-(b)        (2003).            South    Carolina

defines    burglary      in   the    third    degree   more       broadly       than   the

generic definition.           Therefore, we must determine whether the

jury would have been required to find Hickman guilty of generic

burglary in order to convict him.

               A district court may rely on a prepared presentence

investigation report (“PSR”) to determine whether a prior crime

qualifies as a predicate offense under the ACCA.                            See United

States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005).                           The PSR

prepared for Hickman’s sentencing reveals that his conviction

for    burglary    in   the   third    degree      involved       his    entry    into    a

building.       Therefore, this offense constituted generic burglary

for purposes of the ACCA.            Despite Hickman’s argument that Begay




                                         4
v.   United     States,    128 S. Ct.     1581   (2008), 1   and   its    progeny

require a different analysis to determine whether a prior crime

qualifies as a violent felony, the Supreme Court made clear in

Begay that § 924(e)(2)(B)(ii) still “covers a felony that is one

of the example crimes” specifically enumerated in the statute.

Id. at 1586.        Because Hickman concedes that he has two other

prior convictions that qualify as predicate offenses under the

ACCA,     we   conclude    that    the   district   court    did   not    err   in

applying the enhancement. 2

               Accordingly, 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




      1
        Begay held that, under the “residual clause” of
§ 924(e)(2)(B)(ii), a predicate offense must be similar to one
of the four enumerated violent felonies, not only in degree of
risk posed, but in kind--it must be “purposeful, violent, and
aggressive conduct.” 128 S. Ct. at 1585-86.
      2
       In light of our determination that Hickman’s conviction
for burglary in the third degree constituted a third predicate
offense under the ACCA, we need not evaluate whether Hickman’s
conviction for failure to stop for a blue light also qualified
as a predicate offense.



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