                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4203


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES EDWARD BURTON,

                Defendant - Appellant.

                         ________________

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (7:09-cr-00085-D-1)
                        ________________

Submitted:   November 28, 2011         Decided:    February 7, 2012
                          ________________

Before WILKINSON and DUNCAN, Circuit Judges, and Richard M.
GERGEL, United States District Judge for the District of South
Carolina, sitting by designation.
                         ________________

Affirmed by unpublished opinion.        Judge Gergel wrote      the
opinion, in which Judge Wilkinson and Judge Duncan joined.
                         ________________

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
                         ________________

Unpublished opinions are not binding precedent in this circuit.
GERGEL, District Judge:

       Appellant,       James    Edward   Burton       (“Burton”),       challenges           in

this appeal his sentence under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), on the basis that he did not have

three prior convictions for violent felonies.                          Burton did not

challenge the findings of the Presentence Report (“PSR”) that he

had    three      prior     convictions    for     violent       felonies,         and     his

attorney expressly admitted at the sentencing hearing before the

District Court that Burton had “three prior felony convictions

that       qualify   as    predicates     under    924(e).”           J.A.    57. 1           The

District        Court     sentenced   Burton      to    180    months,       the    minimum

sentence authorized under the ACCA.                    Burton thereafter filed an

appeal challenging his sentence, contending for the first time,

and contrary to his counsel’s admissions in filings submitted to

the District Court and in open court, that he did not qualify as

an armed career criminal under the ACCA.                      We review the sentence

imposed by the District Court for “plain error” and affirm.



                                           I.

       Burton was arrested on January 2, 2009 following a traffic

stop       in   which     an   officer    detected      what     appeared      to        be    a

concealed weapon in Burton’s pocket, and which proved from a


       1
       The abbreviation “J.A.” refers                     to    the    Joint       Appendix
submitted by the parties on appeal.


                                            2
search to be a loaded .32 caliber handgun.                         J.A. 83.          Burton was

subsequently indicted by a federal grand jury on July 9, 2009

for knowingly possessing a firearm after being convicted of a

crime    punishable          by   more     than     one    in     year      in    prison,     in

violation of 18 U.S.C. § 922(g)(1) and § 924.                            Id. at 7-8.          The

indictment        further         stated       that     Burton        had        three     prior

convictions       for        violent     felonies,         making        him      subject      to

sentencing under the ACCA.                    Id. at 8.         The ACCA requires that

any   person      with       three   prior      violent        felony    or      serious     drug

convictions serve a mandatory minimum sentence of fifteen years

on certain subsequent federal convictions.                        18 U.S.C. § 924(e).

        Burton subsequently pled guilty to the charge contained in

the federal indictment, and a PSR was prepared.                                  The PSR set

forth Burton’s prior criminal convictions under North Carolina

law that included a 1970 conviction for “assault with a deadly

weapon     with      the      intent     to     kill    inflicting          serious      bodily

injury,” a 1974 conviction for first degree rape, and a 1995

conviction     for       second      degree     rape.          J.A.     83-85.         The    PSR

described      the     circumstances           of   Burton’s       second        degree      rape

conviction, which included the choking of the victim and the

displaying        of     a     straight        razor      to     coerce        the     victim’s

submission.        Id. at 84-85.              The PSR made a finding that Burton

was an armed career criminal under the ACCA because of the three

above-referenced convictions for violent felonies.                             Id. at 88.


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      Burton did not object to any of the facts underlying the

1970, 1974, and 1995 convictions or his designation as an armed

career   criminal     under   the   ACCA   as   set     forth    in    the    PSR.

Instead, Burton urged the District Court in his formally filed

objections to the PSR not to make an upward departure from the

mandatory minimum sentence under the ACCA of fifteen years.                    Id.

at 91.    A sentencing memorandum submitted by Burton’s counsel

described the 1995 second degree rape conviction as Burton’s

“most recent violent felony” and conceded that “[a]s an ‘armed

career criminal,’ Mr. Burton faces a minimum 15-year sentence.”

Id. at 42, 44.         At the sentencing hearing, Burton’s counsel

acknowledged   that    Burton   “has   three    prior    felony       convictions

that qualify as predicates under 924(e)” and “certainly” had

“prior violent felonies” making him subject to the ACCA.                  Id. at

57-58.   Nonetheless, Burton’s counsel argued that the District

Court should sentence his client to less than the fifteen year

mandatory minimum sentence under the ACCA because Burton’s most

recent violent felony (the 1995 second degree rape conviction)

was “over 17 years ago and . . . there is nothing to indicate

that he is likely to engage in the future [in] violent conduct.”

Id. at 57.     The District Court concluded that it was bound by

the   mandatory     minimum   sentence     provision     of     the    ACCA   and

sentenced Burton to 180 months in prison.          Id. at 70.




                                       4
        Burton     timely        filed        this    appeal.           On   appeal,        Burton

concedes that the convictions for assault with a deadly weapon

with the intent to kill inflicting serious bodily injury and for

first    degree      rape      are       both    violent       felony    convictions         which

qualify      as    predicate         convictions         for    purposes        of    the    ACCA.

Appellant’s Br. at 8 n.1.                     Further, Burton does not dispute the

PSR’s    description           of   the       facts   which     form     the    basis       of   his

second degree rape conviction.                       However, Burton argues on appeal

that the District Court erred in treating his conviction for

second degree rape as a “violent felony” for purposes of the

ACCA.     Id. at 11-16.

        On appeal, the government argues that Burton “waived” the

right to appeal the District Court’s decision to sentence him

under    the      ACCA.        Appellee’s         Br.    at    10-12.        While     the       mere

“forfeiture” of a right allows an appellant to seek appellate

review under the plain error standard, the “waiver” of a right

prevents a party from seeking an appeal under any standard of

review.      See United States v. Olano, 507 U.S. 725, 733-34 (1993)

(distinguishing between forfeiture and waiver and holding that

“[i]f    a     legal      rule      was    violated      during        the     district      court

proceedings, and if the defendant did not waive the rule, then

there    has      been    an     ‘error’        within   the     meaning       of    Rule    52(b)

despite      the    absence         of    a     timely   objection”).               This    Court,

however, need not reach the question of whether Burton waived,


                                                  5
or merely forfeited, the right to appeal the District Court’s

decision to sentence him under the ACCA.                            As discussed below,

even if Burton did not waive his right to appeal his sentence,

the    District    Court    did    not    commit        plain   error       in        sentencing

Burton under the ACCA.



                                              II.

       Under   plain       error    review,          Burton     has        the    burden      of

establishing (1) an error, (2) that is plain, that not only (3)

affects his substantial rights, but also (4) seriously affects

the    fairness,     integrity,          or    public       reputation           of     judicial

proceedings.       United States v. Brack, 651 F.3d 388, 392 (4th

Cir. 2011).       “An error is ‘plain’ when it is ‘obvious or clear

under current law,” meaning that the appellant must “show that

‘the    settled     law     of     the        Supreme       Court     or     this        circuit

establishes’ the district court erred in imposing a sentencing

enhancement.”      Id. (citation omitted).

       Here, the record establishes that the District Court did

not commit plain error in classifying Burton’s second degree

rape    conviction     as    a     violent         felony     and    sentencing           Burton

pursuant to the ACCA.              The PSR, in addition to describing the

violent    nature    of     Burton’s          conduct       which     resulted          in   his

conviction for second degree rape, clearly identified Burton’s

second degree rape conviction (along with his assault with a


                                               6
deadly weapon and first degree rape convictions) as a predicate

conviction for purposes of the ACCA.                     J.A. 88.         Because Burton

did not object to this portion of the PSR, the District Court

was certainly authorized to accept this portion of the PSR as a

finding of fact.        Fed. R. Crim. P. 32(i)(3) (“At sentencing, the

court: (A) may accept any undisputed portion of the presentence

report    as    a   finding     of   fact.”);      see     also     United    States      v.

Padron, No. 09-4486, 2010 WL 5475654, at *1 (4th Cir. Dec. 9,

2010)    (holding     that    the    District      Court      did   not    commit      plain

error by accepting undisputed portions of a PSR as findings of

fact    for    purposes    of   sentencing        enhancements).            Furthermore,

Burton, through his counsel, affirmatively represented to the

District      Court   numerous       times,      both    in   writing      and    in    open

court, that Burton had been convicted of three violent felonies

and    was     therefore     subject    to       the    ACCA’s      15-year      mandatory

minimum prison sentence.              See J.A. 42, 44, 45, 57, 91.                      Such

admissions by defense counsel are binding on the defendant.                              See

United States v. Bartram, 407 F.3d 307, 310-11 (4th Cir. 2005)

(holding that an admission by defense counsel at a sentencing

hearing regarding drug weight was binding on defendant).

       Based on the foregoing, the District Court’s sentence of

Defendant under the ACCA was not plain error.                          Therefore, the

decision of the District Court is affirmed. This Court requires

that counsel inform his client, in writing, of his right to


                                             7
petition   the     Supreme    Court       of       the   United    States      for   further

review.    If the client requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel    may    move   in   this    Court          for   leave    to   withdraw       from

representation.       Counsel’s motion must state that a copy thereof

was served on the client.             We dispensed with oral argument for

this   appeal      because    the     facts          and   legal     contentions        were

adequately       presented    in    the    materials         before      the    Court    and

argument would not aid the decisional process.

                                                                                     AFFIRMED




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