                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 13-4204


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

HAROLD LEE SMALLS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:09-cr-01339-PMD-1)


Submitted:   January 30, 2014                 Decided:    March 7, 2014


Before FLOYD and    THACKER,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, Nick Bianchi, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Harold Smalls, Jr., pled guilty to possession of a

firearm    by     a    felon,     in    violation          of    18    U.S.C.    §     922(g)(1)

(2012), and possession with intent to distribute cocaine base

(“crack”),        in     violation        of     21        U.S.C.      §      841(a)     (2012),

conditioned on his right to appeal the district court’s denial

of his suppression motion.                The district court sentenced Smalls

to   180   months       of    imprisonment         and     Smalls      appealed.         On   the

Government’s motion, however, we remanded the case to allow the

district court to hold a second suppression hearing.

            On        remand,     the   district         court      again     denied     Smalls’

suppression motion and also denied Smalls’ motion to dismiss the

indictment.       Smalls again pled guilty to the charges, reserving

his right to appeal the denials of his motions.                               The court again

sentenced       Smalls       to   180   months        of    imprisonment         and     he   now

appeals.    For the reasons that follow, we affirm.

             Smalls first argues that the district court erred in

denying     his       suppression       motion.            “In    reviewing       a    district

court’s ruling on a motion to suppress, we review the court’s

factual findings for clear error, and its legal conclusions de

novo.”     United States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008)

(citation       omitted).          When    the     district           court    has     denied   a

defendant’s suppression motion, we construe the evidence in the



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light    most    favorable       to    the       government.          United    States    v.

Grossman, 400 F.3d 212, 216 (4th Cir. 2005).

                “It is well established that the temporary detention

of individuals during the stop of an automobile by the police

. . . constitutes a seizure, no matter how brief the detention

or how limited its purpose.”                 United States v. Branch, 537 F.3d

328, 335 (4th Cir. 2008) (internal quotation marks and citations

omitted).        However, “[o]bserving a traffic violation provides

sufficient      justification         for    a    police      officer    to     detain   the

offending       vehicle   for     as    long       as    it   takes     to    perform    the

traditional         incidents     of     a       routine      traffic        stop.”      Id.

(citations omitted).            We have reviewed the record and conclude

that the district court did not err in finding the stop of

Smalls’ vehicle was justified based on the violations of state

law witnessed by the officers.

              Smalls next argues that the court erred in denying his

motion   to     dismiss    the       indictment         based    on    the    Government’s

failure to notify Smalls that a grand jury had been convened.

We review a district court’s denial of a motion to dismiss an

indictment de novo where the motion presents only a question of

law.     United States v. Hatcher, 560 F.3d 222, 224 (4th Cir.

2009).        Our    review     of     the   record        and   the    relevant      legal

authorities leads us to conclude that the court did not err in

denying Smalls’ motion.

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             Smalls    next     challenges     the    district      court’s      finding

that he qualified for enhanced penalties under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2012).                         Smalls argues

that   the    court     erred    in    enhancing       the     statutory      mandatory

minimum based on his prior convictions because they were not

alleged in the indictment, and argues that his prior burglary

convictions did not categorically qualify as violent felonies.

In Alleyne v. United States v. United States, ___ U.S. ___, 133

S. Ct. 2151 (2013), the Supreme Court determined that facts that

increase     a   statutory       minimum,      like    those       that    increase   a

statutory maximum, must be alleged in the indictment and either

admitted by the defendant or found by a jury beyond a reasonable

doubt.     Id. at 2159-64.        The Court was careful to note, however,

that the narrow exception to the general rule for the fact of a

prior exception, as recognized in Alemendarez-Torres, 523 U.S.

224 (1998), was “not revisit[ed]” in Alleyne.                        133 S. Ct. at

2160 n.1.           See United States v. Blair, 734 F.3d 218, 227 (3d

Cir. 2013).

             With     respect     to    Smalls’       other    argument       regarding

application      of    the    ACCA,    while    Smalls        challenged      the   ACCA

designation before the district court, he challenged only the

district     court’s     separate      consideration          of   his     ten   robbery

convictions, insisting that they should be counted as only one

conviction under the ACCA.             He did not, however, raise the issue

                                          4
he   raises     on     appeal,       that    his         burglary      convictions      did    not

categorically qualify as violent felonies.                              Therefore, we review

this issue for plain error.                      See Fed. R. Crim. P. 52(b); see

also   United       States     v.    Lynn,       592      F.3d    572,    577-78    (4th      Cir.

2010).     To establish plain error, Smalls must show that an error

occurred,      the     error     was    plain,           and     the    error   affected       his

substantial rights.             Id. at 577.

               Under    the     ACCA,       if       a    defendant       is    convicted       of

violating § 922(g) and has sustained three prior convictions for

violent felonies or serious drug offenses committed on occasions

different      from     one     another,         the      defendant       is    subject    to    a

statutory mandatory minimum of fifteen years of imprisonment.

18 U.S.C. § 924(e)(1).               A violent felony is defined as a “crime,

punishable by a term exceeding one year of imprisonment, . . .

that   .   .    .    has   as    an    element            the    use,    attempted      use,    or

threatened use of force against the person of another; or is

burglary . . . or otherwise involves conduct that presents a

serious    potential          risk     of    injury         to    another.”        18     U.S.C.

§ 924(e)(2)(B)(i)-(ii).                A serious drug offense is any offense

under state law that involves the distribution or possession

with intent to distribute a controlled substance for which a

maximum term of imprisonment of ten years or more is prescribed

by law.     18 U.S.C. § 924(e)(2)(A).                      We have thoroughly reviewed

the record and the relevant legal authorities and conclude that

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the district court did not err in determining that Smalls had

sustained    at   least   three   prior   felonies    that   qualified   as

predicates under the ACCA.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions   are   adequately   presented    in    the   materials

before this court and argument would not aid in the decisional

process.

                                                                    AFFIRMED




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