                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-5115


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ALTARIK ALSTON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:07-cr-00266-D-1)


Submitted:    August 27, 2009                 Decided:   October 2, 2009


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lewis A. Thompson, III, BANZET, THOMPSON & STYERS, P.L.L.C.,
Warrenton, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Altarik Alston pled guilty to possession of a firearm

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

924(a)(2)    (2006).          Alston    was      found     to       be    an   armed       career

criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e) (2006), and U.S. Sentencing Guidelines Manual (“USSG”)

§   4B1.4   (2007),     and     was    sentenced      to     186         months     in    prison.

Alston appeals, arguing that the district court erred in finding

that he possessed three violent felonies qualifying as predicate

offenses.      Finding no error, we affirm.

            Because Alston failed to raise this objection during

sentencing,     this    court’s       review     is    for      plain       error.         United

States v. Olano, 507 U.S. 725, 732 (1993); United States v.

White, 405 F.3d 208, 215 (4th Cir. 2005).                       Alston must establish

that an error occurred, that the error was plain, and that the

error affected his substantial rights.                   Olano, 507 U.S. at 732.

            A    defendant       is    an    armed     career            criminal        when   he

violates § 922(g)(1) and has three prior convictions for violent

felonies or serious drug offenses.                    18 U.S.C. § 924(e)(1); USSG

§ 4B1.4(a).      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,         .    .     .   or    otherwise

involves    conduct      that    presents        a    serious        potential           risk   of

physical injury to another.”                 18 U.S.C. § 924(e)(2)(B)(i)-(ii).

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               To determine whether an offense under state law falls

within the definition of a violent felony, this court uses a

categorical       approach,        which     “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.

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; Shepard v.

United    States,      544     U.S.   13,   16-17     (2005).          An   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 “the jury necessarily had to find an entry of a

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

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            Under North Carolina law, “[a]ny person who breaks or

enters any building with intent to commit any felony or larceny

therein shall be punished as a Class H felon.”                   N.C. Gen Stat.

§ 14-54 (2007).       For purposes of the statute, a building means

“any dwelling, dwelling house, uninhabited house, building under

construction, building within the curtilage of a dwelling house,

and any other structure designed to house or secure within it

any activity or property.”         Id.       We have consistently held that

a conviction under § 14-54 for breaking and entering qualifies

as generic burglary, and thus qualifies as a predicate violent

felony under the ACCA.        See United States v. Thompson, 421 F.3d

278, 284 (4th Cir. 2005); United States v. Bowden, 975 F.2d

1080,   1085   (4th   Cir.   1992).      Despite    Alston’s     argument   that

Begay v. United States, 128 S. Ct. 1581 (2008), 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.      Therefore, we conclude the district court did not

err in applying this enhancement.

            Accordingly,      we   affirm        Alston’s    conviction      and

sentence.      We dispense with oral argument because the facts and

legal   contentions    are   adequately        presented    in   the   materials



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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