                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5237


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

MARLON LAMONT DAVIS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem.     William L.
Osteen, Jr., District Judge. (1:08-cr-00037-WO-1)


Submitted:    November 20, 2009             Decided:   January 4, 2010


Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marc L. Resnick, Washington, D.C., for Appellant.   Anna Mills
Wagoner, United States Attorney, Graham T. Green, Assistant
United   States Attorney,   Greensboro, North   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Marlon Lamont Davis 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).                         Davis was sentenced under

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

(2006), to 180 months’ imprisonment.                          Davis appeals, arguing

that the district court erred in finding that his 1995 North

Carolina      state      conviction     for       breaking      and    entering        into    a

business qualified as a predicate offense for purposes of the

ACCA.    Finding no error, we affirm.

               In   considering      whether          the    district      court      properly

designated Davis as an armed career criminal, this court reviews

the   district          court’s   legal     determinations            de   novo       and    its

factual findings for clear error.                          United States v. Wardrick,

350 F.3d 446, 451 (4th Cir. 2003).                           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);       U.S.       Sentencing        Guidelines           Manual

§ 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).

To determine whether an offense under state law falls within the

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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.

            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(a)      (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.”                 N.C. Gen. Stat. § 14-54(c)

(2007).    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.

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1992).   Therefore, we conclude the district court did not err in

sentencing Davis as an armed career criminal.

          Accordingly, we affirm Davis’ sentence.              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




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