UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4273

MICHAEL DENNIS TALBOTT,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CR-88-17-BO)

Submitted: June 23, 1998

Decided: August 13, 1998

Before WIDENER and ERVIN, Circuit Judges, and

HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C.,

Atlanta, Georgia, for Appellant. Janice McKenzie Cole, United States

Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh,

North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael Dennis Talbott appeals the district court's order resentencing him on six counts of an indictment to fifteen years in prison. Talbott's core claim on appeal is that he did not have three prior

convictions for violent felonies and therefore was not subject to the

mandatory fifteen-year minimum sentence set forth at 18 U.S.C.A.

§ 924(e) (West Supp. 1998), USSG § 4B1.4.1 He also contends that

his attorney was ineffective for stipulating at his first resentencing

that he was an armed career criminal. For the reasons that follow, we

affirm.

I

Talbott was convicted of numerous firearms offenses, including

two counts of possession of unlawfully made destructive devices

(pipebombs), possession of unregistered firearms (pipebombs), and

possession of a firearm by a convicted felon. He was originally sentenced to forty-five years imprisonment. See United States v. Talbott,

902 F.2d 1129, 1130 (4th Cir. 1990).

On appeal, we affirmed his convictions but vacated his sentence

and remanded for resentencing. We found first that Talbott was not

a career offender, see USSG § 4B1.1. His prior convictions for burglary and breaking and entering were not "crimes of violence" under

USSG § 4B1.2 because they involved commercial structures. We also

held that the district court improperly imposed sentences in excess of

ten years for Talbott's convictions under 26 U.S.C.§ 5861(c), (d)

(1994) to the extent that those convictions related to the same firearm.

See Talbott, 902 F.2d at 1133.

_________________________________________________________________

1 U.S. Sentencing Guidelines Manual (1988).

 2
At resentencing, Talbott stipulated that he was an armed career

criminal. See 18 U.S.C.A. § 924(e). He received a sentence of fiftyone months on Counts 4, 5, 7, and 8. The district court sentenced him

under § 924(e) to the statutory minimum of fifteen years for his convictions on Counts 12 and 14. That sentence ran consecutive to the

sentence on Counts 4, 5, 7, and 8. Finally, Talbott received a five-year

concurrent sentence on Counts 1 and 10.

Talbott did not appeal his sentence. Instead, he filed a 28 U.S.C.A.

§ 2255 (West 1994 & Supp. 1998) motion raising over 100 claims.

The district court denied the motion. On appeal, we vacated and

remanded for a second resentencing. We observed that the district

court should have grouped Counts 4, 5, 7, 8, 12, and 14 and that Talbott was statutorily subject under § 924(e)(1) to a fifteen-year mandatory minimum sentence on those counts. See United States v. Talbott,

No. 92-6334, 1996 WL 453469 at **1-2 (4th Cir. Aug. 13, 1996)

(unpublished).

At his second resentencing, Talbott, who was represented by new

counsel, argued that he did not have the requisite number of prior

convictions for violent felonies to qualify as an armed career criminal.

He also suggested that his previous attorney was ineffective for stipulating at his first resentencing that he was subject to the enhancement

of § 924(e). The district court declined to address the matter, finding

that it was bound by this court's ruling in No. 96-6334. In accordance

with our mandate, the district court resentenced Talbott to fifteen

years on Counts 4, 5, 7, 8, 12, and 14. Talbott timely appeals.

II

One of Talbott's convictions was for possession of a firearm by a

convicted felon, 18 U.S.C.A. § 922(g)(1) (West Supp. 1998). Persons

convicted of that crime who have three previous convictions for violent felonies or drug offenses, or both, are subject to a mandatory

minimum sentence of fifteen years. See 18 U.S.C.A. § 924(e)(1). The

record reveals that Talbott was convicted in 1975 on two counts of

breaking and entering and two presumably related counts of larceny

and in 1976 on two counts of burglary. These offenses were used in

determining his armed career criminal status. Talbott concedes that

his two burglary convictions qualify as two of the required three felo-

 3
nies. However, he argues that neither of his two 1975 convictions for

breaking and entering qualifies.

The presentence report states that details of the 1975 offenses,

which were disposed of together, were unavailable. Talbott received

a three-year sentence for the four offenses; eighteen months of the

sentence was suspended.

Talbott contends that his breaking and entering convictions were

not violent felonies under § 924(e) because they did not involve

residences.2 We have held that breaking and entering a dwelling

house in violation of Md. Ann. Code art. 27 § 31A (1976) is a violent

felony under § 924(e). See United States v. Curtis, 988 F.2d 1355,

1363 (4th Cir. 1993). Talbott asserts that he was convicted of misdemeanor breaking and entering of a storehouse, an offense with a sixmonth maximum sentence.3 As proof of these claims, Talbott's attorney states in her brief that Talbott informed her that the 1975 convictions did not involve residences. Counsel also says that she

independently investigated the matter. An employee of the court in

Maryland where Talbott was convicted informed counsel that the

information available did not conclusively establish whether Talbott

was convicted under § 31A. However, what unidentified information

there was suggested that Talbott was convicted of the misdemeanor

rather than the felony.

We previously found that Talbott, who stipulated at his second

resentencing that he was an armed career criminal, was subject under

§ 924(e) to the mandatory minimum sentence of fifteen years. See

United States v. Talbott, 1996 WL 453469 at **2. Our mandate

directed the district court to sentence him to fifteen years on Counts

4, 5, 7, 8, 12, and 14. The district court was obligated to follow this

mandate. The mandate rule, which "forecloses relitigation of issues

_________________________________________________________________

2 Burglary of a commercial structure may qualify as a violent felony.

See Taylor v. United States, 495 U.S. 575, 598-602 (1990).

3 It appears that the misdemeanor statute under which counsel believes

Talbott to have been convicted had not been enacted in 1975, when Talbott was convicted. See Md. Ann. Code art. 27 § 31B (1987) (breaking

and entering a storehouse, garage, trailer, etc. is a misdemeanor; § 31B

enacted in 1979).

 4
expressly or impliedly decided by the appellate court," United States

v. Bell, 5 F.3d 64, 66 (4th Cir. 1993), precluded Talbott from raising

the propriety of the enhancement at resentencing absent exceptional

circumstances. See id. at 66-67.

Talbott fails to offer concrete proof that he was not sentenced

under § 31A. We decline to relax the mandate rule on the basis of

speculation. The district court properly determined that it was bound

by our previous decision to sentence Talbott under§ 924(e) to fifteen

years in prison.

III

Talbott contends that his prior attorney was ineffective for stipulating that he was subject to the enhancement. A claim of ineffective

assistance of counsel ordinarily may not be raised on direct appeal

unless ineffectiveness conclusively appears on the face of the record.

Rather, such a claim is more appropriately brought in a 28 U.S.C.A.

§ 2255 motion. See United States v. DeFusco, 949 F.2d 114, 120 (4th

Cir. 1991). Here, Talbott has not conclusively demonstrated that his

prior counsel was ineffective for entering into the stipulation. In this

regard, we note that Talbott presents no decisive evidence that he was

sentenced for a misdemeanor, rather than a violent felony, in 1975.

We therefore decline to address his claim.

IV

We accordingly affirm the 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 significantly

aid the decisional process. The motion to file a supplemental formal

brief is granted.

AFFIRMED

 5