UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4148

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

ROBERT HICKMAN, 

 Defendant – Appellant. 

Appeal from the United States District Court for the District of 

South Carolina, at Florence. Terry L. Wooten, District Judge. 

(4:08-cr-00507-TLW-1) 

Submitted: November 5, 2009 Decided: December 28, 2009 

Before MOTZ, DUNCAN, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, 

South Carolina, for Appellant. W. Walter Wilkins, United States 

Attorney, Carrie A. Fisher, Assistant United States Attorney, 

Florence, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Robert Hickman pled guilty pursuant to a plea 

agreement to one count of being a felon in possession of 

ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 

(e) (2006). He was found to be an armed career criminal under 

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

U.S. Sentencing Guidelines Manual § 4B1.4 (2007), and was 

sentenced to 185 months’ imprisonment. Hickman appeals, arguing 

that the district court erred in concluding that his prior South 

Carolina convictions for burglary in the third degree and 

failure to stop for a blue light qualified as predicate offenses 

warranting application of the enhanced penalty of the ACCA. 

Finding no error, we affirm. 

 In determining whether the district court properly 

sentenced Hickman as an armed career criminal, we review its 

factual findings for clear error and its legal conclusions de 

novo. E.g., United States v. Wardrick, 350 F.3d 446, 451 

(4th Cir. 2003). A defendant is subject to the enhanced penalty 

of the ACCA when he violates 18 U.S.C. § 922(g)(1) and has three 

prior convictions for violent felonies or serious drug offenses. 

18 U.S.C. § 924(e)(1). 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, arson, or 

extortion, involves use of explosives, or otherwise involves 

2 
conduct that presents a serious potential risk of physical 

injury to another.” Id. § 924(e)(2)(B)(i)-(ii). 

 To determine whether a state offense falls within the 

definition of a violent felony, we employ a categorical approach 

that “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 (emphasis added). 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; see Shepard v. United States, 

544 U.S. 13, 16-17 (2005). A state 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 

3 
“the jury necessarily had to find an entry of a building to 

convict.” Taylor, 495 U.S. at 602. 

 Under South Carolina law, “[a] person is guilty of 

burglary in the third degree if the person enters a building 

without consent and with intent to commit a crime therein.” 

S.C. Code Ann. § 16-11-313(A) (2003). For purposes of the 

statute, a building means “any structure, vehicle, watercraft, 

or aircraft . . . [w]here any person lodges or 

lives . . . people assemble . . . or where goods are stored.” 

S.C. Code Ann. § 16-11-310(1)(a)-(b) (2003). South Carolina 

defines burglary in the third degree more broadly than the 

generic definition. Therefore, we must determine whether the 

jury would have been required to find Hickman guilty of generic 

burglary in order to convict him. 

 A district court may rely on a prepared presentence 

investigation report (“PSR”) to determine whether a prior crime 

qualifies as a predicate offense under the ACCA. See United 

States v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005). The PSR 

prepared for Hickman’s sentencing reveals that his conviction 

for burglary in the third degree involved his entry into a 

building. Therefore, this offense constituted generic burglary 

for purposes of the ACCA. Despite Hickman’s argument that Begay 

4 
5 

v. United States, 128 S. Ct. 1581 (2008),1 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. Because Hickman concedes that he has two other 

prior convictions that qualify as predicate offenses under the 

ACCA, we conclude that the district court did not err in 

applying the enhancement.2 

Accordingly, we affirm the district court’s judgment. 

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

 1 Begay held that, under the “residual clause” of 

§ 924(e)(2)(B)(ii), a predicate offense must be similar to one 

of the four enumerated violent felonies, not only in degree of 

risk posed, but in kind--it must be “purposeful, violent, and 

aggressive conduct.” 128 S. Ct. at 1585-86. 

2

 In light of our determination that Hickman’s conviction 

for burglary in the third degree constituted a third predicate 

offense under the ACCA, we need not evaluate whether Hickman’s 

conviction for failure to stop for a blue light also qualified 

as a predicate offense.