UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-4589

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

RICKIE MARKIECE ATKINSON, a/k/a Drama,

 Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Raleigh. James C. Dever III, District Judge. (5:16-cr-00250-D-1)

Submitted: December 28, 2018 Decided: January 14, 2019

Before WILKINSON, WYNN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Acting Federal Public Defender, Jaclyn L. DiLauro, Assistant Federal 

Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North 

Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. 

May-Parker, Acting First Assistant United States Attorney, Barbara D. Kocher, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Rickie Markiece Atkinson appeals from his 240-month sentence imposed pursuant 

to his guilty plea to possession of a firearm and ammunition by a convicted felon. On 

appeal, Atkinson challenges his designation as an armed career criminal and argues that 

the district court erred in departing upwards from the calculated Sentencing Guidelines 

range. We affirm.

We review de novo the question of whether a defendant’s prior convictions for 

breaking and entering qualify as predicate felonies under the Armed Career Criminal Act 

(ACCA). United States v. Winston, 850 F.3d 677, 683 (4th Cir. 2017). An armed career 

criminal is, in pertinent part, “a person who violates [18 U.S.C. § 922(g) (2012)] . . . and 

has three previous convictions . . . for a violent felony.” 18 U.S.C. § 924(e)(1) (2012). 

“The ACCA defines ‘violent felony’ to include, as relevant here, any offense that ‘is 

burglary.’” United States v. Mungro, 754 F.3d 267, 268 (4th Cir. 2014) (quoting 18 

U.S.C. § 924(e)(2)(B)(ii)). “Thus, any burglary offense is an ACCA predicate offense.” 

Id. In Mungro, the “question presented” was “does North Carolina’s ‘breaking or 

entering’ offense [under N.C. Gen. Stat. § 14-54(a)] qualify as burglary and, thus, as a 

predicate offense under the ACCA?” Id. After a thorough analysis of the statute and 

relevant case law, we “conclude[d] that N.C. Gen. Stat. § 14-54(a), as interpreted by the 

North Carolina Supreme Court, sweeps no more broadly than the generic elements of 

burglary” and “therefore qualifies as an ACCA predicate offense.” Id. at 272. 

Atkinson argues that Mungro is not controlling here because, in that case, this 

Court focused its analysis on the “unlawful entry element” of N.C. Gen. Stat. § 14-54(a) 
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and not on the statute’s definition of the term “building.” Atkinson contends that N.C. 

Gen. Stat. § 14-54(a) is broader than generic burglary because North Carolina courts have 

convicted defendants under that statute for breaking and entering into mobile homes and 

trailers. Generic burglary, Atkinson argues, is narrower and does not encompass, for 

example, burglary of a boat, motor vehicle, air vehicle, booth, tent, or railroad car. 

Atkinson claims that we are not bound by Mungro because Mungro did not explicitly 

address this issue. 

We reject this argument and hold that North Carolina Breaking and Entering’s 

“building” element sweeps no broader than generic burglary’s “building” element. 

Accordingly, we find that Atkinson was properly treated as an armed career criminal.

Atkinson next argues that the district court’s decision to upwardly depart and the 

extent of the departure were unwarranted. He contends that the district court’s reasoning 

was not sufficiently compelling to support such a large departure,* especially where 

certain of the district court’s reasons—offense conduct, obstruction of justice, and 

criminal history—were adequately accounted for in the calculation of the original 

Guidelines range. Atkinson also notes that nearly all of his unscored convictions were 

more than fifteen years old. 

When reviewing a departure, we consider whether the sentencing court acted 

reasonably both with respect to its decision to depart and with respect to the extent of the 

 * The district court departed from a 180- to 188-month Guidelines range to a range 

of 210 to 262 months.
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divergence from the sentencing range. United States v. Howard, 773 F.3d 519, 529 (4th 

Cir. 2014) (internal quotation marks omitted). “An appellate court owes due deference to 

a district court’s assessment of the [18 U.S.C.] § 3553(a) [2012] factors, and mere 

disagreement with the sentence below is insufficient to justify reversal of the district 

court.” Id. at 531 (internal quotation marks omitted). The district court departed 

pursuant to United States Sentencing Guidelines Manual § 4A1.3(a)(1), p.s. (2016), 

which “authorizes an upward departure when reliable information indicates that the 

defendant’s criminal history category substantially under-represents the seriousness of 

the defendant’s criminal history or the likelihood that the defendant will commit other 

crimes.” United States v. McCoy, 804 F.3d 349, 352 (4th Cir. 2015) (internal quotation 

marks omitted). Further, once the district court reached a criminal history category of VI, 

the district court moved to a higher offense level appropriate to the case. USSG 

§ 4A1.3(a)(4)(B), p.s.

Atkinson contends that the district court relied too heavily on his earlier 

convictions in upwardly departing. However, the district court discussed each of 

Atkinson’s convictions, noting his age at the time and the resulting, generally lenient 

sentence. It then thoroughly explained its reasoning for the departure, relying not just on 

Atkinson’s earlier criminal history, but on a combination of the length of Atkinson’s 

criminal history, the lenient sentences he received, his numerous institutional infractions, 

his obstruction of justice, his current and past violent behavior, and his failure to modify 

his behavior for any period of time. 
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The court correctly considered Atkinson’s unscored violations, as well as other 

reasons for the upward departure, including “the nature of the prior offenses” and any 

prior lenient treatment. USSG § 4A1.3, p.s. cmt. 2(B) (authorizing consideration of “the 

nature of the prior offenses rather than simply their number”); see USSG § 4A1.3, p.s. 

background (“[A] defendant with an extensive record of serious, assaultive conduct who 

had received what might now be considered extremely lenient treatment in the past might 

have the same criminal history category as a defendant who had a record of less serious 

conduct.”). Moreover, while certain circumstances discussed by the court were at least 

partially taken into account by the Guidelines range, the district court offered numerous 

reasons supported by the record for its decision to depart, as well as for the extent of the 

departure, and the court’s reasoning continually underscored the extraordinarily serious 

nature of Atkinson’s history. 

For instance, the court concluded that the dates and circumstances of Atkinson’s 

criminal history, as well as his institutional infractions, showed a “100 percent” chance of 

recidivism, which the court called “extraordinary.” The court recognized that Atkinson’s 

violent behavior continued even in prison while awaiting disposition of the instant case. 

Further, the court considered the circumstances surrounding Atkinson’s criminal conduct, 

including his dismissed charge and his attempt to obstruct justice and avoid 

responsibility. 

Next, the district court considered the appropriate § 3553(a) factors in imposing 

the 240-month sentence. Atkinson’s criminal record reflected a steady pattern of 

offenses, some involving violence, since he was 16. The district court also considered 
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numerous other relevant factors. See 18 U.S.C. § 3553(a)(1)-(2) (2012). While Atkinson 

claims that the district court failed to account for mitigating circumstances like his mental 

health and difficult upbringing, the record reflects that the district court discussed the 

mitigating factors, but found Atkinson’s criminal behavior in noncustodial and custodial 

settings more telling. While the sentence selected by the district court is significantly

higher than the predeparture Guidelines range established at sentencing, the court 

grounded the sentence in the § 3553(a) factors. We therefore find that Atkinson’s 

sentence is reasonable and that the district court did not err procedurally or substantively 

in its decision to depart.

Thus, we affirm Atkinson’s sentence. We dispense with oral argument because 

the facts and legal contentions are adequately presented the materials before this court 

and argument would not aid the decisional process.

AFFIRMED