UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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