PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4503

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

HARVEY LEE MUNGRO, JR., a/k/a Harvey Lee Mungro,

Defendant – Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

Chief District Judge. (3:11-cr-00370-FDW-1)

Argued: May 15, 2014 Decided: June 11, 2014

Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit 

Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion,

in which Chief Judge Traxler and Judge Niemeyer joined.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy 

Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, 

North Carolina, for Appellee. ON BRIEF: Henderson Hill, 

Executive Director, Kevin Tate, FEDERAL DEFENDERS OF WESTERN 

NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. 

Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
2

DUNCAN, Circuit Judge:

Harvey Lee Mungro brings this appeal challenging his 

sentence for being a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g). The district court concluded 

that Mungro was subject to a mandatory minimum sentence of 15

years’ imprisonment under the Armed Career Criminal Act 

(“ACCA”), 18 U.S.C § 924(e), due to Mungro’s three prior state 

convictions for “breaking or entering” in violation of N.C. Gen. 

Stat. § 14-54(a). For the reasons below, we affirm.

The question presented here is a simple one: does North 

Carolina’s “breaking or entering” offense qualify as burglary 

and, thus, as a predicate offense under the ACCA? In answering 

this question, we first review the legal framework for 

categorizing state-law offenses under the ACCA. We then apply 

this methodology to the “breaking or entering” offense at issue 

in this case.

I.

The ACCA provides significantly strengthened penalties for 

being a felon in possession of a firearm, in violation of 18 

U.S.C. § 922(g), when the felon has previously been convicted of 

three or more “predicate offenses.” These predicate offenses 

include violent felonies and serious drug offenses. 18 U.S.C. 

§ 924(e)(1). While violations of § 922(g) are normally 
3

punishable by no more than ten years’ imprisonment, 18 U.S.C. 

§ 924(a)(2), this sentence increases to a mandatory minimum of

fifteen years’ imprisonment under the ACCA, 18 U.S.C. 

§ 924(e)(1).

The ACCA defines “violent felony” to include, as relevant 

here, any offense that “is burglary.” 18 U.S.C. 

924(e)(2)(B)(ii).1

 Thus, any burglary offense is an ACCA 

predicate offense. To determine whether a given offense 

qualifies as burglary, we compare the elements of the offense in 

question with the elements of burglary, under burglary’s generic 

definition. See Taylor v. United States, 495 U.S. 575, 599

(1990). As Taylor illustrated, an offense’s generic definition

may be different from the definition under any particular 

state’s law. Rather, an offense’s generic definition is uniform 

nationwide. It therefore is ascertained by considering the 

similarities between the states’ definitions of the offense, and 

by referring to secondary sources such as the Model Penal Code 

and eminent criminal-law treatises. Id. at 580, 590-600.

 1 The term also covers any offense that “has as an element 

the use, attempted use, or threatened use of physical force 

against the person of another,” “is . . . arson, or extortion,

involves use of explosives, or otherwise involves conduct that 

presents a serious potential risk of physical injury to 

another.” 18 U.S.C. § 924(e)(2)(B).
4

We need not engage in such a sweeping investigation here, 

however, because the Supreme Court has already done so. The 

generic definition of burglary requires: “an unlawful or 

unprivileged entry into, or remaining in, a building or other 

structure, with intent to commit a crime.” Id. at 598. 

“[G]eneric burglary's unlawful-entry element excludes any case 

in which a person enters premises open to the public, no matter 

his intent; the generic crime requires breaking and entering or 

similar unlawful activity.” Descamps v. United States, 133 S. 

Ct. 2276, 2292 (2013).

We must then determine the elements of the state-law 

offense in question and compare them to the generic definition 

of burglary. To do this, we examine the relevant statutory 

language and interpretations of that language by the state’s 

highest court. Johnson v. United States, 559 U.S. 133, 138 

(2010); United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th 

Cir. 2014) (en banc).2 If the elements of the state offense 

 2 Aparicio-Soria concerned the application of the term 

“crime of violence” under U.S.S.G. § 2L1.2, and not “violent 

felony” under the ACCA. But “[w]e rely on precedents evaluating 

whether an offense constitutes a ‘crime of violence’ under the 

Guidelines interchangeably with precedents evaluating whether an 

offense constitutes a ‘violent felony’ under the ACCA, because 

the two terms have been defined in a manner that is 

‘substantively identical.’” United States v. King, 673 F.3d 

274, 279 n. 3 (4th Cir. 2012) (quoting United States v. Jarmon, 

596 F.3d 228, 231 n. * (4th Cir.2010)).
5

correspond to or are narrower than those provided in the generic 

definition of burglary, then the offense qualifies as burglary 

and, accordingly, as a predicate offense under the ACCA. 

Descamps, 133 S. Ct. at 2281. Under this “formal categorical 

approach,” we may consider only the elements of the offense and 

the fact of conviction, and not the actual facts underlying that 

conviction.3 Id. at 2283.

Here, the district court concluded that “breaking or

entering” in violation of N.C. Gen. Stat. § 14-54(a) is burglary

and, therefore, that Mungro’s prior convictions under that 

statute constituted ACCA predicate offenses. Thus, it sentenced 

Mungro to the ACCA’s 15-year mandatory minimum, instead of 

sentencing him within the significantly lower range ordinarily 

prescribed by 18 U.S.C. § 924(a)(2).

II.

Mungro argues that the district court erred in concluding 

that his prior “breaking or entering” convictions qualified as 

ACCA predicate offenses, because the elements of “breaking or 

 3 A more searching analysis called the “modified categorical 

approach” is permissible only when the conviction in question 

was under a so-called “divisible” statute. See Descamps, 133 S. 

Ct. at 2283-84. The parties agree, however, that the formal 

categorical approach provides the appropriate framework in this 

case.
6

entering” apply to a broader range of conduct than the generic 

definition of burglary. We review the district court’s 

classification of these offenses under the ACCA de novo. United 

States v. Gomez, 690 F.3d 194, 197 (4th Cir. 2012). For the 

reasons below, we agree with the district court.4

As Mungro points out, North Carolina’s “breaking or 

entering” offense is unusual for the reason suggested by the 

conjunction in its name: it applies to “[a]ny person who breaks 

or enters any building with intent to commit any felony or 

larceny therein.” N.C. Gen. Stat. § 14-54(a) (emphasis added). 

The language of the statute suggests that it covers any entry 

into a building with the intent to commit a crime, even when a 

person enters with the building owner’s consent. This might 

indeed disqualify it as a predicate offense because “generic 

burglary's unlawful-entry element excludes any case in which a 

person enters premises open to the public, no matter his 

intent.” Descamps, 133 S. Ct. at 2292.

The North Carolina Supreme Court, however, has greatly 

narrowed the applicability of N.C. Gen. Stat. § 14-54(a). It 

 4 Mungro also argues that the district court erred in 

sentencing him based upon his prior criminal history without 

these facts’ having been proven to a jury. See Apprendi v. New 

Jersey, 530 U.S. 466, 490 (2000). However, he concedes that 

this argument is foreclosed by our decision in United States v. 

Thompson, 421 F.3d 278, 280 (4th Cir. 2005). We therefore do 

not discuss it further.
7

has held that N.C. Gen. Stat. § 14-54(a) was intended merely to 

codify preexisting North Carolina law that criminalized breaking 

or entering without the consent of the owner. State v. Boone, 

256 S.E.2d 683, 687 (N.C. 1979). The court therefore clarified 

that, notwithstanding the broad statutory language, “entry with 

consent of the owner of a building, or anyone empowered to give 

effective consent to entry, cannot be the basis of a conviction 

under G.S. 14-54(a).” Id.

This construction binds our ACCA analysis and brings the 

elements of § 14-54(a) within the generic definition of burglary 

as articulated by Taylor and Descamps. As interpreted in Boone,

N.C. Gen. Stat. § 14-54(a) requires either breaking with intent 

to commit a felony or larceny therein, or entering without 

consent with intent to commit a felony or larceny therein. 

These alternatives correspond to the alternative “unlawful” and

“unpriviledged” entry requirements of the generic definition of 

burglary. 495 U.S. at 599.

Mungro argues, however, that a footnote in Boone reopens 

the possibility that a defendant could be convicted under N.C. 

Gen. Stat. § 14-54(a) for entering a building with the consent 

of its owner:

We note in passing that there may be occasions when 

subsequent acts render the consent void ab initio, as 

where the scope of consent as to areas one can enter 

is exceeded, or the defendant conceals himself in a 
8

building until a time he is not authorized to be there 

in order to facilitate a theft.

256 S.E.2d 687 n.3 (internal citations omitted).

Under this language, Mungro argues, a defendant’s later

theft from the building could be construed as a subsequent act 

that rendered his permission to enter it void ab initio. If 

this is the case, Mungro contends that the elements of N.C. Gen. 

Stat. § 14-54(a) remain broader than those of the generic 

definition of burglary because the generic definition contains 

no such caveat. The generic definition of burglary covers only 

entries made without the actual consent of the building’s owner, 

and does not contemplate the retroactive cancellation of that 

consent. The Supreme Court has made this clear in maintaining

that shoplifting, for example, does not qualify as burglary. 

See Descamps, 133 S. Ct. at 2283.

Unfortunately for Mungro, however, Boone itself nowhere 

indicates that committing a crime within the building actually 

is one of the “subsequent acts [that] render the consent void ab 

initio. Boone, 256 S.E.2d at 687 n.3. To the contrary: Boone

makes clear that a defendant’s entry into a building with the 

owner’s consent cannot serve as the basis for a conviction under 

N.C. Gen. Stat. § 14-54(a), even if he commits a crime once 

inside. Id. at 687.
9

Significantly, Boone itself would have been decided 

differently if Mungro’s interpretation were correct. Boone was 

convicted under N.C. Gen. Stat. § 14-54(a) for his involvement 

in a theft from a clothing store in Nags Head, North Carolina. 

Boone, the evidence showed, had entered the store, left briefly, 

and then returned to the store with three other individuals. He 

then waited outside while his confederates entered the store and 

stole two sweaters.

The North Carolina Supreme Court vacated his N.C. Gen. 

Stat. § 14-54(a) conviction, holding: “[t]he state's evidence 

here established that defendant entered the store at a time when 

it was open to the public. His entry was thus with the consent, 

implied if not express, of the owner. It cannot serve as the 

basis for a conviction for felonious entry.” Id. at 687. But

if Mungro’s interpretation were correct, the North Carolina 

Supreme Court would have, instead, affirmed Boone’s N.C. Gen. 

Stat. § 14-54(a) conviction. Although Boone entered the 

clothing store with the owner’s consent, under Mungro’s theory 

Boone’s subsequent larceny would have rendered that consent void 

ab initio, supporting his conviction.5 Thus, whatever else may 

 5 Mungro contends that Boone’s consent to enter would not 

have been voided because Boone did not actually steal any 

merchandise. But this overlooks the fact that, although Boone 

may not have physically picked up the stolen sweaters, he was, 

nonetheless, convicted of larceny for his role in the 

(Continued)
10

qualify as “subsequent acts [that] render the consent void ab 

initio,” Id. at 687 n.3, a subsequent theft cannot be one of 

them, because that alternative would have been inconsistent with 

the holding of Boone itself.

Second, Mungro’s interpretation would cause Boone’s holding 

to be almost entirely swallowed by its footnote. N.C. Gen. 

Stat. § 14-54(a) only covers entering a building with the intent 

to commit a felony or larceny. Under Mungro’s interpretation, 

it would seem, a defendant’s consent to enter would be rendered 

void ab initio whenever the defendant actually committed his 

intended crime. Thus, Mungro’s interpretation would implausibly 

render Boone’s holding applicable only to the obscure case of an 

ill-intentioned but well-behaved defendant: one who entered a 

building with the owner’s consent intending to commit a crime, 

but who, despite not actually committing the intended crime, was 

nonetheless charged with violating N.C. Gen. Stat. § 14-54(a).

Mungro points to two decisions of the North Carolina Court 

of Appeals that held a subsequent act of theft to have rendered 

the thief’s permission to enter void ab initio: State v. 

Rawlinson, 679 S.E.2d 878, 884 (N.C. Ct. App. 2009), and In re 

 

shoplifting. The North Carolina Supreme Court affirmed Boone’s

larceny conviction, observing that “the larceny itself is the 

gravamen of this case.” Boone, 256 S.E.2d at 688.
11

S.D.R., 664 S.E.2d 414, 420 (N.C. Ct. App. 2008). But when the 

state’s highest court has already articulated the elements of 

the offense, we are not free to conclude that it got them wrong

and, instead, credit the opinions of the state’s lower courts. 

See Aparicio-Soria, 740 F.3d at 154.

Likewise, it is not plausible to characterize these lowercourt opinions as merely filling in what Boone left open. As we 

have explained, Boone makes clear that a subsequent act of theft 

does not render the thief’s permission to enter void ab initio. 

Mungro likewise falls short of showing that North Carolina’s 

lower courts consistently apply Boone differently from our 

reading of it. The two opinions he highlights hardly establish 

a pattern, and even less so when the proposition for which 

Mungro cites them is contained only in alternate holdings. In 

both, the North Carolina Court of Appeals first held that the 

defendant did not have permission to enter the portion of the 

building where he committed the theft and only then held, 

alternatively, that his theft rendered his consent to enter void 

ab initio. Rawlinson, 679 S.E.2d at 884; In re S.D.R., 664 

S.E.2d at 420.

We therefore conclude 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. The North 

Carolina Supreme Court’s clarification that the offense requires 
12

either breaking or entering without a building owner’s consent

brings it within Taylor’s requirement of an “unlawful or 

unprivileged entry.” 495 U.S. at 599. This clarification also 

“excludes any case in which a person enters premises open to the 

public, no matter his intent” as required by Descamps. 133 S. 

Ct. at 2292.6 N.C. Gen. Stat. § 14-54(a) therefore qualifies as 

an ACCA predicate offense under 18 U.S.C. § 924(e)(2)(B)(ii).

III.

For the reasons above, Mungro’s sentence is

AFFIRMED.

 6 We therefore need not address Mungro’s argument that 

Descamps overrules our prior opinion in United States v. Bowden, 

975 F.2d 1080, 1081 (4th Cir. 1992), where we previously 

concluded, as we do here, that N.C. Gen. Stat. § 14-54(a) falls 

within the generic definition of burglary and, therefore, is an 

ACCA predicate offense.