UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-6076

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LARRY DON BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Shelby. Richard L. Voorhees, 

District Judge. (5:13-cr-00053-RLV-DCK-11)

Submitted: October 20, 2016 Decided: November 18, 2016

Before NIEMEYER, TRAXLER, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

D. Baker McIntyre, III, Charlotte, North Carolina, for 

Appellant. Amy Elizabeth Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Larry Don Brown pled guilty to conspiracy to distribute,

possess with intent to distribute, and manufacture, 

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 

(b)(1)(C), 846 (2012). The district court sentenced Brown to 

120 months’ imprisonment, and he now appeals. Appellate counsel 

has filed a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), stating that there are no meritorious issues for appeal 

but questioning whether the sentence imposed was erroneous in 

light of Johnson v. United States, 135 S. Ct. 2551 (2015), and 

McFadden v. United States, 135 S. Ct. 2298 (2015). Brown was 

informed of his right to file a pro se supplemental brief, but 

has not done so.

With respect to counsel’s arguments, because Brown objected 

neither to the presentence report’s assertion that he was a 

career offender nor to the offense level calculation based on 

drug quantity, those determinations are reviewed for plain error

only. United States v. Carthorne, 726 F.3d 503, 509 (4th Cir. 

2013). “To satisfy plain error review, the defendant must 

establish that: (1) there is a sentencing error; (2) the error 

is plain; and (3) the error affects his substantial rights.” 

United States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 

2015). “If the three-part plain error test is satisfied, we 

must decide whether to cure the error, and should not do so 
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unless the error seriously affects the fairness, integrity or 

public reputation of judicial proceedings.” Id. (internal 

quotation marks omitted). 

As to the determination that Brown qualified as a career 

offender, we conclude that no plain error occurred. We have 

never addressed whether North Carolina felony breaking or 

entering qualifies as a crime of violence absent consideration 

of the residual clause,* and therefore the law is not settled in 

a manner sufficient to satisfy the plain error test. Moreover, 

even if we were inclined to find plain error, the district court 

imposed the statutory minimum 120-month sentence, more than 200 

months below the bottom of the Guidelines range. As a result, 

any error committed by the district court did not impact Brown’s 

sentence and therefore “could not have affected [his] 

substantial rights.” United States v. Branch, 537 F.3d 328, 343 

(4th Cir. 2008) (internal quotation marks omitted). 

We also conclude that the district court did not plainly 

err in attributing 150 to 500 grams of methamphetamine to Brown. 

In the plea agreement and factual basis that Brown signed, he 

 * We have previously held that that breaking or entering,

“as interpreted by the North Carolina Supreme Court, sweeps no 

more broadly than the generic elements of burglary” and 

therefore qualifies as a predicate offense under the Armed 

Career Criminal Act. United States v. Mungro, 754 F.3d 267, 272 

(4th Cir. 2014).
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agreed that the amount of methamphetamine known to or reasonably 

foreseeable by him was between 150 and 500 grams of actual 

methamphetamine. Brown reaffirmed this during the plea hearing. 

To the extent that Brown relies on McFadden, that decision is 

easily distinguishable from this case and is inapposite. 

In accordance with Anders, we have reviewed the entire 

record in this case and have found no meritorious issues for 

appeal. We therefore affirm Brown’s conviction and sentence. 

This court requires that counsel inform Brown, in writing, of 

the right to petition the Supreme Court of the United States for 

further review. If Brown requests that a petition be filed, but 

counsel believes that such a petition would be frivolous, then 

counsel may move in this court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 

was served on Brown.

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED