UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4807

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

STEVEN LEON SHULL,

Defendant - Appellant.

On Remand from the United States Supreme Court.

(S. Ct. No. 04-5117)

Submitted: September 28, 2005 Decided: November 23, 2005

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

Opinion reinstated; sentence affirmed by unpublished per curiam

opinion.

Louis C. Allen, III, Federal Public Defender, Gregory Davis,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick

Auld, Assistant United States Attorney, Greensboro, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

This case is before the court on remand from the Supreme

Court. We previously rejected Steven Leon Shull’s Equal Protection

Clause argument and affirmed his sentence under the Armed Career

Criminal Act. United States v. Shull, No. 03-4807 (4th Cir.

Apr. 7, 2004) (unpublished). The Supreme Court vacated our

decision and remanded Shull’s case to us for further consideration

in light of United States v. Booker, 125 S. Ct. 738 (2005).

Because nothing in the Supreme Court's Booker decision requires us

to change our prior affirmance in this case, we reinstate our prior

opinion and affirm Shull’s sentence.

A defendant who violates 18 U.S.C. 922(g) (2000), and has

three prior convictions for a violent felony or serious drug

offense committed on different occasions is subject to a fifteenyear minimum sentence. 18 U.S.C.A. § 924(e)(1) (West 2000 & Supp.

2005). In supplemental briefs, Shull contends that the enhancement

of his sentence based on the sentencing court’s finding that he had

the requisite number of prior violent felony offenses is contrary

to the holding in Booker. Specifically, Shull contends that the

facts supporting the application of § 924(e) were not charged in

the indictment and found by a jury, nor were they admitted by him.

He also contends that his convictions in North Carolina for

breaking and entering were neither felonies, nor violent felonies.
- 3 -

Shull’s predicate offenses consisted of five prior

convictions in North Carolina for breaking and entering. He

contends that, in light of Blakely v. Washington, 542 U.S. 296

(2004), these convictions should not be deemed punishable by a

prison term exceeding one year, and therefore do not qualify as

felony convictions. This argument was rejected by this court in

United States v. Harp, 406 F.3d 242 (4th Cir. 2005) (holding that

Blakely did not alter ruling that North Carolina’s lowest level of

felonies are punishable by more than one year in prison), petition

for cert. filed, U.S.L.W. (U.S. July 29, 2005) (No. 05-

5887).

Shull also challenges the determination that his breaking

and entering convictions qualify as “violent” felonies. However,

a conviction in North Carolina for breaking and entering has been

held to satisfy the requirements of the statute. See 18 U.S.C.A.

§ 924(e)(2)(B)(ii); Taylor v. United States, 495 U.S. 575, 599

(1990); United States v. Bowden, 975 F.2d 1080, 1085 (4th Cir.

1992) (holding that conviction in North Carolina for breaking and

entering amounted to a “generic burglary” under § 924(e)(2)(B)(ii),

and constituted a predicate violent felony). Thus, we hold that

Shull had the necessary three predicate violent felony convictions.

Furthermore, we have recently held that a district

court’s finding that a defendant had qualifying felony convictions

that supported an armed career criminal designation does not
- 4 -

violate United States v. Booker, 125 S. Ct. 738 (2005). See United

States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005); see also

United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005)

(“Booker did nothing to alter the rule that judges cannot depart

below a statutorily provided minimum sentence.”), petition for

cert. filed, U.S.L.W. (U.S. Aug. 23, 2005) (No. 05-6318).

Because on reconsideration of this case under Booker, we

find no error in Shull’s sentence, we reinstate our April 7, 2004

opinion and affirm Shull’s 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.

OPINION REINSTATED;

SENTENCE AFFIRMED