UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4774

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES NOVIA FARRIOR,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Malcolm J. Howard,

District Judge. (CR-03-356-H)

Submitted: September 8, 2006 Decided: October 11, 2006

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Frank D. Whitney, United States Attorney, Anne M.

Hayes, Christine Witcover Dean, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

James Novia Farrior pled guilty to being a convicted

felon in possession of a firearm, in violation of 18 U.S.C. §§

922(g)(1), 924 (2000), and was sentenced to 179 months in prison.

Farrior appeals his sentence, arguing that the district court erred

in sentencing him as an armed career criminal. Finding no

reversible error, we affirm.

As a preliminary matter, the Government has moved to

dismiss the appeal based on Farrior’s waiver of his right to appeal

as part of his plea agreement. Farrior contends, however, that his

appeal is not barred by the appeal waiver, citing United States v.

Bowden, 975 F.2d 1080 (4th Cir. 1992). We agree and find Farrior’s

challenge to his armed career criminal sentence, his only claim on

appeal, is outside the scope of his appeal waiver, and we deny the

Government’s motion to dismiss. 

In considering whether the district court properly

designated Farrior 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). Farrior’s argument that the district court

erred in sentencing him as an armed career criminal based on facts

not alleged in the indictment or found by a jury is foreclosed by

our recent decision in United States v. Thompson, 421 F.3d 278 (4th

Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006), in which we held
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that sentencing courts may rely on prior convictions to invoke the

enhancement provided by § 924(e)(1), even if the prior convictions

were not charged in the indictment or found by a jury, so long as

no facts extraneous to the fact of conviction need be decided. Id.

at 282-83. 

Farrior does not dispute the fact of the prior

convictions, but does argue that there was insufficient evidence to

establish that his prior North Carolina breaking and entering

conviction was a violent felony as defined by 18 U.S.C. § 924(e)(1)

(2000). A violent felony under 18 U.S.C. § 924(e)(2)(B) “(i) has

as an element the use, attempted use, or threatened use of physical

force against the person of another; or (ii) is burglary . . . or

otherwise involves conduct that presents a serious potential risk

of physical injury to another.” In applying the armed career

criminal statute, this court uses a formal “categorical approach,”

looking only to the statutory definition of the predicate offense

and not to the particular circumstances underlying the conviction.

United States v. Hairston, 71 F.3d 115, 117 (4th Cir. 1995). Under

this approach, we must make “common-sense judgments about whether

a given offense proscribes generic conduct with the potential for

serious physical injury to another.” Id. (citations and internal

quotation marks omitted). Thus, we look to the crime in the

“abstract” to see whether the nature of the crime involves “serious
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potential risk of physical injury to another.” United States v.

Dickerson, 77 F.3d 774, 777 (4th Cir. 1996).

Farrior alleges that the Government failed to identify

the statute under which he was convicted for breaking and entering

and failed to present supporting records that describe the nature

of the offense. In addition, Farrior claims that the presentence

report contained only an unsubstantiated reference to the prior

breaking and entering conviction and failed to identify the source

of the information that the breaking and entering conviction

stemmed from Farrior breaking into a pawn shop. Burglary, for

Armed Career Criminal Act purposes, has been limited to “generic”

burglary, defined as the “unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit

a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990); see

also Bowden, 975 F.2d at 1083 (construing North Carolina burglary

convictions for § 924(e) purposes). “[A]n offense constitutes

‘burglary’ for purposes of a § 924(e) sentence enhancement if

either its statutory definition substantially corresponds to

‘generic’ burglary, or the charging paper and jury instructions

actually required the jury to find all the elements of generic

burglary in order to convict the defendant.” Bowden, 975 F.2d at

1084.

The presentence report in this case indicates that

Farrior was convicted of “Breaking and Entering, Larceny after
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Breaking and Entering,” in Cumberland County Superior Court,

Fayetteville, North Carolina, after breaking into a pawn shop on

June 23, 2001, and removing numerous firearms. The offense of

Breaking and Entering is defined in North Carolina as follows:

(a) Any person who breaks or enters any building with

intent to commit any felony or larceny therein shall be

punished as a Class H felon. 

* * *

(c) As used in this section, “building” shall be

construed to include 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 (2003). This court has held that a

violation of N.C. Gen. Stat. § 14-54 is “generic burglary,” and

constitutes a “violent felony,” as defined in 18 U.S.C.

§ 924(e)(2)(B)(ii), for purposes of sentencing a defendant as an

armed career criminal. Bowden, 975 F.2d at 1085; see also Taylor,

495 U.S. at 598-99. Farrior’s conviction falls under N.C. Gen.

Stat. § 14-54(a), because he broke and entered a pawn shop, a

building, with the intent to commit larceny. We therefore find the

district court properly found Farrior’s prior breaking and entering

conviction is a violent felony for purposes of sentencing him as an

armed career criminal.

Accordingly, we deny the Government’s motion to dismiss

and affirm the judgment of the district court. We dispense with

oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED