UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-5115

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

ALTARIK ALSTON, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever III, 

District Judge. (5:07-cr-00266-D-1) 

Submitted: August 27, 2009 Decided: October 2, 2009 

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Lewis A. Thompson, III, BANZET, THOMPSON & STYERS, P.L.L.C., 

Warrenton, North Carolina, for Appellant. George E. B. Holding, 

United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, 

Assistant United States Attorneys, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 Altarik Alston 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). Alston was found to be an armed career 

criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 

§ 924(e) (2006), and U.S. Sentencing Guidelines Manual (“USSG”) 

§ 4B1.4 (2007), and was sentenced to 186 months in prison. 

Alston appeals, arguing that the district court erred in finding 

that he possessed three violent felonies qualifying as predicate 

offenses. Finding no error, we affirm. 

 Because Alston failed to raise this objection during 

sentencing, this court’s review is for plain error. United 

States v. Olano, 507 U.S. 725, 732 (1993); United States v. 

White, 405 F.3d 208, 215 (4th Cir. 2005). Alston must establish 

that an error occurred, that the error was plain, and that the 

error affected his substantial rights. Olano, 507 U.S. at 732. 

 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); USSG 

§ 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). 

2 
 To determine whether an offense under state law falls 

within the 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. 

While a court normally may look only to the fact of the 

conviction and the statutory definition, because some states 

broadly define burglary to include places other than buildings, 

the categorical approach “may permit the sentencing court to go 

beyond the mere fact of conviction.” Id. at 602; Shepard v. 

United States, 544 U.S. 13, 16-17 (2005). An offense will 

constitute burglary if the jury was required “to find all the 

elements of generic burglary in order to convict the defendant,” 

and “the indictment or information and jury instructions show 

that the defendant was charged only with a burglary of a 

building,” so “the jury necessarily had to find an entry of a 

building to convict.” Taylor, 495 U.S. at 602. 

3 
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 (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.” Id. 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. 1992). Despite Alston’s argument that 

Begay v. United States, 128 S. Ct. 1581 (2008), and its progeny 

require a different analysis to determine whether a prior crime 

qualifies as a violent felony, the Supreme Court made clear in 

Begay that § 924(e)(2)(B)(ii) still “covers a felony that is one 

of the example crimes” specifically enumerated in the statute. 

Id. at 1586. Therefore, we conclude the district court did not 

err in applying this enhancement. 

Accordingly, we affirm Alston’s conviction and 

sentence. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

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before the court and argument would not aid the decisional 

process. 

AFFIRMED