UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4118

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

DESMOND JAMAR SMITH, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. W. Earl Britt, Senior 

District Judge. (4:08-cr-00033-BR-1) 

Submitted: October 30, 2009 Decided: December 9, 2009 

Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, 

Assistant Federal Public Defender, James E. Todd, Jr., Research 

and Writing Attorney, Raleigh, 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Unpublished opinions are not binding precedent in this circuit. 

Vacated by Supreme Court, June 21, 2010
PER CURIAM: 

 Desmond Jamar Smith pled guilty without a plea 

agreement to one count of being a felon in possession of a 

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 

924 (2006), and was sentenced to 210 months in prison. Smith’s 

sole argument on appeal is that the district court erred in 

sentencing him as an armed career criminal because he alleges 

that: (i) his four prior North Carolina felony breaking and 

entering convictions were not proper predicate offenses under 

the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) 

(2006), since they allegedly do not involve conduct that is 

purposeful, violent and aggressive and were not punishable by 

more than twelve months’ imprisonment; and (ii) his Fifth and 

Sixth Amendment rights were violated when the district court 

enhanced his sentence based on uncharged facts about prior 

convictions neither admitted to by Smith, nor proven beyond a 

reasonable doubt. Finding no error, we affirm. 

 Smith contends that we should review the district 

court’s decision that his prior convictions for breaking and 

entering are violent crimes under the ACCA in light of the 

Supreme Court’s decision in Begay v. United States, 128 S. Ct. 

1581 (2008) (holding that a “violent felony” under the 

“otherwise” clause in 18 U.S.C. § 924(e) (2006) must be roughly 

similar to enumerated crimes), and Chambers v. United States, 

2 
129 S. Ct. 687 (2009) (holding, in accord with Begay, that 

failure to report for penal confinement is not a violent felony 

under § 924(e)). Begay was decided well before Smith pled 

guilty or was sentenced, but he did not object to his armed 

career criminal status on this ground in the district court. 

Therefore, this issue is reviewed for plain error. United 

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

 We look to our case law interpreting both the terms 

“crime of violence” under U.S. Sentencing Guidelines Manual 

§ 4B1.1 (2008) and “violent felony” under § 924(e) because the 

language defining these terms is “nearly identical [] and 

materially indistinguishable.” United States v. Roseboro, 

551 F.3d 226, 229 n.2 (4th Cir. 2009). Burglary of a dwelling 

is one of the crimes enumerated in § 4B1.2(a)(2) as a crime of 

violence. As Smith concedes, this court has held that the North 

Carolina offense of breaking and entering is “generic burglary.” 

United States v. Thompson, 421 F.3d 278, 284 (4th Cir. 2005) 

(following Taylor v. United States, 495 U.S. 575 (1990), in 

interpreting § 924(e)). Because the Supreme Court in Begay made 

clear that “a felony that is one of the example crimes” 

specifically enumerated in the statute (i.e., burglary) is a 

proper predicate offense, Smith was properly sentenced as a 

career offender. 

3 
 Smith also asserts that he lacked the required 

predicate convictions for his armed career criminal status 

because, under North Carolina’s structured sentencing scheme, 

his particular prior convictions were not punishable by a term 

of imprisonment exceeding one year. Smith nonetheless correctly 

concedes that his argument is foreclosed by our decision in 

United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005) 

(holding that to determine if a crime is punishable by a term 

exceeding one year, a sentencing court should consider “the 

maximum aggravated sentence that could be imposed for that crime 

upon a defendant with the worst possible criminal history”). 

 Last, Smith argues that the district court violated 

his constitutional rights when it sentenced him as an armed 

career criminal because the predicate felony convictions used to 

increase the statutory penalties for his offense were not 

alleged in the indictment or admitted by him as part of his 

guilty plea. This argument fails under controlling circuit 

precedent. See Thompson, 421 F.3d at 284 n.4 (holding that an 

indictment need not reference or list the prior convictions 

underlying the enhancement); see also United States v. Cheek, 

415 F.3d 349, 352-53 (4th Cir. 2005) (holding that prior 

convictions used as the basis for an armed career criminal 

sentence need not be charged in the indictment or proven beyond 

a reasonable doubt). 

4 
 Moreover, although Smith recognizes that the Supreme 

Court has also held that the Government need not plead a prior 

conviction in an indictment or present such evidence to a jury 

in order to rely on it to enhance a sentence, see

Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 247 

(1998), he asserts that Almendarez-Torres was incorrectly 

decided, as suggested in Apprendi v. New Jersey, 530 U.S. 466, 

489 (2000) (“[I]t is arguable that Almendarez-Torres was 

incorrectly decided.”), and Shepard v. United States, 544 U.S. 

13, 27 (2005) (Thomas, J., concurring) (noting that “a majority 

of the Court now recognizes that Almendarez-Torres was wrongly 

decided”) (citations omitted). Though many defendants have 

argued that the prior conviction exception set forth in 

Almendarez-Torres may no longer be good law, Booker clearly 

maintained the prior conviction exception. See United States v. 

Booker, 543 U.S. 220, 244 (2005) (“Any fact (other than a prior 

conviction) which is necessary to support a sentence . . . must 

be admitted by the defendant or proved to a jury”). Thus, while 

a sentencing court is not permitted to resolve disputed facts 

about a prior conviction that are not evident from “the 

conclusive significance of a prior judicial record,” Shepard, 

544 U.S. at 25, a determination that a defendant is eligible for 

sentencing under the ACCA may be based on a judge’s 

determination that the predicate convictions are for violent 

5 
6 

felonies or drug trafficking crimes if the qualifying facts are 

inherent in the predicate convictions and the court is not 

required to perform additional fact finding. See Thompson, 

421 F.3d at 282-83; see also Cheek, 415 F.3d at 354 (holding 

that, under the Sixth Amendment, the fact of a prior conviction 

need not be submitted to the jury or admitted by the defendant 

for it to serve as the basis for a sentence enhancement). 

Accordingly, we find that the district court’s armed career 

criminal enhancement to Smith’s offense level was not 

unconstitutional. 

 Based on the foregoing, we affirm the district court’s 

judgment. 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. 

AFFIRMED