UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4389

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY VONN HARRIS, a/k/a Anthony Vonne Harris,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:10-cr-00289-TDS-1)

Submitted: November 29, 2011 Decided: December 15, 2011

Before MOTZ, GREGORY, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, 

North Carolina, for Appellant. Ripley Rand, United States 

Attorney, Clifton T. Barrett, Assistant United States Attorney, 

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to a written plea agreement, Anthony Vonn 

Harris pleaded guilty to possession of a firearm after having 

previously been convicted of a crime punishable by a term of 

imprisonment exceeding one year, in violation of 18 U.S.C. 

§§ 922(g)(1), 924(e) (2006). The district court found Harris 

qualified for sentencing pursuant to the Armed Career Criminal 

Act (“ACCA”), 18 U.S.C. § 924(e), and sentenced Harris to the 

statutory mandatory minimum term of 180 months’ imprisonment. 

This appeal timely followed. 

In his opening brief, Harris asserts that his case 

should be remanded to allow the district court to reconsider the 

armed career criminal designation in light of this court’s en 

banc decision in United States v. Simmons, 649 F.3d 237 (4th 

Cir. 2011). Particularly, Harris complains that the record 

lacked sufficient information regarding his prior record level 

and whether he was sentenced within the presumptive range, both 

of which were necessary to determine whether his prior North 

Carolina convictions were for crimes punishable by more than one 

year of imprisonment. In response, the Government argues that, 

under the North Carolina Fair Sentencing Act, which was in

effect when Harris sustained three of the convictions identified 

as ACCA predicates, these crimes were all punishable by more 

than one year of imprisonment, independent of any findings 
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regarding Harris’ recidivism. Thus, the Government advances, 

Simmons is inapplicable to this case. 

In his reply brief, which is submitted pursuant to 

Anders v. California, 386 U.S. 738 (1967), counsel for Harris 

suggests that there is no merit to Harris’ claim under Simmons, 

but asks this court to review both his conviction and the armed 

career criminal designation for any potential Simmons error. 

Although advised of his right to do so, Harris has not filed a 

pro se supplemental brief. For the following reasons, we 

affirm.

I.

We first conclude that Harris’ conviction is valid. 

Section 922(g)(1) prohibits the possession of a firearm by any 

person “who has been convicted in any court of, a crime 

punishable by imprisonment for a term exceeding one year.” 18 

U.S.C. § 922(g)(1). As the Government points out, three of 

Harris’ prior North Carolina convictions — two 1992 convictions 

for breaking or entering and one 1994 conviction for assault 

with a deadly weapon on a government official*

 * According to his presentence report, Harris received a 

nine-year suspended sentence on the 1992 breaking or entering 

convictions and a five-year sentence on the assault conviction. 

Harris did not dispute the facts relevant to these prior 

convictions in the district court. 

— pre-date 
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enactment of North Carolina’s Structured Sentencing Act, which 

was at issue in Simmons. See generally State v. Garnett, 706 

S.E.2d 280, 288 (N.C. Ct. App. 2011) (explaining that the Fair 

Sentencing Act “was repealed effective 1 October 1994 and 

succeeded by the Structured Sentencing Act, N.C. Gen. Stat. 

§§ 15A–1340.10 to –1340.33”). Breaking or entering is a Class H 

felony, see N.C. Gen. Stat. § 14-54 (2009); State v. Salters, 

308 S.E.2d 512, 515 (N.C. Ct. App. 1983), and pursuant to North 

Carolina’s Fair Sentencing Act, the presumptive sentence for a 

Class H felony was three years in prison. See State v. 

Lawrence, 667 S.E.2d 262, 264 (N.C. Ct. App. 2008) (“Under the 

Fair Sentencing Act, a Class H felony carried a maximum 

punishment of ten years, with a presumptive term of three 

years.”). Accordingly, either of the 1992 breaking or entering 

convictions, for which Harris was sentenced to nine years of 

imprisonment, suspended, qualifies as a proper predicate for the 

§ 922(g) charge, and Simmons does not alter this conclusion. 

Further, we have reviewed the transcript of Harris’ Fed. R. 

Crim. P. 11 hearing and conclude that the district court 

complied with the mandates of Rule 11 in accepting Harris’ 

guilty plea. We therefore affirm Harris’ conviction. 
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II.

We next review the propriety of Harris’ armed career 

criminal designation. Because Harris did not challenge his 

armed career criminal status in the district court, this issue 

is reviewed for plain error. See United States v. Slade, 631 

F.3d 185, 189 (4th Cir.) (stating standard of review), cert. 

denied, 131 S. Ct. 2943 (2011). “To prevail under this 

standard, [Harris] must show that an error was made, is plain, 

and affected his substantial rights.” Id. at 190. Only if the 

error “affected the outcome of the district court proceedings” 

will the error be viewed as affecting the defendant’s 

substantial rights. United States v. Knight, 606 F.3d 171, 178 

(4th Cir. 2010) (internal quotation marks omitted). Thus, “the 

defendant must show that he would have received a lower sentence 

had the error not occurred.” Id. Finally, “[t]he decision to 

correct the error lies within our discretion, and we exercise 

that discretion only if the error seriously affects the 

fairness, integrity or public reputation of judicial 

proceedings.” Id. at 177-78 (alteration in original) (internal 

quotation marks omitted). 

Under 18 U.S.C. § 924(e), if a defendant violates 

§ 922(g) after sustaining three prior convictions for violent 

felonies or serious drug offenses, the statutory mandatory 

minimum term of imprisonment is fifteen years. 18 U.S.C.
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§ 924(e)(1). A violent felony is defined as a crime, punishable 

by a term exceeding one year of imprisonment, that (a) “has as 

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

force against” another person; or (b) is burglary, arson, or 

extortion; involves explosives; “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).

We have thoroughly reviewed the record and conclude 

the district court properly determined that Harris’ prior North 

Carolina convictions for felony breaking or entering and felony 

assault with a deadly weapon on a government official qualified 

as ACCA predicates. First, these North Carolina convictions 

fall squarely within the parameters of 18 U.S.C. § 924(e)(2)(B). 

See United States v. Bowden, 975 F.2d 1080, 1083-85 (4th Cir. 

1992) (concluding that breaking or entering under North Carolina 

law qualifies as “burglary”); see also United States v. 

Thompson, 421 F.3d 278, 284 (4th Cir. 2005) (explaining that 

Bowden addressed “why violations of the North Carolina [breaking 

or entering] statute . . . are ‘violent felonies’ for ACCA 

purposes” (internal citation omitted)). Further, that Harris 

was indeed sentenced to greater than one year of imprisonment 

for each of these convictions satisfies the statutory durational 

requirement to qualify a prior conviction as a “felony.” 
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Accordingly, we affirm the district court’s finding that Harris 

qualified for sentencing under the ACCA. 

In accordance with the requirements of Anders, we have 

examined the entire record for any meritorious issues and have 

found none. The statutory mandatory minimum sentence the court 

imposed was procedurally and substantively reasonable. We thus 

affirm the district court’s judgment. This court requires that 

counsel inform Harris, in writing, of the right to petition the 

Supreme Court of the United States for further review. If 

Harris 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 

Harris. 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