UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4913

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEVON SHERMAIN WALKER, a/k/a Devon Sherman Walker,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. William L. Osteen, Senior

District Judge. (1:07-cr-00077-WLO)

Submitted: September 10, 2008 Decided: September 25, 2008

Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, William S. Trivette,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Robert A.

J. Lang, Assistant United States Attorney, Winston-Salem, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to a plea agreement, Devon Shermain Walker pled

guilty to possession of a firearm by a felon, in violation of 18

U.S.C.A. §§ 922(g)(1), 924(e) (West 2000 & Supp. 2008). At

sentencing, the district court found that Walker’s prior

convictions classified him as an armed career criminal under the

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

was sentenced to a term of 180 months’ imprisonment. Finding no

error, we affirm.

Following United States v. Booker, 543 U.S. 220 (2005),

appellate review of a district court’s imposition of a sentence is

for abuse of discretion. Gall v. United States, 128 S. Ct. 586,

597 (2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007). The appellate court must first ensure that the district

court committed no procedural error, such as “failing to calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence — including an

explanation for any deviation from the Guidelines range.” Gall,

128 S. Ct. at 597.

Walker claims the district court erred in classifying him

as an armed career criminal. A defendant qualifies as an armed

career criminal under 18 U.S.C.A. § 924(e)(1) if he has three prior
1Walker pled guilty to N.C. Gen. Stat. § 14-33.2 after he

committed three misdemeanor assaults.

2

Although N.C. Gen. Stat. § 14-33.2 states that convictions

pursuant to that statute “shall not be used as a prior conviction

for any other habitual offense statute,” federal law governs

whether a particular state conviction is a qualifying predicate

offense under the ACCA. 18 U.S.C. § 921(a)(20) (2000).

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convictions for a violent felony or serious drug offense. In

determining whether a crime is a violent felony within the meaning

of the ACCA, the offense is considered generically in terms of how

the law defines it and not in terms of how an individual offender

might have committed the offense on a particular occasion. 18

U.S.C.A. § 924(e)(1), (e)(2)(B); Begay v. United States, 128 S. Ct.

1581, 1584 (2008). Walker concedes he has two qualifying violent

felony convictions, but he contests the use of a 2005 North

Carolina felony conviction for Habitual Misdemeanor Assault as the

third qualifying offense. See N.C. Gen. Stat. § 14-33.2 (2005).1

Walker argues that N.C. Gen. Stat. § 14-33.2 is a

recidivist felony and not a violent felony for the purposes of the

ACCA enhancement.2 However, “an offense committed by a repeat

offender is often thought to reflect greater culpability and thus

to merit greater punishment. Similarly, a second or subsequent

offense is often regarded as more serious because it portends

greater future danger and therefore warrants an increased sentence

for purposes of deterrence and incapacitation.” United States v.

Rodriguez, 128 S. Ct. 1783, 1789 (2008). The Supreme Court in
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Rodriguez rejected the argument that a defendant is punished under

federal law for being treated as a recidivist under state law,

noting that “ACCA is itself a recidivist statute.” Id. In

addition, N.C. Gen. Stat. § 14-33.2 is not a sentencing enhancement

but a substantive felony offense. See State v. Smith, 533 S.E.2d

518, 520 (N.C. App. 2000). We thus conclude the district court did

not err when it classified Walker as an armed career criminal under

the ACCA.

Accordingly, we affirm Walker’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.

AFFIRMED