PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-4507

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANK JOSEPH DODGE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Raleigh. Louise W. Flanagan, District Judge. (5:15-cr-00293-FL-1)

Submitted: March 24, 2020 Decided: June 30, 2020

Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Diaz 

and Judge Quattlebaum joined.

G. Alan DuBois, Federal Public Defender, Jaclyn L. DiLauro, Assistant Federal Public 

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, 

for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Raleigh, North Carolina, for Appellee.
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NIEMEYER, Circuit Judge:

After Frank Dodge pleaded guilty to possession of a firearm by a felon, in violation 

of 18 U.S.C. § 922(g), the district court sentenced him to 88 months’ imprisonment. In 

imposing this sentence, the court applied an enhancement under the Armed Career 

Criminal Act (“ACCA”), concluding that Dodge had at least three previous convictions for 

a violent felony, including numerous convictions for breaking and entering, in violation of 

North Carolina General Statutes § 14-54. Dodge contends that the district court erred in 

applying ACCA, arguing that a violation of § 14-54 does not constitute a violent felony for 

ACCA purposes because it sweeps more broadly than generic burglary, a qualifying felony 

offense enumerated in the Act. He acknowledges that generic burglary was defined in 

Taylor v. United States, 495 U.S. 575, 598 (1990), to be the “unlawful or unprivileged entry 

into, or remaining in, a building or other structure, with intent to commit a crime” and that

the North Carolina breaking and entering statute uses virtually the same language, 

providing that “[a]ny person who breaks or enters any building with intent to commit any 

felony or larceny therein shall be punished,” N.C. Gen. Stat. § 14-54(a). Nonetheless, he 

focuses on the fact that the North Carolina statute defines the word “building” to include 

any “structure designed to house or secure within it any activity or property.” Id.

§ 14-54(c) (emphasis added). Because “building” is defined to include a structure storing 

property, § 14-54 is, according to Dodge, broader than generic burglary and therefore its 

violation does not result in an ACCA predicate conviction.

While we recognize, as noted in more detail below, that Dodge makes an argument

based on language from two recent Supreme Court decisions, we nonetheless are bound to 
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follow our prior decision in United States v. Mungro, 754 F.3d 267, 272 (4th Cir. 2014), 

where we held that the North Carolina breaking and entering statute “sweeps no more 

broadly than the generic elements of burglary” and therefore its violation qualifies as an 

ACCA predicate conviction. Moreover, the Supreme Court language cited by Dodge

focused on whether a State’s inclusion of vehicles in the text of its definition of burglary 

made the statute broader than the generic definition of burglary, an issue not before us 

today. Consistent with that, we have continued to rely on Mungro as binding precedent in 

at least 17 published and unpublished opinions decided both before and after the Supreme 

Court issued its opinions. In some unpublished opinions, we have even rejected the very 

argument that Dodge makes here. Because our holding in Mungro has not been 

superseded, we affirm.

I

The presentence report prepared for Dodge’s sentencing listed as part of his criminal 

history seven prior felony convictions for breaking and entering, in violation of N.C. Gen. 

Stat. § 14-54(a). Based on these convictions, the report indicated that, pursuant to ACCA, 

Dodge was subject to a mandatory minimum sentence of 15 years’ imprisonment. 

At his sentencing hearing, Dodge argued that his prior North Carolina breaking and 

entering convictions did not qualify as violent felony convictions for purposes of applying 

ACCA’s sentencing enhancement because § 14-54 criminalizes the breaking and entering 

into a broader range of structures than does burglary, including, for example, structures 

that house “property.” He maintained that while our prior decision in Mungro held that an 
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offense under § 14-54(a) qualified as a violent felony for ACCA purposes, it did not 

explicitly analyze the scope of the definition of “building” used in the North Carolina

statute or consider whether it is broader than that used in generic burglary. Dodge thus 

argued that Mungro was not controlling. 

While the district court acknowledged Dodge’s objection, it stated that it was 

obligated to follow our precedent in Mungro. Accordingly, it accepted the presentence 

report’s conclusion that Dodge was subject to ACCA’s 15-year mandatory minimum 

sentence as an armed career criminal. Nonetheless, the government filed a motion for a 

downward departure, and the district court sentenced Dodge to 88 months’ imprisonment. 

From the judgment entered on July 9, 2018, Dodge filed this appeal, challenging 

only the district court’s application of ACCA in sentencing him.

II

In relevant part, ACCA provides that a person convicted of violating 18 U.S.C. 

§ 922(g), who has three prior convictions for a violent felony is subject to a mandatory 

minimum sentence of 15 years’ imprisonment. See 18 U.S.C. § 924(e)(1). The term 

“violent felony” as used in § 924(e)(1) is defined to include, among other things, “any 

crime punishable by imprisonment for a term exceeding one year” that “is burglary, arson, 

or extortion, [or] involves use of explosives.” Id. § 924(e)(2)(B)(ii) (emphasis added). 

In this case, the district court concluded that North Carolina breaking and entering, 

in violation of § 14-54, qualifies as “burglary” and that Dodge’s multiple convictions under 
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that statute thus triggered application of ACCA’s sentencing enhancement. It is this ruling 

that Dodge challenges. 

To determine whether North Carolina breaking and entering under § 14-54 

constitutes “burglary” as used in 18 U.S.C. § 924(e)(2)(B)(ii), we apply the categorical 

approach, comparing the North Carolina statute’s elements with those of generic federal 

burglary to ascertain whether the state statute has the same elements or elements defined 

more narrowly than the generic federal crime. See Descamps v. United States, 570 U.S. 

254, 257 (2013). If the elements are the same or more narrow, a violation of the state 

statute qualifies as a predicate conviction under ACCA.

The Supreme Court has defined the generic crime of burglary in ACCA as “an 

unlawful or unprivileged entry into, or remaining in, a building or other structure, with 

intent to commit a crime,” Taylor, 495 U.S. at 598, and therefore, we understand the 

elements of generic burglary as (1) an unlawful or unprivileged entry or presence in (2) a 

requisite location, meaning “a building or other structure,” (3) with the intent to commit a 

crime. 

Similar to the generic federal crime, the North Carolina breaking and entering 

offense is committed when a person “[1] breaks or enters [2] any building [3] with intent 

to commit any felony or larceny therein.” N.C. Gen. Stat. § 14-54(a). The North Carolina 

statute, however, includes a definition of “building” to mean “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. § 14-54(c). 
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In Mungro, we compared the North Carolina breaking and entering statute with 

generic federal burglary and held that “N.C. Gen. Stat. § 14-54(a), as interpreted by the 

North Carolina Supreme Court, sweeps no more broadly than the generic elements of 

burglary.” 754 F.3d at 272. In reaching that conclusion, however, we did not specifically 

consider the relative scopes of the “building” elements.

Since deciding Mungro, we have cited it in two published opinions without 

qualification. See United States v. Mack, 855 F.3d 581, 586 n.2 (4th Cir. 2017) (citing 

Mungro for its substantive holding that an offense under N.C. Gen. Stat. § 14-54 is an 

ACCA predicate); United States v. McCollum, 885 F.3d 300, 305 n.5 (4th Cir. 2018) 

(quoting Mungro’s description of the categorical approach). We have also relied on it in 

at least 15 unpublished decisions for its holding that § 14-54 constitutes generic burglary 

for purposes of applying ACCA’s sentencing enhancement. See United States v. Judd, No. 

19-4540, 2020 WL 1490740 (4th Cir. Mar. 27, 2020); United States v. Davidson, 802 F. 

App’x 800 (4th Cir. 2020); United States v. Denton, 773 F. App’x 134 (4th Cir. 2019); 

United States v. Joy, 771 F. App’x 307 (4th Cir. 2019); United States v. Hill, 771 F. App’x 

195 (4th Cir. 2019); United States v. Street, 756 F. App’x 310 (4th Cir. 2019); United States 

v. Beatty, 702 F. App’x 148 (4th Cir. 2017); United States v. Brown, 670 F. App’x 191 (4th 

Cir. 2016); United States v. Jones, 669 F. App’x 110 (4th Cir. 2016); United States v. 

Harris, 653 F. App’x 215 (4th Cir. 2016); United States v. Bolden, 645 F. App’x 282 (4th 

Cir. 2016); United States v. Thompson, 615 F. App’x 160 (4th Cir. 2015); United States v. 

Lockamy, 613 F. App’x 227 (4th Cir. 2015); United States v. Ingram, 597 F. App’x 151 

(4th Cir. 2015); In re Whitley, 577 F. App’x 212 (4th Cir. 2014). Notably, in at least 3 of 
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these unpublished decisions, we explicitly rejected the same “locational element” argument 

that Dodge makes here. See Denton, 773 F. App’x at 135; Street, 756 F. App’x at 311; 

Beatty, 702 F. App’x at 150–51; see also United States v. Maham, 767 F. App’x 532, 533

(4th Cir. 2019).

Dodge makes two arguments to avoid the Mungro line of cases. First, he correctly 

notes that the Mungro decision itself did not explicitly consider whether § 14-54(a)’s 

“building” element matched that of generic federal burglary. And second, he notes that 

since Mungro was decided, the Supreme Court has handed down two decisions clarifying 

the meaning of the term “building” — Mathis v. United States, 136 S. Ct. 2243 (2016), and 

United States v. Stitt, 139 S. Ct. 399 (2018) — which, he maintains, indicate that North 

Carolina’s definition of “building” is broader than that included in a generic burglary 

offense. 

As to Dodge’s first argument, although Mungro did not explicitly consider 

§ 14-54(a)’s “building” element, we nonetheless held unequivocally that “N.C. Gen .Stat. 

§ 14-54(a), as interpreted by the North Carolina Supreme Court, sweeps no more broadly 

than the generic elements of burglary” and therefore a conviction under that statute

qualifies as an ACCA predicate conviction. 754 F.3d. at 272. And were we to accept 

Dodge’s argument, we could no longer follow that holding. Yet, as a three-judge panel, 

we are precluded from overruling Mungro. See United States v. Collins, 415 F.3d 304, 311 

(4th Cir. 2005) (“A decision of a panel of this court becomes the law of the circuit and is 

binding on other panels unless it is overruled by a subsequent en banc opinion of this court 

or a superseding contrary decision of the Supreme Court” (citation omitted)). Of course, 
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if the Supreme Court has issued a “superseding contrary decision,” we are bound to apply 

it, which brings us to Dodge’s second argument.

Dodge contends that the Supreme Court’s decisions in Mathis and Stitt clarified the 

meaning of “building” for ACCA purposes and that clarification places Mungro in doubt. 

In Mathis — decided two years after Mungro — the Supreme Court addressed the 

“building” element of an Iowa burglary statute and reasoned that because it applied to 

burglary of “any building, structure, or land, water, or air vehicle,” 136 S. Ct. at 2250 

(quoting Iowa Code § 702.12 (2013)) (cleaned up), it covered a greater swath of conduct 

than generic federal burglary and thus could not constitute an ACCA predicate offense, id. 

at 2251. This was so because while buildings and other structures satisfy generic burglary’s 

locational element, vehicles do not. Id. at 2250.

And in Stitt, the Court held that the burglary of a structure or vehicle qualified as 

generic burglary under ACCA if the state statute required that the vehicle be adapted or 

customarily used for overnight accommodation. 139 S. Ct. at 406–07. In so holding, the 

Court noted that generic burglary is a crime concerned with violent confrontations that may 

arise when people are present and reasoned that “[a]n offender who breaks into a mobile 

home, an RV, a camping tent, a vehicle, or another structure that is adapted for or 

customarily used for lodging runs a similar or greater risk of violent confrontation.” Id. at 

406. There is also explanatory language in Stitt suggesting, but not holding, that the 

locational element of generic burglary might not encompass structures intended for the 

storage of property rather than for occupancy: 
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In Taylor, for example, we referred to a Missouri breaking and entering 

statute that among other things criminalized breaking and entering “any boat 

or vessel, or railroad car.” Ibid. (citing Mo. Rev. Stat. § 560.070 (1969); 

emphasis added). We did say that that particular provision was beyond the 

scope of the federal Act. But the statute used the word “any”; it referred to 

ordinary boats and vessels often at sea (and railroad cars often filled with 

cargo, not people), nowhere restricting its coverage, as here, to vehicles or 

structures customarily used or adapted for overnight accommodation. The 

statutes before us, by using these latter words, more clearly focus upon 

circumstances where burglary is likely to present a serious risk of violence.

In Mathis, we considered an Iowa statute that covered “any building, 

structure, . . . land, water or air vehicle, or similar place adapted for overnight 

accommodation of persons or used for the storage or safekeeping of anything 

of value.” Iowa Code § 702.12 (2013). Courts have construed that statute to 

cover ordinary vehicles because they can be used for storage or safekeeping. 

See State v. Buss, 325 N.W.2d 384 (Iowa 1982); Weaver v. Iowa, 949 F.2d 

1049 (9th Cir. 1991). That is presumably why, as we wrote in our opinion, 

“all parties agree[d]” that Iowa’s burglary statute “covers more conduct than 

generic burglary does.” Mathis, 136 S. Ct. at 2250.

Id. at 407 (cleaned up) (second and third emphases added). 

Thus, Dodge argues that because no published decision of this court has explicitly 

resolved the question of whether the “building” element of North Carolina’s breaking and 

entering statute is overbroad, the language from Mathis and Stitt indicates that it very well 

may be. 

Nonetheless, as Dodge seems to acknowledge, the fact remains that neither Mathis 

nor Stitt is a superseding contrary decision of the Supreme Court overruling Mungro’s 

explicit holding that North Carolina breaking and entering qualifies as a violent felony for 

ACCA purposes. The relevant discussion in these two cases focused primarily on whether 

there was a distinction between “vehicles,” even if used for temporary accommodation, 

and “buildings.” See Mathis, 136 S. Ct. at 2250; Stitt, 139 S. Ct. at 406–07. And while 
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language in Stitt implies that generic federal burglary is concerned with violent 

confrontations that might arise when people are present, whether in buildings, structures, 

or vehicles, its holding was limited to the vehicle context. Moreover, both Mathis and Stitt 

relied on Taylor’s definition of generic burglary, as did we in Mungro, and neither 

purported to articulate a new test for assessing the locational element of that definition.

Thus, we are faced with prior Fourth Circuit precedent that could be read as being 

in tension with intervening Supreme Court reasoning but no directly applicable Supreme 

Court holding. In a similar situation, we have determined that we could not overturn our 

prior precedent where our cases post-dating the Supreme Court developments continued to 

rely on prior panel decisions as binding. See United States v. Prince-Oyibo, 320 F.3d 494, 

501 (4th Cir. 2003) (reasoning that while Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 

579 (1993), may have “alter[ed] the legal landscape” with respect to the admissibility of 

certain evidence, this court’s subsequent reliance on pre-Daubert polygraph evidence 

decisions established that those decisions continued to carry precedential force and thus 

could not be overruled by a three-judge panel). Just as in Prince-Oyibo, we have repeatedly 

treated Mungro as binding precedent, even after both Mathis and Stitt.

At bottom, we conclude that Mathis and Stitt do not overrule our prior holding in 

Mungro that a conviction under N.C. Gen. Stat. § 14-54(a) qualifies as an ACCA predicate 

conviction under 18 U.S.C. § 924(e)(2)(B)(ii). And because that holding is explicit and we 

have repeatedly relied on it in subsequent decisions, it governs our review in this case. 

The judgment of the district court is accordingly

AFFIRMED.