UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4618

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BILLY RAY THOMPSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., District Judge. (3:13-cr-00198-RJC-1)

Submitted: August 20, 2015 Decided: September 9, 2015

Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Ross Hall Richardson, Executive Director, Joshua B. Carpenter, 

FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, 

North Carolina, for Appellant. Jill Westmoreland Rose, Acting 

United States Attorney, Amy E. Ray, Assistant United States 

Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Billy Ray Thompson appeals his conviction and sentence 

after pleading guilty to being a felon in possession of a 

firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1) 

(2012). In the district court, Thompson objected that his prior 

North Carolina breaking or entering convictions were not violent 

felonies under the Armed Career Criminal Act (ACCA) because the 

North Carolina statute is broader than the generic definition of 

burglary. The district court overruled Thompson’s objection and 

sentenced him to the mandatory minimum 180 months in prison. On 

appeal, he contends that North Carolina’s breaking or entering 

offense is broader than generic burglary for the same reason as 

the Maryland offense addressed in United States v. Henriquez, 

757 F.3d 144 (4th Cir. 2014), and the district court violated 

his Fifth and Sixth Amendment rights by sentencing him based on 

facts not alleged in the indictment. We affirm.

We review the issue of whether a prior conviction qualifies 

as a violent felony under the ACCA de novo. United States v. 

Mungro, 754 F.3d 267, 270 (4th Cir.), cert. denied, 135 S. Ct. 

734 (2014). In Mungro, the defendant contended that his prior 

North Carolina breaking or entering convictions did not qualify 

as ACCA predicate offenses “because the elements of ‘breaking or 

entering’ apply to a broader range of conduct than the generic 

definition of burglary.” Id. at 269-70. We held that the North 
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Carolina statute, “as interpreted by the North Carolina Supreme 

Court, sweeps no more broadly than the generic elements of 

burglary.” Id. at 272. Because the issue of whether North 

Carolina’s breaking or entering offense is broader than generic 

burglary was contested and decided in Mungro, we conclude that 

Thompson’s claim is foreclosed by Mungro. Cf. United States v. 

Hemingway, 734 F.3d 323, 335 (4th Cir. 2013) (concluding that a 

prior decision was not controlling precedent on the issue of 

whether a conviction was categorically an ACCA violent felony 

because that issue was not contested in the prior case).

In his second issue, Thompson contends that the district 

court violated his Fifth and Sixth Amendment rights by imposing 

an ACCA sentence based on facts not alleged in the indictment. 

Because he makes this claim for the first time on appeal, we 

review the claim for plain error. See United States v. Obey, 

790 F.3d 545, 549-50 (4th Cir. 2015). We conclude that Thompson 

fails to show any plain error by the district court. See United 

States v. Span, 789 F.3d 320, 330-32 (4th Cir. 2015); United 

States v. Thompson, 421 F.3d 278, 284-87 (4th Cir. 2005).

Accordingly, 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 

this court and argument would not aid the decisional process.

AFFIRMED