UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-5059

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

MICHAEL JEROME THOMPSON,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:07-cr-00035-BO-1)

Submitted: April 24, 2012 Decided: May 8, 2012

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Yvonne V. Watford-McKinney, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellant. James B. 

Craven, III, Durham, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

This is an appeal by the United States that challenges 

a sentence imposed by the district court. Concluding that the 

court misapplied United States v. Simmons, 649 F.3d 237 (4th 

Cir. 2011) (en banc), we vacate and remand for resentencing.

Michael Jerome Thompson pled guilty to possession of a 

firearm by a felon, in violation of 18 U.S.C. § 922(g) (2006). 

The district court held that Thompson’s six prior North Carolina 

breaking and entering convictions were not violent felonies for 

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

924(e) (2006), which mandated a minimum sentence of 180 months’ 

imprisonment, sentencing Thompson to ninety-two months’ 

imprisonment. The Government appealed, and this court held that 

a conviction for breaking and entering under North Carolina 

General Statute § 14-54(a) is, as a matter of law, a “violent 

felony” within the meaning of the ACCA, vacated Thompson’s 

sentence, and remanded the case for resentencing. United 

States v. Thompson, 588 F.3d 197, 202 (4th Cir. 2009). 

Prior to the resentencing hearing, this court issued 

its en banc decision in Simmons, in which we held that a North 

Carolina conviction under the state’s Structured Sentencing Act 

is a felony only if the actual defendant is eligible to have 

imposed upon him a term of imprisonment exceeding one year, 

taking into account his criminal history and the nature of his 
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offense. On remand, the district court found that Thompson’s 

three 1993 North Carolina breaking and entering convictions, as 

well as his 1998 and 2000 North Carolina breaking and entering 

convictions, did not qualify as predicate felony offenses under 

the ACCA in light of Simmons. It resentenced Thompson to 

ninety-two months’ imprisonment. United States v. Thompson, No. 

5:07-CR-00035-BO-1 (E.D.N.C. Oct. 12, 2011) (unpublished order). 

As to Thompson’s three 1993 North Carolina breaking 

and entering convictions, which were sustained under the North 

Carolina Fair Sentencing Act (“FSA”), effective until October 1, 

1994, the district court determined that examination of the 

sentence Thompson actually received, rather than the statutory 

maximum under the FSA, was appropriate. Turning to the sentence 

that Thompson actually received—five years’ imprisonment, 

suspended—the district court found that his 1993 convictions 

were not predicate felony offenses because Thompson served less 

than one year in custodial incarceration. 

With respect to Thompson’s 1998, 2000, and 2002 North 

Carolina convictions, which were sustained under the state’s 

Structured Sentencing Act, the court found that only Thompson’s 

2002 conviction qualified as a predicate felony offense under 

the ACCA, reasoning that Thompson received a sentence of eleven 

to fourteen months’ imprisonment. However, the court concluded 

that Thompson’s 1998 and 2000 convictions did not qualify as 
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predicate felony offenses because Thompson received sentences of 

nine to eleven months and ten to twelve months for each 

conviction, respectively. 

Whether a prior conviction qualifies as a predicate 

offense under the ACCA is a question of statutory interpretation 

that we review de novo. United States v. Foster, 662 F.3d 291, 

293 (4th Cir. 2011). The ACCA provides that a defendant 

convicted under 18 U.S.C. § 922(g) who has three prior 

convictions for violent felonies is subject to a mandatory 

minimum sentence of fifteen years’ imprisonment. 18 U.S.C. 

§ 924(e)(1). A “violent felony” is any crime punishable by a 

term of imprisonment exceeding one year that: “(i) has as an 

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

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

extortion; involves explosives; “or otherwise involves conduct 

that presents a serious potential risk of physical injury to 

another.” § 924(e)(2)(B). We previously ruled on appeal that 

breaking and entering under N.C. Gen. Stat. § 14-54(a) is, as a 

matter of law, a violent crime under the ACCA; accordingly, the 

analysis of whether Thompson should have been sentenced on 

remand pursuant to the ACCA turns on whether Thompson’s North 

Carolina convictions were punishable by a term exceeding one 

year.
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On appeal, the Government contends that Thompson was 

eligible for a term of imprisonment in excess of one year under 

the North Carolina FSA for each of his 1993 breaking and 

entering convictions, and that Simmons does not alter this 

conclusion. The fact that Thompson received a five-year 

sentence, suspended, for his consolidated 1993 breaking and 

entering convictions, the Government asserts, further 

establishes that his convictions qualify as predicate offenses. 

In response, Thompson avers that his 1993 breaking and entering 

convictions were not predicate felony offenses because he served 

less than a year of custodial incarceration for the convictions 

after violating his probation. Even if Thompson’s 1993 

convictions did not qualify as predicate offenses under the 

ACCA, the Government argues, the district court erred in failing 

to sentence Thompson as an armed career criminal because each of 

his additional North Carolina breaking and entering convictions 

from 1998, 2000, and 2002 qualify as felony offenses. 

We conclude that the district court misconstrued

Simmons in finding that Thompson’s three 1993 convictions, as 

well as his 1998 and 2000 convictions, did not qualify as 

predicate felony offenses under the ACCA. Pursuant to Simmons, 

in evaluating whether a defendant’s prior state conviction 

qualifies as a felony under the ACCA, the actual sentence 

imposed is irrelevant; rather, the relevant inquiry is whether 
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the actual defendant was subject to a potential sentence of 

greater than one year of imprisonment. Thus, following Simmons, 

a court must analyze whether the particular defendant, rather 

than a defendant with the worst possible criminal history, could 

have received a sentence in excess of one year for the offense. 

With respect to Thompson’s 1993 convictions, breaking 

and entering is a Class H felony under North Carolina law, 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 

FSA, the presumptive sentence for a Class H felony was three 

years in prison, with a maximum sentence of ten years. 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, as to each of Thompson’s 1993 

breaking and entering convictions, Thompson himself was subject 

to a term of imprisonment exceeding one year. These convictions 

therefore all qualify as predicate felony offenses under the 

ACCA.

Thompson’s North Carolina 1998 and 2000 breaking and

entering convictions likewise qualify as predicate felony 

offenses, as Thompson personally, not merely a hypothetical 

defendant, was subject to a maximum term of imprisonment in 
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excess of one year for each offense under the state’s Structured 

Sentencing Act.

Accordingly, we find that the district court erred in 

failing to sentence Thompson as an armed career criminal under 

the ACCA, as Thompson had six qualifying prior violent felony 

convictions. We therefore vacate Thompson’s sentence and remand 

for resentencing. 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.

VACATED AND REMANDED