US v. Kenneth Hayes

Filing 920100617

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4585

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. KENNETH RAY HAYES, Defendant ­ Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:08-cr-00336-JAB-1)

Submitted:

May 27, 2010

Decided:

June 17, 2010

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Robert Albert Jamison Lang, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Kenneth Ray Hayes pled guilty pursuant to a plea

agreement to two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e) (2006). The district court sentenced Hayes within his

properly-calculated advisory Sentencing Guidelines range to 204 months' imprisonment on both counts, to be served concurrently. On appeal, Hayes' counsel 386 has U.S. filed 738 a brief pursuant has to also

Anders v.

California,

(1967).

Hayes

submitted a pro se supplemental brief. affirm.

Finding no error, we

Hayes argues that he was improperly sentenced as an armed career criminal because, following Begay v. United States, 553 U.S. 137 to (2008), burglary of a of a commercial building, is not as a

opposed

burglary

residential

building,

qualifying predicate violent felony for purposes of 18 U.S.C. § 924(e). As Hayes concedes, the Supreme Court has decided this See Taylor v. United States,

issue adversely to his position. 495 U.S. 575, 598 (1990).

A conviction in North Carolina for

breaking and entering has been held to satisfy the requirements of the statute. See 18 U.S.C. § 924(e)(2)(B)(ii); United

States v. Bowden, 975 F.2d 1080, 1085 (4th Cir. 1992) (holding that conviction in North Carolina for breaking and entering

amounted to a "generic burglary" under § 924(e)(2)(B)(ii), and 2

constituted a predicate violent felony); see also United States v. Thompson, 421 F.3d 278, 284 (4th Cir. 2005) (following Taylor and finding breaking and entering under North Carolina law is burglary). overrule "[I]t is [the Supreme] Court's prerogative alone to of its precedents." State Oil Co. v. Khan,

one

522 U.S. 3, 20 (1997).

Accordingly, Hayes' claim fails.

In his pro se supplemental brief, Hayes argues that the district court erred in enhancing his sentence pursuant to U.S. Sentencing Guidelines Manual ("USSG") § 4B1.4(b)(3)(A)

(2008) because, according to Hayes, convictions of commercial burglary are not predicate crimes of violence for purposes of the ACCA. predicate As noted, burglary of a commercial building is a offense under the ACCA, and the district court,

therefore, did not err in applying the USSG § 4B1.4(b)(3)(A) enhancement. In accordance with Anders, we have reviewed the record in this case, including the issues raised in Hayes' pro se

supplemental brief, and have found no meritorious issues for appeal. We therefore affirm Hayes' conviction and sentence.

This court requires that counsel inform Hayes, in writing, of the right to petition the Supreme Court of the United States for further review. If Hayes requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then counsel may move in this court 3 for leave to withdraw from

representation.

Counsel's motion must state that a copy thereof

was served on Hayes. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

4