US v. Allen Mack

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:14-cr-00462-MGL-1 Copies to all parties and the district court/agency. [999748909].. [15-4144]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4144

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN KIRKLAND MACK,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville.
Mary G. Lewis, District Judge.
(6:14-cr-00462-MGL-1)

Submitted:

December 29, 2015

Decided:

February 4, 2016

Before KING, SHEDD, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Lora Blanchard, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.
William N. Nettles, United
States Attorney, Max B. Cauthen, III, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Allen Kirkland Mack appeals his conviction and the 120month sentence imposed following his guilty plea to possessing
firearms and ammunition after sustaining a felony conviction, in
violation

of

18

U.S.C.

§§ 922(g)(1),

924(a)(2),

(e)

(2012).

Mack’s attorney initially filed her brief pursuant to Anders v.
California, 386 U.S. 738 (1967), averring that there were no
nonfrivolous issues for appeal but asking this court to review
the reasonableness of Mack’s sentence.

Although informed of his

right to file a pro se supplemental brief, Mack declined to do
so.
After

conducting

our

Anders

review

of

identified the following nonfrivolous issue:

the

record,

we

what impact, if

any, United States v. McLeod, __ F.3d __, No. 14-4766, 2015 WL
6575673 (4th Cir. Oct. 30, 2015), has on the computation of
Mack’s sentencing range. *

We directed the parties to file merits

briefs addressing this issue.

*

In McLeod, this court held that South Carolina’s seconddegree burglary statute, see S.C. Code Ann. § 16-11-312(B)
(2003), read in conjunction with the statutory section that
defines
the
word
“building”
as
any
structure,
vehicle,
watercraft, or aircraft where any person lodges or lives, where
people assemble for a variety of purposes, or where goods are
stored, see S.C. Code Ann. § 16-11-310(1) (2003), “provid[ed]
elements alternative to generic burglary,” and thus that the
district court could use the modified categorical approach to
determine McLeod’s “crime of conviction.”
McLeod, 2015 WL
6575673, at *4.
We vacated McLeod’s sentence and remanded his
(Continued)
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In her merits brief, counsel for Mack argues that, under
McLeod,

Mack’s

convictions

no

prior

South

Carolina

longer

qualify,

third-degree

categorically,

as

burglary
predicate

violent felonies under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e).

Counsel asks us to vacate Mack’s sentence and remand

this case to the district court for resentencing in light of
McLeod.

The Government agrees and likewise asserts that Mack is

entitled to relief under McLeod.

As discussed below, we affirm

Mack’s conviction but vacate his sentence and remand this case
to the district court for resentencing in light of McLeod.
First, although not raised as an issue in the Anders brief,
we have reviewed the transcript of Mack’s Fed. R. Crim. P. 11
hearing and conclude that the district court complied with the
requirements
Moreover,

of

Mack

Rule
did

not

11

in

raise

accepting
any

Rule

Mack’s
11

guilty

objections

plea.
in

the

district court, and any omissions from the Rule 11 colloquy do
not amount to plain error.

See United States v. Vonn, 535 U.S.

55, 59 (2002) (holding that an otherwise unraised claim of Rule
11 error is reviewed for plain error); see also United States v.
Dominguez

Benitez,

542

U.S.

74,

83

(2004)

(ruling

that,

to

case for resentencing because the documents available for review
under the modified categorical approach did not conclusively
resolve whether McLeod was convicted of generic burglary.
Id.
at *5-6.

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establish that a district court’s noncompliance with Rule 11
affected substantial rights, a defendant bears the burden of
showing “a reasonable probability that, but for the error, he
would not have entered the plea”).
Finally,

our

review

of

McLeod

and

the

other

pertinent

authorities confirms the parties’ position that Mack should be
resentenced in light of McLeod.
sentence

and

resentencing

remand
on

this

this
basis.

Accordingly, we vacate Mack’s

case
We

to

the

dispense

district
with

court

oral

for

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 IN PART,
VACATED IN PART,
AND REMANDED

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