United States v. Wilkins , 416 F. App'x 320 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4331
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOBBY WAYNE WILKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:09-cr-00058-D-1)
Submitted: February 23, 2011 Decided: March 15, 2011
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Ethan A. Ontjes, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Wayne Wilkins appeals the 210-month sentence
imposed by the district court under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e) (2006), following a guilty plea
to possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g) (2006). On appeal, Wilkins contends that the
district court erred in finding that his three prior North
Carolina convictions for breaking and entering, in violation of
N.C. Gen. Stat. § 14-54(a) (2009), qualified as predicate
offenses for purposes of the ACCA. Wilkins also contends that
the 210-month within-guideline-range sentence is substantively
unreasonable because it is greater than necessary to achieve the
purposes of sentencing. We affirm.
We review a sentence for reasonableness, using an
abuse of discretion standard of review. Gall v. United States,
552 U.S. 38, 51 (2007). The first step in this review requires
us to ensure that the district court committed no significant
procedural error, such as improperly calculating the advisory
sentencing guidelines range. United States v. Evans, 526 F.3d
155, 161 (4th Cir. 2008). Although our determination of whether
the ACCA enhancement applies involves review for procedural
error, we review de novo the district court’s determination that
Wilkins’s three prior North Carolina convictions for breaking
and entering qualified as predicate ACCA offenses. See United
2
States v. Carr, 592 F.3d 636, 639 n.4 (4th Cir.), cert. denied,
131 S. Ct. 82 (2010); United States v. Wright, 594 F.3d 259,
262-63 (4th Cir.), cert. denied, 131 S. Ct. 507 (2010). If we
are satisfied that no procedural error occurred in the setting
of a defendant’s sentence, we then consider the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Gall, 552 U.S. at 51.
Wilkins argues that his prior convictions for breaking
and entering do not qualify as predicate ACCA offenses because
the crimes did not involve purposeful and aggressive conduct.
Wilkins acknowledges that this argument has been foreclosed by
our decision in United States v. Thompson, 588 F.3d 197 (4th
Cir.), cert. denied, 130 S. Ct. 1916 (2010), but requests a
change in the law as a result of the Supreme Court’s decision in
Begay v. United States, 553 U.S. 137 (2008). As we explained in
Thompson, Begay does not alter our finding that a North Carolina
conviction for breaking and entering qualifies as a predicate
ACCA offense. Thompson, 588 F.3d at 201-02. Accordingly, we
conclude that the district court did not err in finding that
Wilkins’s prior offenses qualified as predicate offenses and
properly calculated his guideline range.
We next consider the substantive reasonableness of
Wilkins’s sentence. We presume that a sentence within a
properly calculated guideline range is reasonable. United
3
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). We have
reviewed the record and conclude that the within-guideline-range
sentence that Wilkins received is substantively reasonable.
We therefore affirm the district court’s judgment. 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.
AFFIRMED
4