United States v. George McClain , 442 F. App'x 862 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4042
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE FREDERICK MCCLAIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:09-cr-00029-BR-1)
Submitted: July 22, 2011 Decided: August 16, 2011
Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert W. Waddell, THE WADDELL LAW FIRM, PLLC, Greenville, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Frederick McClain appeals the 180-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, McClain
challenges the district court’s finding that his 1965 North
Carolina conviction for breaking and entering, his 1989 North
Carolina conviction for felony sale of cocaine, and his 1990
conviction for felony possession with intent to sell and deliver
cocaine qualified as predicate offenses for purposes of imposing
the enhanced sentence under the ACCA. For the reasons set forth
below, we affirm the district court’s judgment.
Whether a prior conviction qualifies as a predicate
offense under § 924(e) is a question of statutory construction
that we review de novo. United States v. Brandon, 247 F.3d 186,
188 (4th Cir. 2001). Under the ACCA, a defendant is an armed
career criminal and subject to a fifteen-year mandatory minimum
sentence if he violates 18 U.S.C. § 922(g)(1), and has three
prior convictions for violent felonies or serious drug offenses,
committed on occasions different from one another. 18 U.S.C.
§ 924(e)(1). A serious drug offense is “an offense under State
law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance (as
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defined in section 102 of the Controlled Substances Act (21
U.S.C. 802)), for which a maximum term of imprisonment of ten
years or more is prescribed by law[.]” 18 U.S.C. §
924(e)(2)(A)(ii).
McClain argues that his two prior North Carolina drug
convictions do not qualify as serious drug offenses because
North Carolina no longer punishes those offenses by a maximum
term of imprisonment of ten years or more. McClain’s argument
is foreclosed by McNeill v. United States, 131 S. Ct. 2218
(2011), in which the Supreme Court held that a sentencing court
determines whether “an offense under State law is a serious drug
offense by consulting the maximum term of imprisonment
applicable to a defendant’s previous drug offense at the time of
the defendant’s state conviction for that offense.” Id. at 2224
(internal quotation marks omitted). McClain concedes that when
he was convicted of the drug offenses, the convictions carried
maximum terms of imprisonment of at least ten years.
Accordingly, we conclude that the district court properly found
that both of McClain’s drug convictions qualified as serious
drug offenses for purposes of the ACCA.
McClain next argues that the district court erred in
finding that his 1965 North Carolina conviction for breaking and
entering was a violent felony because the statute under which he
was convicted does not meet the definition of generic burglary.
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However, we have held that a conviction for breaking and
entering under the current version of § 14-54, which is
indistinguishable from the 1965 version, qualifies as “generic
burglary,” and is thus a predicate violent felony under the
ACCA. United States v. Thompson, 421 F.3d 278, 284 (4th Cir.
2005) (following Taylor v. United States, 495 U.S. 575 (1990),
in interpreting § 924(e)). Accordingly, we find that the
district court properly determined that McClain’s breaking and
entering conviction qualified as a violent felony.
McClain next claims that his civil rights were
restored for the 1965 breaking and entering conviction, and thus
that conviction could not be used as a predicate offense to
enhance his sentence. Because McClain did not present this
claim to the district court, we review it for plain error.
United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010); Fed.
R. Crim. P. 52(b). To establish plain error, McClain must show
that an error occurred, that the error was plain, and that the
error affected his substantial rights. See United States v.
Olano, 507 U.S. 725, 732 (1993). If McClain makes this three-
part showing, we will reverse only if the error “seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks omitted).
Under 18 U.S.C. § 921(a)(20), a prior felony
conviction cannot be considered a predicate ACCA offense if the
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person who was convicted has had his civil rights restored with
regard to that conviction. While McClain may have had his civil
rights restored at some point with regard to the 1965
conviction, North Carolina amended its Felony Firearms Act, N.C.
Gen. Stat. § 14-415.1 (2009), in 1995 to “replace the five-year
temporary handgun disability with a permanent ban on the
possession of handguns and certain other firearms by ex-felons.”
United States v. Farrow, 364 F.3d 551, 554 (4th Cir. 2004).
Thus, we find that § 14-415.1 revoked McClain’s previously
restored right to possess a firearm, and operated to reinstate
the 1965 conviction for use as a predicate ACCA offense.
McClain’s reliance on Britt v. State, 681 S.E.2d 320 (2009) is
misplaced, as it involve an as-applied challenge to § 14-415.1,
and the facts of that case are manifestly distinguishable Thus,
we conclude that the district court did not commit plain error
in finding that McClain’s 1965 offense qualified as a predicate
ACCA offense.
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 the
court and argument would not aid the decisional process.
AFFIRMED
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