UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4589

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICKIE MARKIECE ATKINSON, a/k/a Drama,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:16-cr-00250-D-1)

Submitted: December 28, 2018 Decided: January 14, 2019

Before WILKINSON, WYNN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Acting Federal Public Defender, Jaclyn L. DiLauro, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Acting First Assistant United States Attorney, Barbara D. Kocher, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Rickie Markiece Atkinson appeals from his 240-month sentence imposed pursuant

to his guilty plea to possession of a firearm and ammunition by a convicted felon. On

appeal, Atkinson challenges his designation as an armed career criminal and argues that

the district court erred in departing upwards from the calculated Sentencing Guidelines

range. We affirm.

We review de novo the question of whether a defendant’s prior convictions for

breaking and entering qualify as predicate felonies under the Armed Career Criminal Act

(ACCA). United States v. Winston,

(4th Cir. 2017). An armed career

criminal is, in pertinent part, “a person who violates [

(g) (2012)] . . . and

has three previous convictions . . . for a violent felony.”

(e)(1) (2012).

“The ACCA defines ‘violent felony’ to include, as relevant here, any offense that ‘is

burglary.’” United States v. Mungro,

(4th Cir. 2014) (quoting

(e)(2)(B)(ii)). “Thus, any burglary offense is an ACCA predicate offense.”

In Mungro, the “question presented” was “does North Carolina’s ‘breaking or

entering’ offense [under

(a)] qualify as burglary and, thus, as a

predicate offense under the ACCA?”

After a thorough analysis of the statute and

relevant case law, we “conclude[d] that

(a), as interpreted by the

North Carolina Supreme Court, sweeps no more broadly than the generic elements of

burglary” and “therefore qualifies as an ACCA predicate offense.”

.

Atkinson argues that Mungro is not controlling here because, in that case, this

Court focused its analysis on the “unlawful entry element” of

(a)

2 and not on the statute’s definition of the term “building.” Atkinson contends that

(a) is broader than generic burglary because North Carolina courts have

convicted defendants under that statute for breaking and entering into mobile homes and

trailers. Generic burglary, Atkinson argues, is narrower and does not encompass, for

example, burglary of a boat, motor vehicle, air vehicle, booth, tent, or railroad car.

Atkinson claims that we are not bound by Mungro because Mungro did not explicitly

address this issue.

We reject this argument and hold that North Carolina Breaking and Entering’s

“building” element sweeps no broader than generic burglary’s “building” element.

Accordingly, we find that Atkinson was properly treated as an armed career criminal.

Atkinson next argues that the district court’s decision to upwardly depart and the

extent of the departure were unwarranted. He contends that the district court’s reasoning

was not sufficiently compelling to support such a large departure, * especially where

certain of the district court’s reasons—offense conduct, obstruction of justice, and

criminal history—were adequately accounted for in the calculation of the original

Guidelines range. Atkinson also notes that nearly all of his unscored convictions were

more than fifteen years old.

When reviewing a departure, we consider whether the sentencing court acted

reasonably both with respect to its decision to depart and with respect to the extent of the

* The district court departed from a 180- to 188-month Guidelines range to a range of 210 to 262 months.

3 divergence from the sentencing range. United States v. Howard,

(4th

Cir. 2014) (internal quotation marks omitted). “An appellate court owes due deference to

a district court’s assessment of the [18 U.S.C.] § 3553(a) [2012] factors, and mere

disagreement with the sentence below is insufficient to justify reversal of the district

court.” Id. at 531 (internal quotation marks omitted). The district court departed

pursuant to United States Sentencing Guidelines Manual § 4A1.3(a)(1), p.s. (2016),

which “authorizes an upward departure when reliable information indicates that the

defendant’s criminal history category substantially under-represents the seriousness of

the defendant’s criminal history or the likelihood that the defendant will commit other

crimes.” United States v. McCoy,

(4th Cir. 2015) (internal quotation

marks omitted). Further, once the district court reached a criminal history category of VI,

the district court moved to a higher offense level appropriate to the case. USSG

§ 4A1.3(a)(4)(B), p.s.

Atkinson contends that the district court relied too heavily on his earlier

convictions in upwardly departing. However, the district court discussed each of

Atkinson’s convictions, noting his age at the time and the resulting, generally lenient

sentence. It then thoroughly explained its reasoning for the departure, relying not just on

Atkinson’s earlier criminal history, but on a combination of the length of Atkinson’s

criminal history, the lenient sentences he received, his numerous institutional infractions,

his obstruction of justice, his current and past violent behavior, and his failure to modify

his behavior for any period of time.

4 The court correctly considered Atkinson’s unscored violations, as well as other

reasons for the upward departure, including “the nature of the prior offenses” and any

prior lenient treatment. USSG § 4A1.3, p.s. cmt. 2(B) (authorizing consideration of “the

nature of the prior offenses rather than simply their number”); see USSG § 4A1.3, p.s.

background (“[A] defendant with an extensive record of serious, assaultive conduct who

had received what might now be considered extremely lenient treatment in the past might

have the same criminal history category as a defendant who had a record of less serious

conduct.”). Moreover, while certain circumstances discussed by the court were at least

partially taken into account by the Guidelines range, the district court offered numerous

reasons supported by the record for its decision to depart, as well as for the extent of the

departure, and the court’s reasoning continually underscored the extraordinarily serious

nature of Atkinson’s history.

For instance, the court concluded that the dates and circumstances of Atkinson’s

criminal history, as well as his institutional infractions, showed a “100 percent” chance of

recidivism, which the court called “extraordinary.” The court recognized that Atkinson’s

violent behavior continued even in prison while awaiting disposition of the instant case.

Further, the court considered the circumstances surrounding Atkinson’s criminal conduct,

including his dismissed charge and his attempt to obstruct justice and avoid

responsibility.

Next, the district court considered the appropriate § 3553(a) factors in imposing

the 240-month sentence. Atkinson’s criminal record reflected a steady pattern of

offenses, some involving violence, since he was 16. The district court also considered

5 numerous other relevant factors. See

(a)(1)-(2) (2012). While Atkinson

claims that the district court failed to account for mitigating circumstances like his mental

health and difficult upbringing, the record reflects that the district court discussed the

mitigating factors, but found Atkinson’s criminal behavior in noncustodial and custodial

settings more telling. While the sentence selected by the district court is significantly

higher than the predeparture Guidelines range established at sentencing, the court

grounded the sentence in the § 3553(a) factors. We therefore find that Atkinson’s

sentence is reasonable and that the district court did not err procedurally or substantively

in its decision to depart.

Thus, we affirm Atkinson’s sentence. We dispense with oral argument because

the facts and legal contentions are adequately presented the materials before this court

and argument would not aid the decisional process.

AFFIRMED

6