UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4458

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LARRY LOWERY, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:18-cr-00120-D-1)

Submitted: November 17, 2021 Decided: January 7, 2022

Before THACKER and HARRIS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Jaclyn L. Tarlton, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. G. Norman Acker, III, Acting United States Attorney, Jennifer P. May- Parker, Assistant United States Attorney, Joshua L. Rogers, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Larry Lowery, Jr., appeals his sentence of 180 months’ imprisonment and 3 years’

supervised release imposed following his guilty plea to possession of a firearm by a

convicted felon, in violation of

(g)(1). On appeal, Lowery asserts that the

district court erred in applying a sentencing enhancement under the Armed Career Criminal

Act (ACCA),

(e), as his prior North Carolina convictions for breaking or

entering and breaking or entering a place or worship do not qualify as predicate violent

felonies under the ACCA. Lowery also argues that the district court committed several

errors when imposing his discretionary conditions of supervised release. Although we

uphold Lowery’s ACCA enhancement, we find reversible error in Lowery’s supervised

release conditions, and we vacate and remand for resentencing.

We review de novo whether a prior conviction qualifies as an ACCA violent felony.

United States v. Cornette,

(4th Cir. 2019). In United States v. Mungro,

(4th Cir. 2014), 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 under

(e)(2)(B)(ii).”

. Lowery relies in part on several intervening

Supreme Court cases, including Mathis v. United States,

(2016), and

United States v. Stitt,

(2018), to argue that North Carolina breaking and

entering is, in fact, categorically broader than generic burglary. However, we recently

reaffirmed our prior holding in Mungro, notwithstanding Mathis and Stitt. United States

v. Dodge,

, 383–85 (4th Cir. 2020), cert. denied,

(2021).

2 “[O]ne panel [of this court] cannot overrule a decision issued by another panel.” United

States v. Williams,

(4th Cir. 2015) (internal quotation marks omitted).

Because Mungro and Dodge foreclose Lowery’s challenges to his ACCA enhancement,

we find no reversible error in his term of imprisonment.

Turning to Lowery’s supervised release conditions, the Government concedes, and

Lowery agrees, that the discretionary conditions of supervised release orally announced by

the district court are inconsistent with those listed in the written judgment, in violation of

United States v. Rogers,

(4th Cir. 2020). Although “the [G]overnment’s

concession of error is not binding on this court,” United States v. Hairston,

(4th Cir. 2008), the parties’ assertion of Rogers error finds support in the record. And,

as we recently clarified, the remedy for a Rogers error “is to vacate the sentence” in its

entirety “and remand for the district court to resentence” the defendant. United States v.

Singletary,

(4th Cir. 2021). Because vacatur and remand is warranted

on this basis, we need not reach Lowery’s remaining challenges to his supervised release

conditions. See

Accordingly, we vacate the district court’s judgment and remand for resentencing

consistent with this opinion. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

VACATED AND REMANDED

3