United States v. Dante Brooks

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 26, 2021
• Docket: 20-4267
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4267

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DANTE MARQUEZ BROOKS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:19-cr-00582-WO-1)

Submitted: August 24, 2021 Decided: August 26, 2021

Before NIEMEYER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Ira Knight, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Matthew G. T. Martin, United States Attorney, Michael F. Joseph, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Dante Marquez Brooks appeals his sentence after pleading guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e). At the sentencing

hearing, Brooks objected to his designation as an armed career criminal on the ground that

his prior North Carolina breaking and/or entering convictions were not qualifying felonies

under the Armed Career Criminal Act (“ACCA”). The district court overruled Brooks’

objection and sentenced him to 180 months’ imprisonment. On appeal, Brooks argues that

his North Carolina’s breaking and/or entering convictions are not proper ACCA predicates.

The Government has moved to dismiss the appeal based on the appeal waiver in Brooks’

plea agreement. We dismiss the appeal.

Brooks contends that North Carolina’s breaking and/or entering offense is broader

than generic burglary because the offense can be accomplished without entering a structure.

To support his argument, he relies on State v. Lucas, 758 S.E.2d 247 (N.C. App. 2014).

Although acknowledging our decision in United States v. Mungro, 754 F.3d 267, 272 (4th

Cir. 2014) (holding that North Carolina breaking and/or entering is a predicate offense

under the ACCA), Brooks argues that Lucas undercuts Mungro’s holding because the

Mungro court focused only on the entry element of North Carolina’s breaking and/or

entering.

Turning to Brooks’ appeal waiver, Brooks contends that this appeal falls outside of

the scope of his appeal waiver because his sentence exceeds the statutory maximum.

Where, as here, the Government seeks to enforce the appeal waiver and Brooks has not

alleged a breach of the plea agreement, we will enforce the waiver if it is valid, and the

2 issue being appealed falls within the waiver’s scope. See United States v. Beck, 957 F.3d

440, 445 (4th Cir. 2020). A “valid” appeal waiver is one entered by the defendant

knowingly and intelligently, a determination that we make by considering the totality of

the circumstances. United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012).

Brooks does not contest that he knowingly and intelligently waived his right to

appeal. Moreover, our de novo review of the plea hearing leads us to conclude that the

waiver is valid and enforceable. See United States v. Cohen, 888 F.3d 667, 678 (4th Cir.

2018) (stating standard of review). Because the court imposed a sentence well below the

statutory maximum of life imprisonment, Brooks’ challenge falls within the scope of his

appeal waiver. See United States v. Dodge, 963 F.3d 379, 382-83 (4th Cir. 2020)

(reaffirming Mungro’s holding that defendant’s North Carolina convictions for breaking

and/or entering constituted predicate violent felonies under ACCA).

Accordingly, we dismiss the appeal. 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.

DISMISSED