UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4963


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DOMINIQUE CARMICHAEL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
Chief District Judge. (5:08-cr-00360-F-1)


Submitted:   November 30, 2010            Decided:   January 21, 2011


Before WILKINSON, KING, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark A. Yurachek, THE LAW OFFICES OF MARK ALLEN YURACHEK, LLC,
Atlanta, Georgia, 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Unpublished opinions are not binding precedent in this circuit.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:

            Dominique Carmichael pled guilty to possession of a

firearm and ammunition by a convicted felon, in violation of 18

U.S.C.A. §§ 922(g)(1), 924(a)(2) (West 2000 & Supp. 2010).                  The

district court designated Carmichael an armed career criminal

and sentenced him to 188 months in prison.              Carmichael appeals,

alleging that the district court erred by sentencing him as an

armed career criminal.        Finding no error, we affirm Carmichael’s

sentence.

            In    the   presentence     report    (“PSR”),     the     probation

officer recommended that Carmichael be sentenced as an armed

career criminal as defined in U.S. Sentencing Guidelines Manual

§ 4B1.4 (2008), finding that Carmichael had at least three prior

convictions for violent felonies, namely three North Carolina

common law robbery convictions, committed on occasions different

from one another.       Carmichael’s guidelines range with the armed

career criminal designation was 180 to 188 months in prison.

            Carmichael    objected     to   the    armed     career     criminal

designation, asserting that he committed only two, not three,

common   law     robberies.     He    admitted    the   common   law    robbery

convictions for crimes committed on November 19, 1997, and March

8, 2001, but he stated he had no recollection of committing the

common law robbery on November 16, 1997.                 The district court

overruled      Carmichael’s   objection,    noting      that   court    records

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identified     him    by    name,   social     security     number,   and    date   of

birth    as    the    person       who   committed     all    three    common       law

robberies.      The court sentenced him to 188 months in prison.

              On appeal, Carmichael first argues that North Carolina

common law robbery does not qualify as a violent felony for

purposes of the Armed Career Criminal Act (“ACCA”).                           Because

Carmichael raises this claim for the first time on appeal, we

review it for plain error.                 Fed. R. Crim. P. 52(b); United

States v. Olano, 

, 732 (1993).

              Under the ACCA, a person convicted under § 922(g)(1)

who   has     three   or    more    convictions      for    violent   felonies      or

serious drug offenses “shall be . . . imprisoned not less than

fifteen years.”            18 U.S.C.A. § 924(e)(1) (West 2000 & Supp.

2010).      A violent felony is defined as

      [A]ny crime punishable by imprisonment                    for   a     term
      exceeding one year, . . . that--

      (i) has as an element the use, attempted use, or
      threatened use of physical force against the person of
      another; or

      (ii) is burglary, arson, or extortion, involves use of
      explosives,   or  otherwise   involves  conduct   that
      presents a serious potential risk of physical injury
      to another.

18 U.S.C.A. § 924(e)(2)(B).              Under North Carolina law, “[c]ommon

law robbery is defined as the felonious, non-consensual taking

of money or personal property from the person or presence of

another by means of violence or fear.”                     State v. Herring, 370


                                           

,    368     (N.C.       1988)   (internal       quotation            marks   and

citation omitted).               Although this offense does not necessarily

have “as an element the use, attempted use, or threatened use of

physical            force        against         the       person           of         another,”

§ 924(e)(2)(B)(i), and is not “burglary, arson, or extortion,

[. . . and           does        not]      involve[]           use     of        explosives,”

§ 924(e)(2)(B)(ii), it qualifies as a violent felony under the

residual         clause     in   § 924(e)(2)(B)(ii),            in   that        it    “involves

conduct      that     presents       a    serious      potential       risk      of    physical

injury to another.”              § 924(e)(2)(B)(ii).

                 In United States v. Jarmon, 

, 230-33 (4th

Cir.), cert. denied, 

(2010), we held that a North

Carolina conviction for larceny from the person was a “crime of

violence” under the federal sentencing guidelines. 1                              “‘[L]arceny

from       the   person      differs      from       [common    law]   robbery          in    that

larceny from the person lacks the requirement that the victim be

put in fear.’”              State v. Carter, 

, 653-54 (N.C.

Ct. App. 2007) (quoting State v. Buckom, 

, 365

       1
       “Because the language defining a violent felony in [18
U.S.C.A.] § 924(e) [of the ACCA] is nearly identical to and
materially indistinguishable from the language defining a crime
of violence in . . . § 4B1.2 [of the federal sentencing
guidelines],” we rely on case law interpreting both provisions
when deciding whether a prior offense qualifies as a “crime of
violence” or “violent felony.”    United States v. Roseboro, 

, 229 n.2 (4th Cir. 2009), abrogated on other grounds by
United States v. Rivers, 

(4th Cir. 2010).



                                                 4
(N.C. 1991)).          “[L]arceny from the person entails less violence

than robbery.”          

.                   Because the “less

violent” offense of larceny from the person is a violent felony

for purposes of the ACCA, we conclude that North Carolina common

law robbery also qualifies as a violent felony. 2

            Carmichael        also     argues         that   the     court    erred   in

sentencing       him     as   an     armed       career      criminal    because      the

Government failed to prove that he had three prior convictions.

To the extent that Carmichael seeks to assert that the district

court    erred    in    sentencing      him      as    an    armed   career    criminal

because the fact of his prior convictions was not charged in the

indictment, admitted by him, or found by a jury, his argument is

foreclosed by United States v. Thompson, 

, 286 (4th

Cir. 2005), and United States v. Cheek, 

, 350 (4th

Cir. 2005).




     2
       Without addressing Jarmon, Carmichael argues that under
the Supreme Court’s recent decision in Johnson v. United States,

(2010), common law robbery does not qualify as a
violent felony because use of physical force is not necessarily
an element of the offense.    However, Carmichael’s reliance on
Johnson is misplaced.    Johnson interpreted § 924(e)(2)(B)(i),
which defines a “violent felony” as one that “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” whereas North Carolina common
law robbery fits within the definition of a violent felony in
the residual clause of § 924(e)(2)(B)(ii), which does not
include as an element the use, attempted use, or threatened use
of force.



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               In the district court, Carmichael did not dispute the

common law robbery convictions for the offenses that occurred on

November 19, 1997, and March 8, 2001, but claimed to have no

recollection of having been convicted of or having committed the

common   law        robbery   that    occurred      on   November   16,    1997.     He

contends that, when he challenged the predicate offenses upon

which    his    armed     career     criminal    designation        was   based,    the

Government was required to provide evidence establishing these

convictions and failed to do so.

               In     response       to    Carmichael’s        objection     to     the

information in the PSR that he had committed all three offenses,

the   probation        officer      stated   that    the    state   superior       court

records identified Carmichael by name, social security number,

and date of birth as the person who committed all three common

law robberies.          Carmichael provided no documentation to support

his   claim     that    he    had    not   committed     the   November    16,     1997,

offense.       As we have explained:

      A mere objection to the finding in the presentence
      report is not sufficient.       The defendant has an
      affirmative   duty  to   make   a   showing   that  the
      information in the presentence report is unreliable,
      and articulate the reasons why the facts contained
      therein are untrue or inaccurate.           Without an
      affirmative showing the information is inaccurate, the
      court is free to adopt the findings of the presentence
      report without more specific inquiry or explanation.
      The burden is on the defendant to show the inaccuracy
      or unreliability of the presentence report.



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United   States      v.   Terry,      

,    162   (4th    Cir.   1990)

(internal quotation marks, alterations, and citations omitted);

see United States v. Randall, 

, 210-11 (4th Cir.

1999).      It was Carmichael’s burden to refute the facts set forth

in the PSR and he failed to do so.

             For these reasons, we conclude that the district court

did   not    clearly      err    in   finding      that     Carmichael     had    three

qualifying     predicate        convictions     to    support      his   armed    career

criminal designation.            Accordingly, we affirm his sentence.                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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