Petition for Writ of Certiorari — Lawrence Rehmeil Anderson, Petitioner v. United States

No. 26In the

Supreme Court of the United States

LAWRENCE REHMEIL ANDERSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Charles R. Brewer

Counsel of Record

79 Woodfin Place, Suite 211

Asheville, NC 28801

(828) 251-5002

crboffice@aol.com

Counsel for Petitioner

395477

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

I.

Whether petitioner's Fifth and Sixth Amendment rights to a jury verdict were

denied when the court and not a jury determined that his prior convictions were on

separate occasions thus subjecting him to the enhanced penalties of the Armed

Career Criminal Act.

II.

Whether North Carolina's breaking or entering convictions should qualify as

predicate convictions under the Armed Career Criminal Act.

III.

Whether 18 U.S.C. §922(g)(1) is a violation of the Second Amendment to the

United States Constitution both facially and as applied to petitioner in view of the

Supreme Court ruling in New York State Rifle & Pistol Association, Inc., v. Bruen.

i

PARTIES TO THE PROCEEDINGS

The petitioner (defendant-appellant below) is Lawrence Rehmeil Anderson.

The respondent (the plaintiff-appellee below) is United States of America.

RELATED PROCEEDINGS

Criminal Judgment and direct appeal

Criminal Court for the Middle District of North Carolina:

United States of America v. Lawrence Rehmeil Anderson, No. 1:20-cr-00416-WO-1,

United States

District Court for the Middle District of North Carolina, Greensboro

Judgment entered January 9, 2023

Fourth Circuit Court of Appeals:

United States of America v. Lawrence Rehmeil Anderson, No. 23-4096, judgment

entered May 12, 2026

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS ............................................................................ ii

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF APPENDICES ............................................................................................ v

TABLE OF CITED AUTHORITIES ............................................................................ vi

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

RELEVANT CONSTITUTIONAL PROVISIONS ........................................................ 1

STATUTORY PROVISIONS INVOLVED .................................................................... 2

INTRODUCTION .......................................................................................................... 3

STATEMENT ................................................................................................................. 4

I.

Factual background ....................................................................................... 4

II.

Middle District of North Carolina Proceedings ............................................ 5

III.

Fourth Circuit Court of Appeals Proceedings .............................................. 6

REASONS FOR GRANTING THE PETITION ............................................................ 8

I.

The question presented is important, and this case is an excellent

vehicle for resolving it ................................................................................... 8

A.

Petitioner's Fifth and Sixth Amendment rights to a jury

verdict were denied when the court and not a jury

determined that his prior convictions were on separate

occasions thus subjecting him to the enhanced penalties of

the Armed Career Criminal Act ......................................................... 9

iii

II.

B.

North Carolina's Breaking or Entering convictions should not

qualify as predicate convictions under the Armed Career

Criminal Act ...................................................................................... 11

C.

18 U.S.C. Section 922(g)(1) is a violation of the Second

Amendment to the United States Constitution both facially

and applied to petitioner in view of the Supreme Court ruling

in New York State Rifle and Pistol Association, Inc., v. Bruen ....... 15

The Fourth Circuit's decision is wrong ....................................................... 18

CONCLUSION............................................................................................................. 19

iv

TABLE OF APPENDICES

Page

APPENDIX A—OPINION OF THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT FILED MAY 12, 2026 ......................................... 1a

APPENDIX B—JUDGMENT OF THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA FILED

FEBRUARY 17, 2023 ............................................................................................. 7a

v

TABLE OF CITED AUTHORITIES

Page(s)

Cases:

Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ......................................... 10

Chapman v. California,

386 U.S. 18 (1967) .................................................................................................. 10

Descamps v. United States,

570 U.S. 154 (2013) ................................................................................................ 14

Erlinger v. United States,

144 S.Ct. 1840 (2024) .................................................................................... 9-11, 18

Greer v. United States,

938 F.3d 766 (6th Cir. 2019) ................................................................................... 13

Mathis v. United States,

579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed. 2d 604 (2016) ................................... 11-14

New York State Rifle & Pistol Association, Inc., v. Bruen,

597 U.S. 1 (2022) ............................................................................... 3, 4, 7, 8, 15-18

Range v. Attorney Gen. United States,

124 F.4th 218 (3rd Cir. 2024) ................................................................................. 17

Shepard v. United States,

544 U.S. 13 (2005) .................................................................................................. 14

State v. Jones,

157 SE2d 610 (N.C. 1967) ...................................................................................... 14

State v. Myrick,

291 SE2d 577 (N.C. 1982) ...................................................................................... 14

Taylor v. United States,

495 U.S. 575 (1990) ........................................................................................... 11-14

United States v. Brown,

136 F.4th 87 (4th Cir. 2025) ................................................................................ 9, 11

United States v. Canada,

123 F.4th 159 (4th Cir. 2024) .................................................................................... 4

vi

United States v. Cockerham,

162 F.4th 500 (5th Cir. 2025) .................................................................................. 17

United States v. Dodge,

963 F.3d 379 (4th Cir. 2020) ..................................................................................... 3

United States v. Evans,

924 F.3d 21 (2nd Cir. 2019) ..................................................................................... 14

United States v. Hunt,

123 F.4th 697 (4th Cir. 2024) .............................................................................. 4, 16

United States v. Jones,

951 F.3d 1138 (9th Cir. 2019) ........................................................................... 12, 14

United States v. Livingston,

442 F.3d 1082 (8th Cir. 2006) ................................................................................. 14

United States v. Martinez,

954 F.2d 1040 (5th Cir. 1992) ................................................................................. 14

United States v. Montgomery,

974 F.3d 587 (5th Cir. 2020) ................................................................................... 13

United States v. Mungro,

754 F.3d 267 (4th Cir. 2014) ..................................................................................... 3

United States v. Rahimi,

602 U.S. 680, 144 S. Ct. 1889 (2024) ............................................................... 16, 17

United States v. Runyon,

994 F.3d 192 (4th Cir. 2021) ..................................................................................... 4

United States v. Sims,

933 F.3d 1009 (8th Cir. 2019) ................................................................................. 13

United States v. Smith,

645 F.3d 998 (8th Cir. 2011) ................................................................................... 14

United States v. Stitt,

139 S. Ct. 399 (2018) ......................................................................................... 11-14

United States v. Strahl,

958 F.2d 980 (10th Cir. 1992) ................................................................................. 14

United States v. Thomas,

2 F.3d 79 (4th Cir. 1993) ......................................................................................... 14

vii

United States v. Williams,

113 F.4th 637 (6th Cir. 2024) ................................................................................... 17

Van Cannon v. United States,

890 F.3d 656 (7th Cir. 2018) ................................................................................... 14

Wooden v. United States,

142 S. Ct. 1063 (March 7, 2022) ....................................................... 3, 5, 8, 9, 10, 11

Constitutional Provisions:

U.S. Const. amend. II .......................................................................... 2, 3, 8, 15, 16, 17

U.S. Const. amend. V ........................................................................ 1, 3, 6, 9-11, 13, 14

U.S. Const. amend. VI ........................................................................... 1, 3, 6, 9, 10, 11

Statutes and Rules:

18 U.S.C. § 922(g)(1) .................................................................................... 3-5, 7, 15-17

18 U.S.C. § 924(e)(1) ...................................................................................................... 5

18 U.S.C. § 924(e)(2)(B) ................................................................................................. 2

28 U.S.C. § 1254(1) ........................................................................................................ 1

Fed. R.Civ. P. 52(a) ...................................................................................................... 10

N.C. Gen. Stat. § 14-54 (2013) ....................................................................................... 2

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Lawrence Rehmeil Anderson respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of Appeals for the

Fourth Circuit.

OPINIONS BELOW

The Fourth Circuit's order, Pet. App. 1a, is unpublished. The judgment in a

criminal case of the United States District Court for the Middle District of North

Carolina, Pet. App. , 7a, is not published.

JURISDICTION

The Fourth Circuit entered judgment on May 12, 2026. Pet. App. 1a. No

petition for rehearing was filed. This Court has jurisdiction under 28 U.S.C.

§1254(1).

RELEVANT CONSTITUTIONAL PROVISIONS

A. The Fifth Amendment to the Constitution of the United States provides in

relevant part:

No person...shall be deprived of life, liberty, or property, without due process

of law.

B.

The Sixth Amendment to the United States Constitution provides, in

relevant part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial...

1

C. The Second Amendment to the United States Constitution provides:

A well regulated Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be infringed.

STATUTORY PROVISIONS INVOLVED

A. 18 U.S.C. §924(e)(2)(B)(2006) provides in relevant part, that a “violent

felony” under the Armed Career Criminal Act is: Any 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.

B. North Carolina General Statute Section 14-54(2013) defines breaking or

entering as follows: (a) Any person who breaks and enters any building with intent

to commit any felony or larceny therein shall be punished as a Class H felon. (a1) Any

person who breaks or enters any building with intent to terrorize or injure an

occupant of the building is guilty of a Class H felony. (b) any person who wrongfully

breaks or enters any building is guilty of a Class 1 misdemeanor. (c) As used in this

section, building shall be construed to include any dwelling, dwelling house,

uninhabited house, building under construction, building within the curtilege of a

dwelling house, and any other structure designed to house or secure within it any

activity or property.

2

INTRODUCTION

In this case the petitioner's Fifth and Sixth Amendment rights to a jury verdict

were denied when the court and not a jury determined that his prior convictions were

on separate occasions, thus subjecting him to the enhanced penalties of the Armed

Career Criminal Act. The district court when faced with this Court's decision in

Wooden v. United States, 142 S. Ct. 1063 (March 7, 2022) decided that if a trial judge

ruled that the occasions were different without the consideration of a jury the

consequential error would be reviewed for harmlessness. There is no question in this

case that the trial court violated Wooden.; however, it is the decision of the Fourth

Circuit that said error could be reviewed for harmlessness which is the subject of this

petition.

Secondly, this petition raises the issue of whether North Carolina's Breaking

or Entering convictions qualify as predicate convictions under the Armed Career

Criminal Act. This issue was raised before the Fourth Circuit, and the Fourth Circuit

decided that the issue had been foreclosed by its decisions in United States v. Dodge,

963 F.3d 379, 384-85 (4th Cir. 2020) and United States v. Mungro, 754 F.3d 267, 272

(4th Cir. 2014). This petition raises the issue of whether the Fourth Circuit's decision

in that regard is correct and advances the argument that the North Carolina statute

does not qualify as a predicate conviction under the Armed Career Criminal Act.

Finally, this petition raises the issue of whether 18 U.S.C. Section 922(g)(1)

violates of the Second Amendment of the United States Constitution both facially and

as applied to the petitioner in view of the Supreme Court ruling in New York State

3

Rifle & Pistol Association, Inc., v. Bruen, 597 U.S. 1 (2022). Cases were cited to the

Fourth Circuit by the petitioner from the Third Circuit and the Ninth Circuit

suggesting that the constitutional efficacy of 18 U.S.C. Section 922(g)(1) is in question

in light of Bruen. The Fourth Circuit rejected that contention relying on circuit

precedent in United States v. Hunt, 123 F.4th 697 (4th Cir. 2024) and United States v.

Canada, 123 F.4th 159 (4th Cir. 2024). The Fourth Circuit ruled that those cases are

binding on this panel in that one panel cannot overrule the other according to United

States v. Runyon, 994 F.3d 192, 201 (4th Cir. 2021). This petition thus raises the

conflict among the circuits in regard to Bruen's affect on the constitutionality of the

Armed Career Criminal Act provision and asserts that the Court should resolve this

conflict among the circuits.

STATEMENT

I.

Factual background.

On February 24, 2015, petitioner was convicted of two counts of Felony

Breaking or Entering in Edgecombe County, North Carolina. On June 4, 2015 he was

convicted of two counts of Felony Breaking or Entering in Nash County, North

Carolina. On June 5, 2020, US Marshals went to his residence in Orange County,

North Carolina to arrest petitioner; and an occupant of that residence said petitioner

was not there but gave the officers permission to search the residence for him. He

was found hiding in the residence, and the firearm was found near him.

Consequently, he was charged federally in a single count bill of indictment based on

4

that possession with being a felon in possession of a firearm in the Middle District of

North Carolina (United States v. Lawrence Rehmeil Anderson, 1:20CR416).

II. Middle District of North Carolina Proceedings.

A one count bill of indictment was returned by the grand jury for the Middle

District of North Carolina on September 28, 2020, which charged petitioner with

knowingly possessing a firearm after having three previous convictions for a violent

felony or serious drug event, or both, committed on occasions different from one

another, and each conviction being for a crime punishable by imprisonment for a term

exceeding one year in violation of 18 United States Code, Sections 922(g)(1) and

924(e)(1).

The petitioner entered into a plea agreement to plead guilty to the

indictment on February 9, 2021. The government filed a factual basis document on

February 10, 2021. A presentence investigation report was filed on August 23, 2021.

A sentencing hearing was conducted on October 20, 2021, and the trial court entered

its judgment on December 13, 2021, sentencing the petitioner to 192 months

imprisonment based on enhanced sentencing for his prior record pursuant to the

Armed Career Criminal Act.

Petitioner filed his notice of appeal to the Fourth Circuit on December 21, 2021.

4COA#21-4712.

On May 31, 2022, the Fourth Circuit, based on a joint motion to

remand in light of this Court's decision in Wooden v. United States, 142 S.Ct. 1063

(2022), remanded the case to the Middle District of North Carolina. Wooden was

decided on March 7, 2022, and held that defendant's ten convictions of breaking and

5

entering into ten storage units in the same facility on the same night only constitute

a single occasion rather than ten occasions.

The probation office in preparation for

the resentencing hearing in the case which is the subject of this petition, opined that

it appeared that petitioner's offenses occurred on separate occasions and thus the

requirements of the Armed Career Criminal Act were met. Both the government and

petitioner disagreed with the probation office and asserted that the decision as to

whether the predicate felonies occurred on separate occasions was a jury issue and

not a judge's decision.

Moreover, petitioner further maintained that his North

Carolina breaking or entering convictions are not adequate predicate convictions

under the Armed Career Criminal Act. A resentencing hearing was held on January

9, 2023. The trial court disagreed with both the government and petitioner as to

whether a jury had to decide the occasions issue, and the court decided that the prior

convictions qualified as predicates.

Petitioner was sentenced to 184 months of

imprisonment—still based on the enhancements due to his prior record. On February

21, 2023, he again appealed to the Fourth Circuit in Record No. 23-4096.

III. Fourth Circuit Court of Appeals proceedings below.

Petitioner appealed his conviction to the Fourth Circuit Court of Appeals for

the second time on February 21, 2023. United States v. Lawrence Rehmeil Anderson,

4th Circuit Case No. 23-4096. In his appeal he raised three issues to wit: (a) whether

his Fifth and Sixth Amendments rights to a jury verdict were denied when the court

and not a jury determined that his prior convictions were on separate occasions thus

6

subjecting him to the enhanced penalties of the Armed Career Criminal Act (b)

whether North Carolina's felony Breaking or Entering convictions qualify as

predicate convictions under the Armed Career Criminal Act and (c) whether 18 U.S.C.

Section 922(g)(1) is unconstitutional, both facially and applied to petitioner in light

of Supreme Court decision in New York State Rifle & Pistol Association, Inc., v. Bruen,

597 U.S. 1 (2022). The Fourth Circuit entered its unpublished opinion on May 12,

2026, rejecting each of these bases of the appeal.

7

REASONS FOR GRANTING PETITION

This case readily merits the Court's review. The questions presented are

plainly important and at least the issue of North Carolina's breaking or entering

statute being a non violent crime is frequently recurring, and this case provides an

ideal vehicle for the Court to address them. Moreover, the order of the Fourth Circuit

which forms the basis of this petition is wrong and should be righted to protect

petitioner's rights under the Constitution. The petition should be granted.

I.

The question presented is important, and this case is an excellent

vehicle for resolving it.

The questions presented here are exceptionally important, and this case

provides an excellent vehicle for the Court's review. This petition is unique in that it

not only raises the issue of whether North Carolina's breaking or entering convictions

qualify as predicate convictions under the Armed Career Criminal Act, but it also

raises the issue of whether violations of Wooden's requirement for jury determination

of separate occasions concerning enhanced

penalties under the Armed Career

Criminal Act are subject to harmless error review. It also raises the issue under

Bruen of whether the Second Amendment allows prohibition of guns for defendants

whose prior felonies are non violent. This unique combination makes this case

particularly important and makes it a unique vehicle to decide these pressing issues.

8

A.

Petitioner's Fifth and Sixth Amendment rights to a jury verdict

were denied when the court and not a jury determined that his

prior convictions were on separate occasions thus subjecting

him to the enhanced penalties of the Armed Career Criminal

Act.

Petitioner's original appeal to the Fourth Circuit (USCA Case No. 21-4712) was

pending before the Fourth Circuit when this Court decided Wooden v. United States,

142 S. Ct. 1063 (March 7, 2022). On May 31, 2022, the Fourth Circuit, based on a

joint motion to remand in light of Wooden, remanded the case to the Middle District

of North Carolina.

Wooden held that the occasions language of the Armed Career Criminal Acts

significant sentence would not apply to offenses committed on a single occasion.

Further, this Court had ruled in 2024 that criminals are entitled “to have a jury

resolve ACCA's occasions inquiry unanimously and beyond a reasonable doubt”.

Erlinger v. United States, 144 S.Ct. 1840, 1852 (2024). Consequently, when the case

was remanded to the district court both the government and petitioner urged the

district court to submit the decision as to whether the predicate felonies occurred on

separate occasions to a jury for determination. The district court rejected this request

and decided his prior convictions qualified as predicates.

This decision by the district court was appealed to the Fourth Circuit on

February 21, 2023. In that appeal the Fourth Circuit decided that if a trial judge

ruled that the occasions were different without the consideration of a jury that the

error would be reviewed for harmlessness relying on its precedent in United States v.

Brown, 136 F.4th 87, 92-96 (4th Cir. 2025). United States v. Anderson, 4th Circuit Case

No. 23-4096 (May 12, 2026). In Erlinger both Chief Justice Roberts and Justice

9

Kavanaugh suggested harmless error review would be permissible. Justice

Kavanaugh, in his dissent at p. 1867: “I would hold that any Sixth Amendment error

in this case was harmless.” Chief Justice Roberts, in his concurring opinion at p. 1860:

“A defendant is entitled to have a jury determine beyond a reasonable doubt whether

his predicate offenses were committed on different occasions for purposes of the

Armed Career Criminal Act. But as Justice KAVANAUGH explains, violations of that

right are subject to harmless error review.”

Chapman v. California, 386 U.S. 18, 22 (1967) held “that there may be some

constitutional errors within the setting of a particular case that are so unimportant

and insignificant that they may, consistent with the Federal Constitution be deemed

harmless, not requiring the automatic reversal of the conviction.” (Emphasis added).

The Erlinger court, however, found Fifth and Sixth Amendments require a

unanimous jury to make the determination beyond a reasonable doubt that a

defendant's prior offenses were committed on separate occasions. Erlinger, relying,

in part, on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), noted at page 1860 that “the right to a jury trial 'has always been' an

important part of what keeps this Nation 'free'...because the Fifth and Sixth

Amendments do not tolerate the denial of that right in this case”. Erlinger also cites

Wooden.

Rule 52(a) of the Federal Rules of Criminal Procedure defines harmless error

as “(a)ny error, effect, irregularity or variant that does not affect substantial rights

must be disregarded.” In view of the language of Rule 52(a) and the opinion in

10

Erlinger, it is not reasonable to say that this denial of jury determination is an

unsubstantial right.

The district court herein entered its amended judgment on February 17, 2023,

following its resentencing hearing. Consequently, it ruled with the benefit of the

Wooden decision. Since a Wooden violation is not a structural error, its violation may

be reviewed for harmlessness. However, the Fourth Circuit decided this appeal on

May 12, 2026, with the full benefit of the Erlinger decision. The Fourth Circuit

determined that an Erlinger error is subject to harmless error review relying on its

precedent in United States v. Brown, 136 F.4th 87, 92-96 (4th Cir. 2025). United States

v. Anderson, 4th Circuit Case No. 23-4096 (May 12, 2026). It is the contention of the

petitioner that the Erlinger error is a substantial constitutional right in that it is a

right to a trial by jury guaranteed to him by the Fifth and Sixth Amendments to the

United States Constitution and should not be subject to harmless error review.

B.

North Carolina's Breaking or Entering convictions should not

qualify as predicate convictions under the Armed Career

Criminal Act.

It is the contention of the petitioner that the Fourth Circuit in this case is

wrong in that it is inconsistent with this Court's decisions in Taylor v. United States,

495 U.S. 575 (1990); Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.

2d 604 (2016), and United States v. Stitt, 139 S. Ct. 399 (2018) in that it considers as

a violent felony North Carolina's Breaking or Entering statute that includes breaking

into structures and vehicles which house property and not people. In Stitt this Court

made it clear that it is important where an offense takes place in deciding whether it

11

qualifies as a generic burglary under the Armed Career Criminal Act. Stitt

determined that the Congress viewed burglary as an “inherently dangerous crime” in

that “it creates the possibility of a violent confrontation between the offender and an

occupant, caretaker, or some other person who comes to investigate.” Stitt, 139 S. Ct.

at 406 which quotes from this Court's decision in Taylor v. United States, 495 U.S.

575, 588 (1990). Thus, the burglary is violent because of its potential for a violent

confrontation. Stitt at 403-404, 406. Likewise, the statutes reviewed in Mathis and

Taylor did not qualify as predicates because those statutes did not have the risk of

violent confrontation. Thus, it is the fact that the North Carolina Breaking or

Entering statute involves structures that do not house people and therefore do not

risk violent confrontation that cause it to be inconsistent with the federal statute's

requirement that the predicate statute must have “as an element the use, attempted

use, or threatened use of physical force against the person of another” or is a burglary

which “involves conduct that presents a serious potential risk of physical injury to

another”.

Thus, the Fourth Circuit in this case ignored the holdings of this Court as

outlined above and in cases both before and after Stitt in sister circuits. See, United

States v. Jones, 951 F.3d 1138 (9th Cir. 2019) which determined that Colorado's

second degree burglary of a dwelling was a predicate offense under the Armed Career

Criminal Act in that it “cover[ed] only conduct within the generic offense of burglary

as defined by the Supreme Court in Stitt.” Jones, 951 F.3d at 1141. The Colorado

statute only involved buildings used for habitation. In contrast, the North Carolina

12

statute included breaking or entering into a building which could be used “'for the

storage or safekeeping' of property.” This definition of the building which could

include a facility merely for the storage of property was overly broad and violates

Stitt, 139 S. Ct. at 406. Similar decisions of other circuits include Greer v. United

States, 938 F.3d 766 (6th Cir. 2019) which held that the Ohio aggravated burglary

statute was consistent with the generic definition of burglary in that it required a

person to be present or to be likely to be present in the structure. Greer relied on

Stitt, Mathis and Taylor in noting that the Ohio burglary statute was applicable “only

to habitations 'in which at the time any person is present or likely to be present,'”.

Greer v. United States , 938 F.3d at 777. A similar conclusion also relying on Stitt,

was reached in the Eighth Circuit in United States v. Sims, 933 F.3d 1009 (8th Cir.

2019) in regard to the Arkansas burglary statute. On remand the Eighth Circuit

concluded that the burglary statute in Arkansas would be an appropriate predicate

offense in that it applied only to vehicles “in which someone lives or that are

customarily used for an overnight accommodation”. Therefore, it addressed the risk

of violence which Congress was concerned with when it passed the Armed Career

Criminal Act. Sims, 933 F.3d at 1015. Finally, the Fifth Circuit upheld a Louisiana

simple burglary statute as being an appropriate predicate violent felony in United

States v. Montgomery, 974 F. 3d 587 (5th Cir. 2020) in that the statute targeted

offenses where there was a potential for violent confrontation between an offender

and the occupant. Montgomery relied on Taylor. The Fourth Circuit's failure to focus

on Stitt's requirement that a predicate statute must focus “upon circumstances where

13

burglary is likely to present a serious risk of violence.” Stitt, 139 S. Ct. at 407, violates

this Court's decisions in Stitt, Taylor and Mathis.

Finally, North Carolina's statute does not require an entry which is an

essential component of generic burglary. In Mathis, 136 S. Ct. at 2248 this Court

concluded that generic burglary involves the “unlawful or unprivileged entry into...a

building or other structure with intent to commit a crime.” Mathis was relying on

Taylor. See also Shepard v. United States, 544 U.S. 13, 17 (2005). Further, this Court

has heretofore required an entry in order for it to be a generic burglary. A statute

must require entry in order to be a generic burglary. See Descamps v. United States,

570 U.S. 154, 277 (2013). North Carolina's breaking or entering statute merely

requires breaking or entering, therefore it can be violated by breaking alone. See,

State v. Myrick, 291 SE 2d 577 (N.C. 1982) and State v. Jones, 157 SE2d 610 (N.C.

1967). Further, the Eighth Circuit declared that the Arkansas statute for breaking

or entering a vehicle for purposes of committing theft under Arkansas law is not a

violent felony under the Armed Career Criminal Act. United States v. Livingston, 442

F.3d 1082, 1087 (8th Cir. 2006). Further, Court of Appeal in the Second, Fourth, Fifth,

Seventh, Eighth and Tenth upheld statutes criminalizing attempted burglary do not

qualify as enumerated burglary. See, United States v. Evans, 924 F.3d 21 (2nd Cir.

2019); United States v. Thomas, 2 F.3d 79 (4th Cir. 1993); United States v. Martinez,

954 F.2d 1040 (5th Cir. 1992), Van Cannon v. United States, 890 F.3d 656 (7th Cir.

2018); United States v. Smith, 645 F.3d 998 (8th Cir. 2011); and United States v.

Strahl, 958 F.2d 980 (10th Cir. 1992).

14

Therefore, since attempted burglary does not qualify under the Armed Career

Criminal Act as a violent felony and since North Carolina's statute allows a conviction

for conduct which is the same as a generic attempted burglary, North Carolina's

breaking or entering statute cannot be a predicate violent felony under the Armed

Career Criminal Act.

C.

18 U.S.C. Section 922(g)(1) is a violation of

the Second

Amendment to the United States Constitution both facially and

applied to petitioner in view of the Supreme Court ruling in New

York State Rifle and Pistol Association, Inc., v. Bruen.

In the previous argument petition maintains that North Carolina's breaking

or entering statute is a non violent felony. This argument is grounded on the success

of that argument. It is, therefore, the contention of this argument that petitioner's

convictions of the nonviolent crime of violating North Carolina's breaking or entering

statute would not prohibit his possession of a firearm pursuant to this Court's ruling

in New York State Rifle & Pistol Assn, Inc., v. Bruen, 597 US 1, 142 S. Ct. 2111 (2022).

The Court held in Bruen that “(t)he constitutional right to bear arms in public for self

defense is not 'a second-class right, subject to an entirely different body of rules than

the other Bill of Right guarantees.' McDonald, 561 U.S. at 780, 130 S. Ct. 3020”.

Under Bruen a defendant need not prove some special need to possess the weapon in

order to carry it in public for self defense. Individuals possess any ordinary self

defense need and therefore they exercise their right to keep and bear arms. Bruen,

142 S. Ct. 2156.

15

It appears that there is unanimous consent among the federal circuits that 18

U.S.C. §922(g)(1) is facially valid when its purpose is to disarm violent felons under

the holding of United States v. Rahimi, 602 U.S. 680 (2024), 144 S. Ct. 1889 (2024).

However, if the underlying felonies are non violent (as petitioner contends in the

preceding argument his prior convictions to have been) there is a split among the

circuits as to whether such a conviction can lawfully prevent an individual from

possessing a firearm under the Second Amendment. In the 2nd, 4th, 8th, 9th , 10th and

11th circuits the fact that the predicate is non violent is irrelevant; however, in the

3rd, 5th, and 6th circuits there is a cognizable challenge to non violent prior convictions

being an adequate predicate for the crime of being a felon in possession of a firearm.

The circuits are split on whether the government can permanently disarm a citizen

whose prior convictions are non violent felony convictions. The split resulted from the

circuits' respective views of Bruen. Of course, in the case now before this Court, the

Fourth Circuit sided with those circuits holding that the nature of the prior felonies

is irrelevant. United States v. Hunt, 123 F.4th 697, 703-04 (4th Cir. 2024). The Fourth

Circuit found no Bruen violation citing Hunt and noting that Hunt was binding circuit

precedent and made no further response to petitioner's second amendment claim. The

split in the circuits involved en banc rulings on both sides. If the reasoning in the 3rd,

5th, and 6th circuits prevails, petitioner cannot be guilty of being a felon in possession

of a firearm under the Second Amendment as interpreted in Bruen. The 1st and 7th

circuits have yet to determine whether non violent felonies can be the basis for a

charge of being a felon in possession of a firearm.

16

In United States v. Williams, 113 F.4th 637 (6th Cir. 2024) a panel relying on

Bruen and Rahimi concluded that the government can under the Second Amendment

punish a dangerous felon for possessing a firearm. It leaves for further decision,

however, whether individuals convicted of “crimes that pose no threat of physical

danger” can, consistent with the Second Amendment, be barred from possessing

firearms. It seems probable that the 6th Circuit will conclude that governments

cannot; however, it is not definite. The 5th Circuit in United States v. Cockerham, 162

F. 4th 500 (5th Cir. 2025), relying on decisions from the 6th Circuit (Williams) and the

en banc decision of Range v. Attorney Gen. United States, 124 F 4th 218, 230-32 (3rd

Cir. 2024) (en banc) takes the position that a non violent felon cannot be prohibited

from possessing a firearm. In Cockerham the defendant's prior conviction was failure

to pay child support, and therefore his conviction under 18 U.S.C. §922(g)(1) violates

the Second Amendment. Cockerham, 162 F.4th at 510. In an en banc decision of the

3rd Circuit in which defendant raised a claim that his 18 U.S.C. §922(g)(1) conviction

violates his Second Amendment right to keep and bear arms, the court concluded that

“the Government did not carry its burden of showing that the principles underlying

our Nation's history and traditions of firearm regulation support disarming Range”.

Range, 124 F. 4th at 222. Range's prior conviction was for making a false statement.

However, it is the statement made at the conclusion of the decision which should most

bear on this Court. “The Supreme Court had the opportunity to take up Range I and

instead remanded, resurrecting a circuit split and a power of uncertainty. The sooner

it provides clarity, the safer our republic will be.” Range, 124 F. 4th at 285. Apparently

17

this Court has not resolved the entrenched split among the circuits and has denied

most, if not all, of the pending petitions for certiorari to address this issue. This Court

should do so now.

II.

The Fourth Circuit's decision is wrong.

The Fourth Circuit's decision unceremoniously rejects the Bruen claim citing

binding circuit precedent. However, the Bruen claim is meritorious as set forth above

and deserves an independent decision. Secondly the Fourth Circuit decision as to

whether petitioner's prior North Carolina convictions for breaking or entering qualify

as violent felonies was likewise foreclosed by binding circuit precedent. The issue

deserves an independent determination for the reasons set forth in the argument

above. Finally, the Fourth Circuit was wrong in determining that the violation of

Erlinger by the district court is subject to harmless error review. That conclusion

likewise is erroneous for the reasons set forth above. This Court should correct the

erroneous decision of the Fourth Circuit in this petition.

18

CONCLUSION

For these reasons, the petition should be granted.

Respectfully submitted,

s/Charles R. Brewer

Charles R. Brewer

Attorney for Petitioner

79 Woodfin Place, Suite 211

Asheville, NC 28801

828-251-5002

crboffice@aol.com

Counsel for Petitioner

19

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT, DATED MAY 12, 2026 . . . 1a

APPENDIX B — JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH

CAROLINA, DATED FEBRUARY 17, 2023 . . . . . . . . . . . . . . . . . . . . . . 7a

1a

2a

3a

4a

5a

6a

7a

8a

9a

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