United States v. Dale Sizemore ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4508
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DALE ALLEN SIZEMORE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:18-cr-00371-CCE-1)
Submitted: December 30, 2021 Decided: January 19, 2022
Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and TRAXLER, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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. Nicole Royer DuPre, Assistant United States Attorney, Sandra Jane Hairston,
Acting 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Unpublished opinions are not binding precedent in this circuit.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:
Dale Allen Sizemore appeals from his convictions and 120-month sentence entered
pursuant to his guilty plea to possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g); and possession of a stolen weapon, in violation of 18 U.S.C. § 922(j).
On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there were no meritorious grounds for appeal but questioning the validity of
Sizemore’s plea. The Government declined to file a brief. Sizemore filed a supplemental
brief, raising numerous challenges. * After a thorough review of the record, we affirm.
I.
Before accepting a guilty plea, the district court must conduct a colloquy in which
it informs the defendant of, and determines that he understands, the nature of the charges
to which he is pleading guilty, any mandatory minimum penalty, the maximum penalty he
faces, and the rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure
that the defendant’s plea is voluntary and supported by an independent factual basis. Fed.
R. Crim. P. 11(b)(2), (3). Because Sizemore did not preserve any error in the plea
proceedings, we review the adequacy of the plea colloquy for plain error. United States v.
*
We previously ordered counsel to file a merits brief addressing the application of
United States v. Gary, 954 F.3d 194 (4th Cir. 2020). However, subsequently, the Supreme
Court reversed our decision in Gary. See Greer v. United States, 141 S. Ct. 2090 (2021).
The parties filed supplemental briefs agreeing that, applying Greer, the district court’s
omission of an element of 18 U.S.C. § 922(g) during the Fed. R. Crim. P. 11 hearing was
not plain error.
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Vonn, 535 U.S. 55, 58-59 (2002); see Henderson v. United States, 568 U.S. 266, 272 (2013)
(describing standard).
Counsel does not point to any specific, potential error in the proceedings. We find
that the district court substantially complied with Rule 11, ensuring that Sizemore’s plea
was knowing, voluntary, and supported by an independent basis in fact. Further, nothing
in the record suggests that, but for any minor omissions, Sizemore would not have pleaded
guilty. See United States v. Aplicano-Oyuela, 792 F.3d 416, 427 (4th Cir. 2015) (noting
that, in Rule 11 context, plain error requires showing that defendant would not have
pleaded guilty but for court’s error). As such, we find that the Rule 11 hearing was proper,
and as such, Sizemore’s guilty plea was valid.
II.
Sizemore’s two prior convictions that formed the basis for his base offense level
were North Carolina felony possession with intent to manufacture, sell, or deliver
methamphetamine and felony possession with intent to manufacture, sell, or deliver
alprazolam, both in violation of NCGS § 90-95. In his pro se brief, Sizemore asserts that
his North Carolina convictions are not “controlled substance offenses” within the definition
of U.S. Sentencing Guidelines Manual § 2K2.1, because (1) the North Carolina statute
criminalizes selling and delivering controlled substances, while the Guidelines define a
controlled substance offense otherwise; and (2) the North Carolina statute’s definition of a
controlled substance is broader than the federal definition, as North Carolina includes
various types of isomers, while the federal definition with regard to methamphetamine
includes “optical isomers” only.
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Sizemore, however, did not object in the district court to its application of USSG
§ 2K2.1(a)(2). Accordingly, his challenge is reviewed for plain error only. United States v.
Hargrove, 625 F.3d 170, 183-84 (4th Cir. 2010). To establish plain error, Sizemore must
show that (1) the district court erred, (2) the error was plain, and (3) the error affected his
substantial rights. Henderson v. United States, 568 U.S. 266, 272 (2013). A “plain” error
is one that is “clear” or “obvious,” United States v. Olano, 507 U.S. 725, 734 (1993), under
“the settled law of the Supreme Court or this circuit.” United States v. Carthorne, 726 F.3d
503, 516 (4th Cir. 2013) (internal quotation marks omitted). In other words, the presence
of the error must be beyond reasonable dispute. United States v. Marcus, 560 U.S. 258,
262 (2010).
Section 2K2.1(a)(2) of the Guidelines provides for the application of a base offense
level of 24 “if the defendant committed any part of the instant offense subsequent to
sustaining at least two felony convictions of either a crime of violence or a controlled
substance offense.” USSG § 2K2.1(a)(2). A “felony conviction” is “a prior adult federal
or state conviction for an offense punishable by death or imprisonment for a term exceeding
one year,” and a “controlled substance offense” has “the meaning given that term in
§ 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2.” USSG § 2K2.1 cmt.
n.1.
Under USSG § 4B1.2(b), a “controlled substance offense” means “an offense under
federal or state law, punishable by imprisonment for a term exceeding one year” that
“prohibits the manufacture, import, distribution, or dispensing of a controlled substance (or
a counterfeit substance) or the possession of a controlled substance (or a counterfeit
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substance) with intent to manufacture, import, export, distribute, or dispense.” USSG
§ 4B1.2(b). Here, the underlying North Carolina offense provides that it is unlawful to
“manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a
controlled substance.” NCGS § 90-95(a)(1). While the elements are not a word-for-word
match, we find that the North Carolina statute is no broader than the generic offense. See
United States v. Dozier, 848 F.3d 180, 187 (4th Cir. 2017) (holding that West Virginia
statute providing that it is unlawful to “manufacture, deliver, or possess with intent to
manufacture or deliver” a controlled substance was a controlled substance offense under
USSG § 4B1.2).
Turning to the issue of the definition of a controlled substance, North Carolina
defines isomers as “structural, geometric, or optical isomers, and stereoisomers.” NCGS
§ 90-87(14a); see also NCGS § 90-95(d)(2) (noting that “controlled substance” includes
methamphetamine and its “isomer[s]”). Federal law similarly prohibits distribution of
methamphetamine and its isomers, but states that the “term ‘isomer’ means the optical
isomer.” 21 U.S.C. § 802(14). Thus, Sizemore contends that the North Carolina definition
of methamphetamine is broader than the federal definition and, as such, his North Carolina
convictions should not have been considered “controlled substance offenses.”
However, “controlled substance” is not a defined term under the Guidelines. We
find that the district court correctly concluded that Sizemore’s convictions for possession
with intent to manufacture, sell, or deliver methamphetamine, and possession with intent
to manufacture, sell, or deliver a Schedule IV controlled substance were controlled
substance offenses. While Sizemore contends that the North Carolina drug schedules
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include drugs that the federal schedules do not and that the term “controlled substance”
must mean the same as it does under federal law, there is no requirement for a match
between the federal and state statutes. Rather, the question is whether the state statute
satisfies the Guideline, which requires only a controlled substance offense, under either
federal or state law. As Sizemore’s prior convictions clearly satisfy this standard, we find
no error, much less plain error.
III.
Finally, Sizemore challenges his § 922(g) conviction under United States v. Smith,
939 F.3d 612 (4th Cir. 2019) (holding that North Carolina guilty plea to larceny followed
by conditional discharge did not constitute a “conviction” for purposes of § 922(g)), and
United States v. McAdory, 935 F.3d 838 (9th Cir. 2019) (holding that prior Washington
convictions were not punishable by imprisonment for term exceeding one year and so could
not serve as § 922(g) predicate felony). We find that these cases are not applicable to
Sizemore.
In 2017, Sizemore was sentenced to 6 to 17 months imprisonment for various
methamphetamine and alprazolam felonies. He was not conditionally discharged, and he
was sentenced to a term that could have exceeded a year in prison on each charge.
Accordingly, this argument is without merit.
IV.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious issues for appeal. Accordingly, we affirm Sizemore’s convictions
and sentence. This court requires that counsel inform Sizemore, in writing, of the right to
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petition the Supreme Court of the United States for further review. If Sizemore requests
that a petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Sizemore. 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.
AFFIRMED
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