United States v. Dayquan Goodwin ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4550
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAYQUAN ANTOINE GOODWIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Arenda L. Wright Allen, District Judge. (4:19-cr-00016-AWA-RJK-1)
Submitted: May 25, 2021 Decided: May 27, 2021
Before DIAZ and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Laura P. Tayman, LAURA P. TAYMAN, PLLC, Newport News, Virginia, for Appellant.
Raj Parekh, Acting United States Attorney, Peter G. Osyf, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dayquan Antoine Goodwin appeals his conviction and 24-month sentence imposed
following his guilty plea to possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). Goodwin argues that the district court erroneously applied the
sentencing enhancement under U.S. Sentencing Guidelines Manual §§ 2K2.1(a)(4)(A),
4B1.2 (2020), because his prior conviction for violation of Va. Code Ann. § 18.2-248(2013) does not qualify as a predicate controlled substance offense, thereby rendering his
sentence procedurally unreasonable. We affirm.
We review de novo a district court’s determination that a defendant’s prior
conviction constitutes a controlled substance offense for purposes of a sentencing
enhancement. United States v. Ward, 972 F.3d 364, 368 (4th Cir. 2020). Section
2K2.1(a)(4)(A)’s sentencing enhancement applies a base offense level of 20 for a defendant
who is convicted as a felon in possession of a firearm or ammunition if “the defendant
committed any part of the instant offense subsequent to sustaining one felony conviction
of . . . a controlled substance offense.” A “controlled substance offense” under
§ 2K2.1(a)(4)(A) “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; United States v. Mills, 485 F.3d
219, 221 (4th Cir. 2007) (internal quotation marks omitted). Section 4B1.2(b) defines
“controlled substance offense” as:
[A]n offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or dispense.
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USSG § 4B1.2(b) (emphasis added).
“When addressing whether a prior conviction triggers a Guideline sentencing
enhancement, we approach the issue categorically, looking only to the fact of conviction
and the statutory definition of the prior offense.” United States v. Dozier, 848 F.3d 180,
183 (4th Cir. 2017) (internal quotation marks omitted). “This approach is categorical in
that we ask whether the offense of conviction—no matter the defendant’s specific
conduct—necessarily falls within the Guidelines’ description of a ‘controlled substance
offense.’” Ward, 972 F.3d at 368. “This approach is altered for ‘divisible’ statutes, statutes
that ‘list elements in the alternative[ ] and thereby define multiple crimes.’” Dozier, 848
F.3d at 183 (quoting Mathis v. United States, 136 S. Ct. 2243, 2249 (2016)). “In such
circumstances, the sentencing court may apply the modified categorical approach and
consult ‘a limited class of documents’—otherwise known as Shepard documents—‘to
determine what crime, with what elements, a defendant was convicted of.’” Id. (citation
omitted).
Virginia law makes it unlawful “for any person to manufacture, sell, give, distribute,
or possess with intent to manufacture, sell, give or distribute a controlled substance or an
imitation controlled substance.” Va. Code Ann. § 18.2-248A. The statute clarifies that a
person may be convicted of a misdemeanor offense under Va. Code Ann. § 18.2-248F or
a felony offense under Va. Code Ann. § 18.2-248G, depending on Virginia’s classification
of the type of drug being imitated. Va. Code Ann. § 18.2-248F, G. The statute is divisible
because “the identity of the prohibited substance is an element of Virginia Code § 18.2-
248.” Cucalon v. Barr, 958 F.3d 245, 252 (4th Cir. 2020). Applying the modified
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categorical approach, the 2013 indictment shows Goodwin was convicted of a Class 6
felony, an offense under Virginia law punishable by a term of imprisonment exceeding one
year and involving the possession with intent to distribute an imitation controlled
substance. ∗
Goodwin argues that the Virginia definition of an “imitation controlled substance”
was broader than the federal definition of “counterfeit substance” under the Controlled
Substances Act. Compare Va. Code Ann. § 18.2-247B (2013) with 21 U.S.C. § 802(7).
More specifically, he argues that, under the categorical approach, Virginia’s definition of
an “imitation controlled substance” includes substances that appear similar to controlled
substances subject to abuse, and therefore his offense does not categorically qualify as a
“controlled substance offense” under USSG §§ 2K2.1(a)(4)(A), 4B1.2. He suggests that
we overrule United States v. Mills, 485 F.3d 219 (4th Cir. 2007), where we applied the
plain-meaning approach in determining that a conviction under Maryland’s “look-a-like”
statute qualified as a “counterfeit substance” offense. Relying on United States v. Ward,
972 F.3d 364 (4th Cir. 2020), the district court found that Goodwin’s prior imitation
controlled substance conviction under Va. Code Ann. § 18.2-248 was a “controlled
substance offense” under state law, and therefore qualified as a predicate offense under
USSG § 2K2.1(a)(4)(A)’s sentencing enhancement.
∗
A Class 6 felony is punishable by “a term of imprisonment of not less than one
year nor more than five years, or in the discretion of the jury or the court trying the case
without a jury, confinement in jail for not more than 12 months . . . .” Va. Code Ann.
§ 18.2-10(f) (2013). Goodwin’s order of conviction reflects a five-year term of
incarceration suspended, which corresponds to the Class 6 felony under § 18.2-248G.
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In Ward, we held that the plain meaning of USSG § 4B1.2(b) states that a predicate
offense “arises under either federal or state law,” and it is unnecessary to consider whether
the state law definition of a “controlled substance” is analogous to its federal counterpart.
972 F.3d at 371-72. Ward reaffirmed the reasoning in Mills that, when considering whether
a state drug offense categorically qualifies under USSG § 4B1.2, “the ordinary meaning of
‘counterfeit substance’ control[s]: a ‘substance made in imitation of a controlled substance
is a counterfeit substance.’” Id. at 372 (quoting Mills, 485 F.3d at 222 (internal quotation
marks omitted)).
Applying Ward and Mills, we conclude that the district court did not err in finding
that Goodwin’s Virginia conviction for possession of an imitation controlled substance
with intent to distribute, in violation of Va. Code Ann. § 18.2-248A, G, was a controlled
substance offense as defined by USSG §§ 2K2.1(a)(4)(A), 4B1.2. And while Goodwin
invites us to overrule Mills, “it is well-settled that a panel of this court is bound by prior
precedent from other panels in this circuit absent contrary law from an en banc or Supreme
Court decision.” United States v. Seigler, 990 F.3d 331, 336 n. 6 (4th Cir. 2021) (internal
quotation marks omitted). Therefore, the district court did not err in applying the
sentencing enhancement, and we conclude that Goodwin’s sentence is procedurally
reasonable.
Accordingly, we affirm the criminal judgment. 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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