United States v. Michael Dozier , 633 F. App'x 139 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4293
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL ANTONIO DOZIER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Mark S. Davis, District
Judge. (4:14-cr-00079-MSD-TEM-1)
Submitted: January 29, 2016 Decided: February 16, 2016
Before AGEE, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Suzanne V. Katchmar, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Kaitlin Courtney Gratton,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Dozier pled guilty to being a felon in possession
of a firearm. He received an 84-month sentence. On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), raising three claims but asserting that there
are no meritorious grounds for appeal. Although informed of his
right to do so, Dozier has not filed a supplemental brief. The
Government declined to file a response. We affirm.
Counsel first contends that Dozier’s plea was not knowing
and voluntary because the district court did not inquire at the
Fed. R. Crim. P. 11 hearing whether Dozier understood that he
was waiving his right to present evidence and to testify on his
own behalf. See Fed. R. Crim. P. 11(b)(1)(E). Because Dozier
did not move to withdraw his plea, we review this claim for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). Here, we find no plain error, as the district court
substantially complied with Rule 11 when accepting Dozier’s
plea. Given no indication to the contrary, we therefore find
that the plea was knowing and voluntary, and, consequently,
final and binding. See United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992).
Counsel also questions whether the sentence is procedurally
reasonable in two respects. First, counsel claims that Dozier’s
offense level may have been improperly calculated under U.S.
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Sentencing Guidelines Manual § 2K2.1(a)(2) (2014) because one of
the prior drug convictions used to enhance the sentence was for
distributing an imitation controlled substance. Second, counsel
questions an enhancement under USSG § 2K2.1(b)(6)(b) for
possession of a firearm in connection with another felony
offense.
We review a sentence for reasonableness, applying an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 46
(2007). This court first reviews the sentence for significant
procedural error, and if the sentence is free from such error,
it then considers the substantive reasonableness of the
sentence. Id. at 51.
Because Dozier did not object to the use of the imitation
distribution conviction in calculating his sentence, we review
for plain error whether the court procedurally erred in this
regard. United States v. Olano, 507 U.S. 725, 732 (1993);
United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). We
conclude that the district court did not procedurally err in
applying the USSG § 2K2.1(a)(2) enhancement. There was no plain
error in treating distribution of an imitation substance as a
conviction for distribution of a counterfeit substance under the
Guidelines. See United States v. Mills, 485 F.3d 219, 222 (4th
Cir. 2007) (Maryland conviction for possession with intent to
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distribute a look-alike controlled substance qualifies under
USSG § 2K2.1(a)(2) as a counterfeit substance).
Finally, Dozier claims error in receiving a four-level
enhancement for possessing the firearm in connection with
another felony offense—possession with intent to distribute
marijuana. See USSG § 2K2.1(b)(6)(B). Under the Guidelines,
the “in connection with” requirement is satisfied where “in the
case of a drug trafficking offense in which a firearm is found
in close proximity to the drugs, . . . application of [the
enhancement] is warranted because the presence of the firearm
has the potential of facilitating another felony offense. USSG
§ 2K2.1 cmt. n.14(B); see also United States v. Jenkins, 566
F.3d 160, 163 (4th Cir. 2009).
No clear error is apparent from the record. The facts
sufficiently supported that the half ounce of marijuana packaged
in 10 separate small baggies, alongside $350 in cash and a
loaded firearm, both also found on Dozier’s person, was intended
for distribution. Thus, the enhancement under USSG
§ 2K2.1(b)(6)(B) was appropriate.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Dozier’s conviction and sentence.
This court requires that counsel inform Dozier, in writing, of
the right to petition the Supreme Court of the United States for
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further review. If Dozier 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 Dozier. 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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