United States v. Micah Pritchett ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4003
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICAH G. PRITCHETT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:17-cr-00079-HEH-1)
Submitted: July 26, 2018 Decided: August 1, 2018
Before GREGORY, Chief Judge, DUNCAN, Circuit Judge, and SHEDD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Joseph S. Camden,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Tracy Doherty-McCormick, Acting United States
Attorney, Alexandria, Virginia, Stephen Wiley Miller, Richard D. Cooke, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Micah G. Pritchett appeals his sentence after pleading guilty to possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (2012). On appeal, he contends
the district court erred in finding that his prior convictions for possession of cocaine with
intent to distribute in violation of Va. Code Ann. § 18.2-248 were controlled substance
offenses under U.S. Sentencing Guidelines Manual §§ 2K2.1(a)(2); 4B1.2(b) (2016), and
the district court failed to adequately address his sentencing arguments. We affirm.
We review a criminal sentence under a deferential abuse-of-discretion standard,
looking first to whether the district court committed a significant procedural error such as
improperly calculating the Sentencing Guidelines range or failing to adequately explain
its sentence. Gall v. United States, 552 U.S. 38, 41, 51 (2007); United States v. Fluker,
891 F.3d 541, 547 (4th Cir. 2018). We review the issue of whether a prior conviction
constitutes a controlled substance offense for purposes of a sentencing enhancement de
novo. United States v. Dozier, 848 F.3d 180, 183 (4th Cir. 2017). When a claim of
procedural error is preserved, we “‘must reverse if we find error, unless we can conclude
that the error was harmless.’” United States v. Gomez-Jimenez, 750 F.3d 370, 379 (4th
Cir. 2014) (quoting United States v. Lynn, 592 F.3d 572, 581 (4th Cir. 2010)).
After calculating the Guidelines range, a district court must “give the parties the
opportunity to argue for whatever sentence they deem appropriate and consider those
arguments in light of all of the factors stated in 18 U.S.C. § 3553(a).” United States v.
Blue, 877 F.3d 513, 517-18 (4th Cir. 2017) (internal quotation marks and citations
omitted). The “court must then conduct an ‘individualized assessment’ of the facts and
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arguments presented and impose an appropriate sentence.” Id. at 518 (citation omitted).
It must also “‘adequately explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.’” Id. (citation omitted).
“The adequacy of the sentencing court’s explanation depends on the complexity of
each case.” Id. “On one end of the spectrum, some cases require only a brief explanation
of the sentencing judge’s conclusions, such as when a judge ‘appl[ies] the Guidelines to a
particular case’ because the case is typical and ‘the Guidelines sentence is a proper
sentence (in terms of § 3553(a) and other congressional mandates) in the typical case.’”
Id. (quoting Rita v. United States, 551 U.S. 338, 356-57 (2007)). “On the other end of the
spectrum, in cases where . . . ‘the defendant or prosecutor presents nonfrivolous reasons
for imposing a different sentence’ the judge ‘will normally go further and explain why he
has rejected those arguments.’” Id. at 518-19 (quoting Rita, 551 U.S. at 357).
A “controlled substance offense” under USSG § 2K2.1(a)(2) “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).
Section 4B1.2(b) defines the term as “an 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.” USSG § 4B1.2(b).
“When addressing whether a prior conviction triggers a Guideline sentencing
enhancement, we approach the issue categorically, looking only to the fact of conviction
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and the statutory definition of the prior offense.” Dozier, 848 F.3d at 183 (internal
quotation marks and citations omitted). “The point of the categorical inquiry is not to
determine whether the defendant’s conduct could support a conviction for a [predicate
offense], but to determine whether the defendant was in fact convicted of a crime that
qualifies as a [predicate offense].” Id. (internal quotation marks and citation omitted).
“Accordingly, ‘[t]he categorical approach focuses on the elements of the prior
offense rather than the conduct underlying the conviction.’” Id. (citation omitted). “This
approach is altered for ‘divisible’ statutes, statutes that ‘list elements in the alternative[]
and thereby define multiple crimes.’” Id. (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).
We have reviewed the record and conclude that the district court did not err in
finding that Pritchett’s Virginia convictions for possession of cocaine with intent to
distribute in violation of Va. Code Ann. § 18.2-248 were controlled substance offenses
under USSG §§ 2K2.1(a)(2); 4B1.2(b). See Dozier, 848 F.3d at 187-88; Mills, 485 F.3d
at 224; cf. Hernandez-Nolasco v. Lynch, 807 F.3d 95, 96, 98 (4th Cir. 2015) (holding that
conviction for possession with intent to distribute cocaine under Va. Code § 18.2-248
was aggravated felony under the Immigration and Nationality Act). We further conclude
the district court adequately addressed and considered Pritchett’s sentencing arguments.
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Accordingly, we affirm the district court’s judgment. 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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