United States v. Larry Carter, Jr. ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4950
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY EDWARD CARTER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. David C. Norton, District Judge. (2:18-cr-00257-DCN-1)
Submitted: March 31, 2021 Decided: April 22, 2021
Before MOTZ, FLOYD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeremy A. Thompson, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Peter M. McCoy, Jr.,
United States Attorney, Nathan S. Williams, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Edward Carter, Jr., appeals the 151-month sentence imposed following his
guilty plea to possession with intent to distribute a quantity of heroin, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C). The district court sentenced Carter as a career offender
based on a prior South Carolina conviction for distribution of crack cocaine in proximity
of a school, in violation of S.C. Code Ann. § 44-53-445 (2000), and a federal conviction
for possession of a firearm in furtherance of a drug trafficking crime. On appeal, Carter
contends that the court erred in sentencing him as a career offender because his South
Carolina conviction does not categorically qualify as a controlled substance offense. We
affirm.
We review de novo the district court’s determination that Carter’s prior conviction
qualifies as a controlled substance offense under the Sentencing Guidelines. See United
States v. Allen, 909 F.3d 671, 674 (4th Cir. 2018). “Generally, we use the categorical
approach when assessing whether a state crime constitutes a . . . controlled substance
offense under the Guidelines.” United States v. Furlow, 928 F.3d 311, 318 (4th Cir. 2019)
(internal quotation marks omitted), vacated on other grounds, 140 S. Ct. 2824 (2020).
Under this method, we examine the elements of the defendant’s prior offenses—rather than
the facts underlying the conviction or the defendant’s actual conduct—to determine
whether they correspond with the elements of the generic predicate. Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016). In certain limited circumstances, however, we may
modify the categorical approach to determine whether a prior conviction serves as a
predicate for enhancement. Id. at 2249. Under this modified categorical approach, “when
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a state statute is divisible (i.e., specifies elements in the alternative, thereby defining
multiple offenses),” Furlow, 928 F.3d at 318, a court may examine certain court records or
documents to determine which version of the crime a defendant was convicted of
committing, United States v. McLeod, 808 F.3d 972, 975 (4th Cir. 2015).
Carter contends that S.C. Code Ann. § 44-53-445 is indivisible and that, because the
statute is overbroad, his prior conviction is not a controlled substance offense for purposes
of U.S. Sentencing Guidelines Manual §§ 4B1.1(a), 4B1.2(b) (2018). However, we have
previously explained that S.C. Code Ann. § 44-53-445 “set[s] forth alternative elements
constituting separate crimes” and, therefore, is divisible and subject to the modified
categorical approach. United States v. Marshall, 747 F. App’x 139, 149-50 (4th Cir. 2018)
(No. 16-4594) (argued but unpublished); see Furlow, 928 F.3d at 320-22 (citing with
approval Marshall and holding that S.C. Code Ann. § 44-53-375(B) similarly is subject to
the modified categorical approach).
We therefore conclude that the modified categorical approach applies to Carter’s
prior conviction under S.C. Code Ann. § 44-53-445. Carter does not dispute that, under
this approach, his conviction qualifies as a controlled substance offense under USSG
§ 4B1.2. 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 this court and argument would not aid the decisional process.
AFFIRMED
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