United States v. Brian Brewington ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4444
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN LEE BREWINGTON, a/k/a Bloody Maniack,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Richard E. Myers, II, Chief District Judge. (5:20-cr-00208-M-1)
Submitted: May 31, 2023 Decided: June 6, 2023
Before NIEMEYER and AGEE, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief
Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Brian Lee Brewington appeals the 128-month sentence imposed following his guilty
plea to distributing a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).
Brewington argues that the district court erroneously applied the career offender
enhancement under U.S. Sentencing Guidelines Manual § 4B1.2 (2018), because the
offense of conviction does not qualify as a controlled substance offense, and because his
2018 North Carolina conviction for possession with intent to sell or deliver marijuana
should have been classified as relevant conduct rather than counted as a prior conviction.
A defendant qualifies as a career offender if
(1) [he] was at least eighteen years old at the time [he] committed the instant
offense of conviction; (2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense; and (3) [he] has
at least two prior felony convictions of either a crime of violence or a
controlled substance offense.
USSG § 4B1.1(a). A “controlled substance offense” is “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 the
possession of a controlled substance . . . with intent to manufacture, import, export,
distribute or dispense.” USSG § 4B1.2(b).
We review de novo whether a defendant’s conviction qualifies as a controlled
substance offense. United States v. Campbell, 22 F.4th 438, 441 (4th Cir. 2022). When
determining whether a conviction triggers a career offender enhancement, we generally
employ the categorial approach, “focus[ing] on the elements of the . . . offense rather than
the conduct underlying the conviction.” United States v. Dozier, 848 F.3d 180, 183 (4th
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Cir. 2017) (internal quotation marks omitted). A conviction qualifies as a controlled
substance offense “only if all of the ways of violating the statute, including the least
culpable, satisfy the Guidelines’ definition” of a controlled substance offense. United
States v. Walker, 858 F.3d 196, 199 (4th Cir. 2017).
In United States v. Groves, 65 F.4th 166 (4th Cir. 2023), we held that a conviction
for distribution of a controlled substance under 21 U.S.C. § 841(a)(1) categorically
qualifies as a “controlled substance offense” under USSG § 4B1.2. Applying Groves, we
conclude that Brewington’s offense of conviction categorically qualifies as a “controlled
substance offense” under USSG § 4B1.2.
Next, Brewington argues that the district court erred in applying the career offender
enhancement because his 2018 North Carolina conviction for possession with intent to sell
or deliver marijuana was relevant conduct to the instant distribution offense under USSG
§ 1B1.3(a)(2), and therefore should not have been counted as a prior conviction.
Brewington acknowledges that this court’s decision in United States v. Moses, 23 F.4th
347 (4th Cir. 2022), forecloses his claim. However, Brewington asserts that United
States v. Campbell, 22 F.4th 438 (4th Cir. 2022), is directly in conflict with Moses and that
Campbell, as the first-in-time opinion, controls. Campbell considered whether an inchoate
crime qualified as a career offender predicate—a different factual scenario than is
presented here. On the other hand, because Moses addressed the identical issue as is
presented here: whether a controlled substance conviction returned several years earlier is
relevant conduct in relation to a controlled substance offense of conviction or whether it is
properly counted as a prior conviction for purposes of the career offender enhancement.
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Accordingly, Moses controls. Therefore, the court did not err in sentencing Brewington as
a career offender.
Accordingly, we affirm. 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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