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United States v. Dozier

United States Court of Appeals, Fourth Circuit

January 30, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DESHAWN DOZIER, Defendant-Appellant.

          Argued: October 27, 2016

         Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:15-cr-00078-1)

         ARGUED:

          Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.

          Miller A. Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee.

         ON BRIEF:

          Christian M. Capece, Federal Public Defender, Rachel E. Zimarowski, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.

          Carol A. Casto, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

          Before SHEDD and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.

         Affirmed by published opinion. Senior Judge Davis wrote the opinion, in which Judge Shedd and Judge Keenan joined.

          DAVIS, Senior Circuit Judge.

         Deshawn Dozier pled guilty to distribution of a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and he was sentenced as a career offender to 151 months imprisonment. On appeal, Dozier contends (1) the district court erroneously applied the modified categorical approach when determining whether a prior state court attempt conviction qualified as a "controlled substance offense" under U.S.S.G. § 4B1.2, and (2) because West Virginia's general attempt statute criminalized more conduct than a generic controlled substance offense, he should not be designated a career offender.

         We conclude that the district court erred in applying the modified categorical approach to the West Virginia general attempt statute. Given the unique complexity of general attempt statutes, we hold that sentencing courts must compare the state and generic elements of such statutes as well as the elements of the underlying substantive statutory offense when determining whether a prior attempt conviction qualifies as a controlled substance offense. The district court failed to make these required comparisons. However, even when analyzed under the correct approach, Dozier's prior attempt conviction under West Virginia law properly constitutes a controlled substance offense under § 4B1.2 of the Sentencing Guidelines. We therefore affirm the judgment.

         I.

         In April 2015, Dozier was charged with knowingly and intentionally distributing a quantity of crack cocaine in violation of 21 U.S.C. § 841(a)(1). After Dozier entered his guilty plea, the probation officer prepared a Presentence Investigation Report ("PSR") to assist the district court at sentencing. The PSR identified the relevant conduct attributable to Dozier, which produced a base offense level of 20. The PSR then recommended a two-level enhancement for possession of a firearm, a Chapter Four enhancement for qualifying as a career offender, and a three-level reduction for ...


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