United States v. Brian Brewington

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 6, 2023
• Docket: 21-4444
• Status: Unpublished

Opinion

USCA4 Appeal: 21-4444 Doc: 40 Filed: 06/06/2023 Pg: 1 of 4

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4444 Doc: 40 Filed: 06/06/2023 Pg: 2 of 4

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

2 USCA4 Appeal: 21-4444 Doc: 40 Filed: 06/06/2023 Pg: 3 of 4

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.

3 USCA4 Appeal: 21-4444 Doc: 40 Filed: 06/06/2023 Pg: 4 of 4

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