United States v. Johnl White

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 4, 2025
• Docket: 23-4325
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4325

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHNL KEITH WHITE, a/k/a Mad Max,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. James C. Dever III, District Judge. (2:22-cr-00009-D-RJ-1)

Submitted: March 27, 2025 Decided: April 4, 2025

Before AGEE, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Leslie T. Sarji, SARJI LAW FIRM, LLC, Charleston, South Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, John L. Gibbons, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Johnl Keith White pleaded guilty, without a written plea agreement, to possession

of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2018).

The district court established a base offense level of 20, pursuant to U.S. Sentencing

Guidelines Manual § 2K2.1(a)(4)(A) (2021), relying on White’s prior conviction for

possession with intent to manufacture, sell, or deliver heroin, in violation of N.C. Gen. Stat.

§ 90-95(a)(1). After applying an enhancement and a downward adjustment and placing

White in criminal history category IV, the district court calculated an advisory Sentencing

Guidelines range of 46 to 57 months’ imprisonment and sentenced White to a prison term

of 51 months. In this appeal, ∗ White contends that, after United States v. Campbell, 22

F.4th 438, 441-44 (4th Cir. 2022) (holding that West Virginia offense of delivery of crack

cocaine, which could include attempted delivery, was not a “controlled substance offense”

under the Guidelines), his prior North Carolina conviction is not a controlled substance

offense under USSG § 4B1.2. The Government moves for summary affirmance, arguing

that White’s claim is foreclosed by our decision in United States v. Miller, 75 F.4th 215

(4th Cir. 2023). Although we deny the Government’s motion, we affirm the criminal

judgment.

The questions here are whether a North Carolina drug conviction satisfies the

definition of a controlled substance offense in USSG § 4B1.2 and which published decision

∗ We held this case in abeyance for our decision in United States v. Jackson, 127 F.4th 448 (4th Cir. 2025). Upon the issuance of the mandate in Jackson, this appeal was removed from abeyance and is ripe for disposition.

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controls the analysis. In Miller, we held that—unlike the nearly identical West Virginia

statute at issue in Campbell—N.C. Gen. Stat. § 90-95(a) “is a categorical match” with the

definition of a controlled substance offense in the Guidelines. 75 F.4th at 230-31. We

highlighted a key difference between the statutory schemes—“North Carolina separately

criminalizes attempt offenses from drug offenses,” id. at 230, but West Virginia does not,

id. at 229. We noted that “[c]onstruing § 90-95(a)(1) to include attempt offenses would

render [North Carolina’s] attempt statute superfluous.” Id. at 230.

In United States v. Jackson, we addressed the prior-panel-precedent rule. 127 F.4th

at 454-55. Jackson argued that our decision in United States v. Davis, 75 F.4th 428, 444-

45 (4th Cir. 2023) (holding that the South Carolina statute at issue qualified as a controlled

substance offense under the Guidelines’ definition), was not controlling legal authority,

despite being published. 127 F.4th at 454. “Instead, Jackson argue[d], because there [was]

an irreconcilable conflict between Davis and the earlier-decided Campbell, Campbell

continue[d] to control.” Id. However, in Jackson, we held that our Davis decision

foreclosed that argument. Id. at 455. We reasoned that the South Carolina statute at issue

in Davis was “materially distinguishable” from the West Virginia statute at issue in

Campbell because the South Carolina statute “does not reach attempted distribution

offenses.” Id. We therefore held “[t]hat [the Davis] holding squarely govern[ed in

Jackson].” Id.

While Jackson disagreed with the Davis Court’s analysis, we observed that “Davis

is published, binding authority. And when Davis declined to follow [a prior] unpublished

decision . . . and instead ruled that a South Carolina distribution conviction . . . is a

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Guidelines controlled substance offense, it changed the ‘controlling legal authority’ for

purposes of the mandate rule exception.” Id. Thus, we concluded that the district court in

Jackson had “correctly relied on Davis and properly treated [the] South Carolina drug

distribution convictions as predicate controlled substance offenses under the Guidelines.”

Id. This court found no procedural error in the district court’s calculation of Jackson’s

Guidelines sentencing range. Id.

Here, applying our reasoning in Jackson, White’s argument is foreclosed by

Miller—a published, binding decision. We held in Miller that N.C. Gen. Stat. § 90-95(a)

is a “categorical match” with the definition of a controlled substance offense in the

Guidelines, reasoning that the North Carolina statute (like the South Carolina statute at

issue in Jackson) separately criminalizes attempt offenses from drug offenses. 75 F.4th at

230-31. Although White disagrees with Miller’s analysis—as the appellant in Jackson did

with Davis—that is of no matter. Because this court has previously addressed in Miller the

precise question White raises in this appeal, and because Miller held that a conviction under

N.C. Gen. Stat. § 90-95(a)(1) is a controlled substance offense under USSG § 4B1.2, the

district court properly treated White’s North Carolina drug distribution conviction as a

predicate controlled substance offense under the Guidelines and properly overruled

White’s Campbell objection. The district court therefore committed no procedural error in

calculating White’s Guidelines range.

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Accordingly, we affirm the criminal 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