United States v. Jordan Boone

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 6, 2023
• Docket: 20-4496
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4496

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JORDAN AVERELL BOONE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:19-cr-00152-FL-1)

Submitted: September 14, 2023 Decided: November 6, 2023

Before DIAZ, Chief Judge, HEYTENS, Circuit Judge, and FLOYD, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ON BRIEF: Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina; Paul K. Sun, Jr., Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Jordan Averell Boone pled guilty to possession of a firearm and ammunition by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (count 1), possession with

intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1) (count 2),

and possession of a firearm in furtherance of a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A) (count 3). The district court calculated Boone’s imprisonment

range under the U.S. Sentencing Guidelines Manual (2018) for counts 1 and 2 at 46 to 57

months and imprisonment term on count 3 at a consecutive term of 60 months. The court

sentenced Boone to concurrent 46-month prison terms on counts 1 and 2 and a consecutive

prison term of 60 months on count 3, for a total prison term of 106 months. The court also

sentenced Boone to three concurrent three-year terms of supervised release, terms falling

within the Sentencing Guidelines’ advisory supervision ranges for Boone’s counts of

conviction.

Boone’s counsel initially filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), stating there were no meritorious grounds for appeal. Boone was notified of

his right to file a pro se supplemental brief, but he did not file one. After reviewing the

record pursuant to Anders, we ordered supplemental briefing on the following issues:

whether, in light of United States v. Campbell, 22 F.4th 438, 440-41, 449 (4th Cir. 2022)

(holding defendant’s conviction under West Virginia drug distribution statute

criminalizing attempt offenses swept more broadly than Guidelines’ definition of

“controlled substance offense”), the district court plainly erred in determining that Boone

had a qualifying prior conviction for a controlled substance offense for purposes of

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applying the enhanced offense level under USSG § 2K2.1(a)(3); whether the district

court’s pronouncement of supervised release conditions complied with United States v.

Rogers, 961 F.3d 291, 296 (4th Cir. 2020) (holding district court must announce all

discretionary conditions of supervised release at sentencing hearing); and whether the

district court plainly erred by failing to adequately explain its reasons for imposing a

discretionary condition of supervised release requiring that Boone participate in addiction

treatment (the addiction condition 1).

In his supplemental brief, Boone argues that: in light of Campbell, the district court

plainly erred in applying an enhanced base offense level of 22 under USSG § 2K2.1(a)(3)

because his North Carolina state conviction for selling marijuana is not categorically a

controlled substance offense under the Guidelines 2; reversible error under Rogers is present

because the district court did not announce at the sentencing hearing two discretionary

conditions of supervised release prohibiting him from incurring new credit charges or

opening lines of credit without probation office approval and requiring him to provide the

probation office with access to any requested financial information (the financial

conditions) included in the written judgment; the district court imposed a procedurally

1 The addiction condition reads in full: “The defendant shall participate as directed in a program approved by the probation office for the treatment of narcotic addiction, drug dependency, or alcohol dependency which will include urinalysis testing or other drug detection measures and may require residence or participation in a residential treatment facility.” 2 Under USSG § 2K2.1(a)(3), a base offense level of 22 applies if, among other conditions, the defendant committed any part of his instant offense subsequent to sustaining a felony conviction for a “controlled substance offense.”

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unreasonable sentence when it committed plain error by failing to explain its reasons for

imposing the financial conditions, the addiction condition, and a discretionary supervision

condition requiring that he consent to warrantless searches of his person, premises, and

vehicle by the probation officer or another law enforcement officer at the probation

officer’s request (the warrantless search condition); and the financial and addiction

conditions are plainly substantively unreasonable because they do not satisfy the

requirements of 18 U.S.C. § 3583(d). 3

The Government maintains that: Boone’s prior conviction for selling marijuana in

violation of N.C. Gen. Stat. § 90-95(a)(1) is a controlled substance offense under the

Guidelines, and Campbell does not require Boone’s interpretation; no plain error under

Rogers is present; and Boone fails to demonstrate plain error as to the financial, addiction,

and warrantless search conditions. After supplemental briefing concluded, this court held

in United States v. Miller, 75 F.4th 215, 230-31 (4th Cir. 2023), that N.C. Gen. Stat.

§ 90-95(a)(1), is “a categorical match” with the Guidelines’ definition of a controlled

substance offense. Upon our review, we affirm the judgment in part, vacate the addiction

condition as procedurally unreasonable, and remand that portion of Boone’s sentence back

to the district court.

We generally review a criminal sentence “for reasonableness under a deferential

abuse-of-discretion standard.” United States v. Fowler, 58 F.4th 142, 150 (4th Cir. 2023)

Although Boone’s argument exceeds the scope of the supplemental briefing order, 3

the Government does not object to Boone’s additional briefing.

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(internal quotation marks omitted). “Reasonableness review has procedural and

substantive components.” Id. (internal quotation marks omitted). “Procedural

reasonableness requires us to ensure that the district court committed no significant

procedural error,” id. (internal quotation marks omitted), which includes improperly

calculating the Guidelines range, insufficiently considering the 18 U.S.C. § 3553(a)

factors, or inadequately explaining the selected sentence, United States v. Fowler, 948 F.3d

663, 668 (4th Cir. 2020). “A district court is required to provide an individualized

assessment based on the facts before the court, and to explain adequately the sentence

imposed to allow for meaningful appellate review and to promote the perception of fair

sentencing.” United States v. Lewis, 958 F.3d 240, 243 (4th Cir. 2020) (internal quotation

marks omitted).

“If the sentence is procedurally sound, we then consider its substantive

reasonableness under a deferential abuse-of-discretion standard.” United States v.

Williams, 5 F.4th 500, 510 (4th Cir. 2021) (internal quotation marks omitted). “A sentence

is substantively unreasonable only where under the totality of the circumstances, the

sentencing court abused its discretion in concluding that the sentence it chose satisfied the

standards set forth in § 3553(a).” United States v. Gillespie, 27 F.4th 934, 944-45 (4th Cir.)

(internal quotation marks omitted), cert. denied, 143 S. Ct. 164 (2022). “And any sentence

that is within or below a properly calculated Guidelines range is presumptively

[substantively] reasonable.” Id. at 945. A defendant can rebut this presumption only by

showing that the sentence is unreasonable when measured against the § 3553(a) factors.

United States v. White, 810 F.3d 212, 230 (4th Cir. 2016).

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Although we ordinarily consider de novo whether a defendant’s prior conviction is

a controlled substance offense under the Guidelines, we consider Boone’s challenge to the

district court’s application of USSG § 2K2.1(a)(3) for plain error because he did not

preserve it in the district court. See Miller, 75 F.4th at 228-29. “To show that the district

court plainly erred, [Boone] must establish that (1) an error occurred; (2) the error was

plain; and (3) the error affected his substantial rights.” United States v. Combs, 36 F.4th

502, 505 (4th Cir. 2022) (cleaned up). An error qualifies as plain “when it is clear or,

equivalently, obvious under current law.” United States v. Hope, 28 F.4th 487, 507

(4th Cir. 2022) (cleaned up). Demonstrating that a sentencing error affected his substantial

rights requires Boone to “show a reasonable probability that, but for the error, the outcome

of the proceeding would have been different.” Combs, 36 F.4th at 507 (internal quotation

marks omitted). Even if these three factors are satisfied, we will “exercise our discretion

to correct the error only if it seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. at 505 (cleaned up).

The district court applied an enhanced base offense level of 22 under USSG

§ 2K2.1(a)(3) after determining that Boone’s North Carolina state conviction for selling

marijuana—for which he was sentenced to 8 to 19 months’ imprisonment—was a

controlled substance offense under the Guidelines. 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); see id. § 2K2.1

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cmt. n.1 (“‘Controlled substance offense’ has the meaning given that term in § 4B1.2(b).”).

It is unlawful under N.C. Gen. Stat. § 90-95(a)(1) to “manufacture, sell or deliver, or

possess with intent to manufacture, sell or deliver, a controlled substance.” Boone’s prior

conviction for selling marijuana in violation of this statute “is a categorical match” with

the Guidelines’ definition in USSG § 4B1.2(b) of a controlled substance offense. Miller,

75 F.4th at 230-31; see Campbell, 22 F.4th at 441 (“To determine whether a conviction

under an asserted predicate offense statute . . . constitutes a controlled substance offense as

defined by the Sentencing Guidelines, we employ the categorical approach.” (internal

quotation marks omitted)). Consequently, we conclude that the district court did not

plainly err in determining that Boone’s prior state conviction was a controlled substance

offense warranting a base offense level of 22 under USSG § 2K2.1(a)(3).

Next, in Rogers, this court held a district court must announce all discretionary

conditions of supervised release at the sentencing hearing. Rogers, 961 F.3d at 296. A

district court may satisfy this obligation through incorporation of a court-wide standing

order listing conditions of supervised release. Id. at 299. Boone contends that Rogers error

is present because the district court’s oral pronouncements at the sentencing hearing were

insufficient to incorporate the financial conditions present in the district court’s standing

order. Because Boone did not raise this claim below, we review it only for plain error.

United States v. Elbaz, 52 F.4th 593, 611-12 (4th Cir. 2022), petition for cert. filed,

No. 22-1055 (U.S. May 1, 2023). Although he bears the burden to establish the elements

of plain error, Boone, we conclude, does not demonstrate either error qualifying as clear or

obvious in the district court’s pronouncements, see Hope, 28 F.4th at 507, or that any error

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affected his substantial rights, see Combs, 36 F.4th at 507. We thus find no plain error

warranting correction under Rogers.

Turning to Boone’s challenges to the discretionary conditions of supervised release,

we review them for plain error as well because Boone did not challenge the conditions

before the district court. See Elbaz, 52 F.4th at 613. We discern no plain procedural error

in the financial and warrantless search conditions or plain substantive error in the financial

conditions. To the extent that the district court did not directly explain why it imposed

these conditions, the court’s reasoning for doing so is self-evident, Boone did not object to

the conditions, and the district court provided a sufficient explanation for the sentence as a

whole. See United States v. Boyd, 5 F.4th 550, 559 (4th Cir. 2021). The financial

conditions also are consistent with the requirements of 18 U.S.C. § 3583(d). See United

States v. Neal, 810 F.3d 512, 520-21 (7th Cir. 2016).

That leaves the addiction condition. We conclude that the record lacks self-evident

support for this condition and that the district court procedurally erred by failing to provide

a basis for requiring Boone’s participation in addiction treatment as a condition of

supervised release. See Lewis, 958 F.3d at 244. The record contains no information

regarding Boone’s alcohol use or dependency. Boone’s counsel represented at sentencing

that Boone was not addicted to any controlled substances, and counsel for the Government

did not suggest otherwise. The presentence report (PSR) the district court adopted reports

that, prior to sentencing, Boone received a substance abuse assessment while on state

probation but that no treatment was recommended. The PSR also reports that Boone had

used marijuana occasionally in the past but that his last use occurred a “long time” before

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sentencing and that he was not addicted to the drug. In explaining its sentence, the district

court did not rely on this information about Boone’s substance use or address whether he

was or had been addicted to any drugs or dependent on alcohol. “On this record, we cannot

discern the court’s sentencing rationale in imposing this condition.” Id. In imposing the

addiction condition without an adequate explanation, the district court committed a plain

error that affected Boone’s substantial rights. See United States v. McMiller, 954 F.3d 670,

676-77 (4th Cir. 2020). And “because an adequate explanation is also necessary to promote

the perception of fair sentencing,” the absence of such an explanation “seriously affects the

fairness, integrity or public reputation of judicial proceedings.” Id. at 677 (cleaned up).

Because Boone has met his burden under plain error review, we vacate the addiction

condition “as procedurally unreasonable and remand to the district court for further

explanation.” Id. 4 We affirm the remainder of Boone’s sentence.

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. Accordingly, we affirm the district court’s

judgment in part, vacate the addiction condition as procedurally unreasonable, and remand

to the district court for resentencing as to that condition. This court requires that counsel

inform Boone, in writing, of the right to petition the Supreme Court of the United States

for further review. If Boone requests that a petition be filed, but counsel believes that such

4 Because we conclude that the imposition of the addiction condition was procedurally unreasonable, we do not address whether it is substantively reasonable. See McMiller, 954 F.3d at 677 n.6.

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a petition would be frivolous, then counsel may move in this court for leave to withdraw

from representation. Counsel’s motion must state that a copy thereof was served on Boone.

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 IN PART, VACATED IN PART, AND REMANDED