USCA4 Appeal: 20-4475 Doc: 67 Filed: 03/30/2023 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-4475
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENDALL DEMARKO WYSINGER, a/k/a Demarko, a/k/a D,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:17-cr-00022-EKD-JCH-1)
Argued: December 8, 2021 Decided: March 30, 2023
Before HARRIS and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Harris and Senior Judge Keenan joined.
ARGUED: Paul Graham Beers, GLENN, FELDMAN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Daniel P. Bubar, Acting United States Attorney, Roanoke, Virginia, Jennifer R. Bockhorst, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. USCA4 Appeal: 20-4475 Doc: 67 Filed: 03/30/2023 Pg: 2 of 20
RUSHING, Circuit Judge:
Defendant Kendall Demarko Wysinger and his partner Leslee Garza conspired to
ensnare drug-addicted women in debt-cycle sex trafficking. Wysinger would give the
women heroin and cocaine they could not afford and then insist they repay their debt by
prostituting themselves for his benefit throughout Virginia, West Virginia, and Maryland.
On March 23, 2016, Wysinger provided fentanyl to two women who overdosed. Wysinger
left the women for dead and destroyed the evidence. One of the women died, but the other
survived and testified against him.
A jury convicted Wysinger of (1) conspiracy to commit sex-trafficking, in violation
of 18 U.S.C. §§ 1591(a)(1) and 1594(c); (2) interstate transportation for the purpose of
prostitution, in violation of 18 U.S.C. § 2421; (3) distribution of, and possession with intent
to distribute, fentanyl, the use of which resulted in death, in violation of 21 U.S.C. § 841,
et seq.; and (4) distribution of, and possession with intent to distribute, fentanyl, the use of
which resulted in serious bodily injury, in violation of 21 U.S.C. § 841, et seq. 1 At
sentencing, the district court found that Wysinger had a prior conviction for a felony drug
offense, triggering a mandatory life sentence on Counts 3 and 4 pursuant to 21 U.S.C.
§ 841(b)(1)(C). The court sentenced Wysinger to life in prison on Counts 1, 3, and 4, and
120 months’ imprisonment on Count 2, all to be served concurrently.
Wysinger now appeals his convictions and sentence. We affirm in full.
1 The jury also convicted Wysinger of obstruction of justice, in violation of 18 U.S.C. § 1512(c)(1), but the district court set that conviction aside on Wysinger’s motion. The jury acquitted Wysinger on a second obstruction charge. 2 USCA4 Appeal: 20-4475 Doc: 67 Filed: 03/30/2023 Pg: 3 of 20
I.
Wysinger first challenges his Count 1 conviction for conspiracy to violate 18 U.S.C.
§ 1591, which criminalizes sex trafficking by force, fraud, or coercion. He argues that the
evidence was insufficient to support his conviction and that the district court instructed the
jury incorrectly. We take each argument in turn.
A.
We review the sufficiency of the evidence de novo, sustaining the verdict if,
“viewing the evidence in the light most favorable to the Government, it is supported by
substantial evidence.” United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005) (internal
quotation marks omitted). The jury, not the reviewing court, weighs credibility and
resolves conflicts in the evidence; and “if the evidence supports different, reasonable
interpretations, the jury decides which interpretation to believe.” United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks omitted). A defendant
bringing a sufficiency challenge therefore bears “a heavy burden,” and reversal is
warranted only “where the prosecution’s failure is clear.” United States v. Engle, 676 F.3d
405, 419 (4th Cir. 2012) (internal quotation marks and citation omitted).
As relevant here, Section 1591 criminalizes knowingly recruiting, enticing,
harboring, transporting, providing, obtaining, or maintaining a person, knowing or in
reckless disregard of the fact “that means of force, threats of force, fraud, coercion
described in subsection (e)(2), or any combination of such means will be used to cause the
person to engage in a commercial sex act.” 18 U.S.C. § 1591(a)(1). Nearby 18 U.S.C.
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§ 1594(c) criminalizes conspiracy to violate Section 1591. Wysinger challenges the
sufficiency of the evidence to prove the coercion and conspiracy elements.
1.
Wysinger first contends the Government did not prove that he used or conspired to
use coercive means to cause his victims to prostitute themselves. The statute defines
“coercion” to include “threats of serious harm to or physical restraint against any person”
and “any scheme, plan, or pattern intended to cause a person to believe that failure to
perform an act would result in serious harm to or physical restraint against any person.”
Id. § 1591(e)(2)(A)–(B). “Serious harm” means “any harm, whether physical or
nonphysical, including psychological, financial, or reputational harm, that is sufficiently
serious, under all the surrounding circumstances, to compel a reasonable person of the same
background and in the same circumstances to perform or to continue performing
commercial sexual activity in order to avoid incurring that harm.” Id. § 1591(e)(5).
The Government’s theory was that Wysinger intended—and in at least one case
succeeded—to recruit women with drug addictions by fronting them drugs and then, once
they began working for him, to keep the money they made from prostitution and give the
women more drugs only when they earned him more money. In support, the Government
presented testimony from 23 witnesses, including two victims, law enforcement officers,
associates of Wysinger, and experts. An expert in drug dependence explained heroin and
fentanyl addiction and withdrawal sickness. An expert in commercial sex trafficking
testified about the difference between voluntary prostitution and sex trafficking, including
the debt-bondage relationship created by pimps who compel prostitution through drug
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dependence. Ultimately, the Government contended that Wysinger conspired to employ a
“scheme, plan, or pattern” intended to cause the women to believe that if they failed to
engage in commercial sex acts, they would incur a “serious harm” by going into drug
withdrawal. Id. § 1591(e)(2).
Wysinger does not dispute that manipulating vulnerable women by exploiting their
drug addictions in exchange for prostitution services can be coercion within the meaning
of Section 1591 or, put another way, that the Government’s theory is a permissible one.
See, e.g., United States v. Mack, 808 F.3d 1074, 1078, 1081–1082 (6th Cir. 2015)
(upholding conviction for sex trafficking where defendant “recruit[ed] young female
addicts” and exploited their addictions to coerce them “to prostitute themselves for his
benefit”); United States v. Fields, 625 Fed. App. 949, 952 (11th Cir. 2015) (upholding sex-
trafficking conviction where defendant coerced his victims to engage in commercial sex
acts by “causing them to experience withdrawal sickness if they did not engage in
prostitution”). Nor does he contest that withdrawal symptoms can be “serious harm”
within the statute’s broad definition of that term. Instead, Wysinger argues his conduct
was not as egregious as that of defendants in other cases and that, in any event, the evidence
simply did not prove the Government’s theory. He claims that his relationship with the
victims was “voluntary and collaborative,” highlighting evidence that he was not violent
with the women, that they had previously engaged in prostitution and were addicted when
he met them, that he did not prevent them from buying drugs elsewhere, and that one of
the women moved in and out of his house freely.
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Considering the evidence in the light most favorable to the Government, as we must,
we conclude that it supports the jury’s finding that Wysinger intended to use coercion. For
example, victim M.J. testified that Wysinger and Garza exploited her as a prostitute. She
lived in the house shared by Wysinger and Garza for about a year, performing commercial
sex acts there and conducting “outcalls” elsewhere. During the same year, victim C.S.S.
also lived in the house and worked as a prostitute for Wysinger. 2 M.J. testified that on their
very first day in Wysinger’s house, he gave the women heroin and then posted
advertisements for them on a prostitution website because they “owed him money” for the
heroin they had consumed. J.A. 177. The women performed, and the cycle continued.
Wysinger and Garza told M.J. she was indebted to them for Wysinger driving her to
outcalls and for drugs. Wysinger took “[p]retty much all” of the money M.J. made, J.A.
211, and supplied her with daily rations of drugs. M.J. testified that Wysinger got angry at
her when she “owed him money and . . . didn’t want to work” or “was dope sick and . . .
felt like [she] couldn’t go work.” J.A. 184.
Victim S.F. also testified. At first, Wysinger gave S.F. drugs in exchange for sex.
Once S.F. was receiving drugs from Wysinger every day, he required her to prostitute for
him in Ocean City. S.F. testified that she only went with Wysinger because he threatened
to stop supplying her drugs if she refused. Because Wysinger was her best source of
supply, S.F. testified, she would experience withdrawal and be “deathly ill” if she did not
submit to Wysinger’s proposal. J.A. 566. Wysinger drove S.F. to Ocean City, posted
2 C.S.S. was not available to testify because she died from an overdose of fentanyl supplied by Wysinger. Her death was the subject of Count 3. 6 USCA4 Appeal: 20-4475 Doc: 67 Filed: 03/30/2023 Pg: 7 of 20
advertisements for her online, and drove her to outcalls until they were arrested in an
undercover law enforcement operation. S.F. testified that during this trip, Wysinger
supplied her with drugs only as much as she prostituted for him. This testimony, and other
consistent evidence, supports the jury’s finding that Wysinger intended to coerce his
victims into prostitution by exploiting their drug dependencies, even if he did not fully
accomplish his scheme before his arrest.
Wysinger’s arguments largely ask us to reweigh the facts, which we cannot do. See
United States v. Maynes, 880 F.3d 110, 114 (4th Cir. 2018). For example, he claims that
this case is not like Mack because the defendant there provided “free” drugs to his victims,
only to later claim the drugs were not free and that the women owed a large debt. But
whatever factual distinctions exist between this case and Mack make no difference. M.J.
testified that Wysinger “fronted” her drugs and then posted her on a prostitution website to
pay for them. J.A. 174–175. Although “fronting” drugs and falsely providing them for
free may not be exactly the same, the underlying coercion is identical. Like the defendant
in Mack, Wysinger intended to exploit the addictions of vulnerable women for his own
profit by using seemingly easy access to drugs to create a cycle of debt and dependence.
Wysinger also argues he cannot be guilty of using coercion because his victims purchased
heroin from other dealers while involved with him. But that is not universally true. M.J.,
for example, retained almost none of her earnings and thus remained dependent on
Wysinger. And even if some of Wysinger’s victims were not dependent on him at all times,
that would merely show that his plot did not always succeed. It would not absolve him of
guilt for concocting and attempting the scheme.
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As for Wysinger’s repeated argument that he was not violent with the women, the
statute plainly condemns “means of . . . coercion” separate from and in addition to “means
of force [and] threats of force.” 18 U.S.C. § 1591(a); see Mack, 808 F.3d at 1081–1082
(addressing the defendant’s use of coercion and use of force separately). Nor is physical
violence necessary to establish coercion under the statute. See 18 U.S.C. § 1591(e)(2)
(defining “coercion”), (5) (defining “serious harm”). The evidence sufficed to support the
jury’s finding of coercion.
2.
Next, Wysinger argues that even if he harbored coercive intent, the evidence does
not show that his alleged co-conspirator Garza shared his intent. A basic requirement of
the conspiracy offense is proof “that two or more people agreed to commit” the crime—
here, sex trafficking by force, fraud, or coercion. Smith v. United States, 568 U.S. 106, 110
(2013). If Garza lacked criminal intent, there could be no agreement to commit the crime.
Contrary to Wysinger’s contention, a reasonable jury could conclude that Garza
knew of and intended to participate in Wysinger’s illegal scheme. Garza—the mother of
Wysinger’s child—was not available to testify at trial because she died from a fentanyl
overdose allegedly supplied by Wysinger. Nevertheless, the evidence showed that she
lived in the same house with Wysinger and some of his victims, who engaged in
commercial sex there. M.J. testified that she and C.S.S. worked for Wysinger seven days
a week; he gave them only one day off all year, so that he, Garza, and the victims could
watch football. What is more, Garza herself posted advertisements for the victims on a
prostitution website. She knew that Wysinger was collecting the victims’ money and
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supplying them with drugs and that they had no cars or credit cards of their own. Indeed,
when M.J. needed things from the store, Garza would drive her.
While this evidence may not compel the conclusion that Garza conspired with
Wysinger, it suffices to support the jury’s finding that Garza understood the nature of their
undertaking and agreed to participate. As the jury was instructed (and Wysinger does not
dispute), an agreement may be inferred from indirect and circumstantial evidence. A
“‘rational trier of fact,’” viewing the evidence and all inferences drawn therefrom in the
light most favorable to the Government, “‘could have agreed with the jury’” that Garza and
Wysinger conspired to coerce the victims into prostitution. Maynes, 880 F.3d at 114
(quoting Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam)). We therefore
cannot set aside the jury’s verdict on this ground. Id.
B.
Wysinger also challenges the district court’s instruction to the jury on the
knowledge element of the Section 1591 offense. As he admits, Wysinger did not preserve
this argument in the district court, so we review only for plain error. Under that standard,
we will vacate the judgment if “(1) an error was made; (2) the error is plain; (3) the error
affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Fall, 955 F.3d 363, 373 (4th Cir.
2020) (internal quotation marks omitted). We find no error here.
Section 1591 punishes anyone who knowingly “recruits, entices, harbors,
transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a
person . . . knowing, or, except where the act constituting the violation of paragraph (1) is
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advertising, in reckless disregard of the fact, that means of force, threats of force, fraud,
coercion . . . , or any combination of such means will be used to cause the person to engage
in a commercial sex act.” 18 U.S.C. § 1591(a) (emphasis added). Wysinger contends the
jury had to find that he acted knowing coercion would be used, not merely in reckless
disregard of that fact, because the Government charged him with advertising under Section
1591. The jury instruction for Count 1 was erroneous, he argues, because it allowed the
jury to convict him upon finding that he acted with the less culpable mental state of
recklessness.
Wysinger is incorrect. The indictment charged him with conspiring “to recruit,
entice, harbor, transport, provide, obtain, and maintain” the victims, and the jury was so
instructed. J.A. 20, 1133. The charge did not include advertising, which would have
required that he act with knowledge that coercion would be used. The indictment and
instructions mentioned the word “advertising” in one of five overt acts alleged to support
the charge, using the term to describe the website where Wysinger solicited customers to
engage in sex acts with his victims, not to describe the charge’s statutory basis. Consistent
with the indictment, the instructions did not authorize the jury to convict Wysinger on
Count 1 by finding that he conspired to advertise the victims. The district court therefore
correctly instructed the jury that it could convict Wysinger on Count 1 upon finding that
he acted with knowledge or reckless disregard of the fact that coercion would be used to
cause the victims to engage in commercial sex acts.
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II.
Wysinger next challenges his convictions on Counts 3 and 4 for distributing, or
possessing with intent to distribute, fentanyl resulting in serious bodily injury or death. See
21 U.S.C. § 841(a)(1), (b)(1)(C). Specifically, Wysinger argues the jury instructions for
Counts 3 and 4 were duplicitous and incompatible with the statute.
We may quickly dispense with the duplicity argument, which in truth stems from
the indictment rather than the jury instructions. Wysinger complains that Counts 3 and 4
each charged both distribution of fentanyl and possession with intent to distribute fentanyl,
which he claims is duplicitous. The jury instructions accurately reflected the indictment.
Federal Rule of Criminal Procedure 12(b)(3)(B)(i) requires a defendant to raise a duplicity
objection to the indictment before trial, which Wysinger failed to do. And although a court
may consider an untimely duplicity objection upon a showing of “good cause,” Fed. R.
Crim. P. 12(c)(3), Wysinger has not attempted to make such a showing. We therefore
decline to address his forfeited argument. See United States v. King, 628 F.3d 693, 699
(4th Cir. 2011).
As for the statutory elements, we review de novo Wysinger’s claim that the jury
instructions incorrectly stated the law. See United States v. Mouzone, 687 F.3d 207, 217
(4th Cir. 2012). Section 841 makes it unlawful to “knowingly or intentionally . . .
manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance,” and imposes an increased penalty “if death or serious
bodily injury results from the use of such substance.” 21 U.S.C. § 841(a)(1), (b)(1)(C).
The district court instructed the jury as follows:
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For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt:
First, that the defendant distributed a controlled substance, namely, fentanyl;
Second, that the defendant knew that the substance distributed was a controlled substance under the law at the time of the distribution, and;
Third, that the defendant did so knowingly or intentionally.
Or: First, that the defendant possessed a detectable amount of controlled substance alleged in the indictment;
Second, that the defendant knew that the substance possessed was a controlled substance under the law at the time of the possession; and
Third, that the defendant did so with the intent to distribute the controlled substance.
On each of these two counts, Count 3 and Count 4, if you find beyond a reasonable doubt that the government has established each of these elements, then you must determine whether death or serious bodily injury resulted from the use of the controlled substance by the alleged individual. This standard is satisfied if you find beyond a reasonable doubt that but for the individual ingesting the fentanyl, the individual would not have suffered a serious bodily injury or died.
J.A. 1144–1145. Wysinger claims that this instruction misapplied the statute because it
allowed the jury to convict on a finding of possession with intent to distribute, even if
Wysinger did not distribute fentanyl to the victims. According to Wysinger, Section 841’s
increased penalty when death or serious bodily injury results can apply only to defendants
who actually distribute the drug to the victim.
Wysinger misreads the statute. Its enhanced penalty applies not when the prohibited
conduct listed in Section 841(a)(1) results in death or injury but when “death or serious
bodily injury results from the use of such substance.” 21 U.S.C. § 841(b)(1)(C) (emphasis
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added); see United States v. Jeffries, 958 F.3d 517, 524 (6th Cir. 2020). Properly read, the
crime has two “principal elements”: (1) conduct prohibited by Section 841(a)(1), and
(2) “death caused by (‘resulting from’) the use of that drug.” Burrage v. United States, 571
U.S. 204, 210 (2014) (citing 21 U.S.C. § 841(b)(1)(C)). Nothing in the statute requires a
jury to find that the defendant actually delivered the drug to the victim in order for the
increased penalty to apply. Cf. United States v. Alvarado, 816 F.3d 242, 249 (4th Cir.
2016) (reaffirming after Burrage that Section 841(b)(1)(C) “‘imposes no reasonable
foreseeability requirement’” (quoting United States v. Patterson, 38 F.3d 139, 145 (4th Cir.
1994))). Nor do Wysinger’s authorities say anything of the sort. In each case, the crime
charged happened to be distribution, but the court made no suggestion that the other
conduct prohibited by the statute could not support a Section 841(b)(1)(C) conviction.
Finding no error in the jury instruction, we affirm Wysinger’s convictions on Counts 3 and
4.
III.
Wysinger’s convictions on Counts 3 and 4 subjected him to mandatory life
sentences because the district court found that he had “a prior conviction for a felony drug
offense.” 21 U.S.C. § 841(b)(1)(C). We review Wysinger’s challenge to this sentencing
enhancement for plain error because he did not preserve an objection to the enhancement
in the district court, and he certainly did not preserve the argument he now presses on
appeal. Under that standard, we will vacate the enhancement if (1) the district court erred
by characterizing Wysinger’s prior conviction as a “felony drug offense,” (2) the error is
plain, (3) the error affected his substantial rights, and (4) leaving the error uncorrected
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would seriously affect the fairness, integrity, or public reputation of judicial proceedings.
See Fall, 955 F.3d at 373.
A “felony drug offense” is “an offense that is punishable by imprisonment for more
than one year under any law of the United States or of a State or foreign country that
prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or
depressant or stimulant substances.” 21 U.S.C. § 802(44). The parties rightly agree that
this definition requires us to apply a categorical approach that compares the elements of
the defendant’s prior offense with the criteria specified in Section 802(44). See United
States v. Ruth, 966 F.3d 642, 647 (7th Cir. 2020) (“The conduct-based categorical approach
applies here to § 841(b)(1)(C)’s sentencing enhancement.”); cf. Shular v. United States,
140 S. Ct. 779, 782–783 (2020) (contrasting a “generic offense” categorical methodology
with a criterion-based method). The parties differ, however, on the meaning of “narcotic
drugs, marihuana, anabolic steroids, or depressant or stimulant substances” in the statute.
Specifically, they disagree about whether we should look to federal law or state law to
define those terms when assessing a prior state conviction.
We find the answer in the statute’s text. Section 802 provides highly detailed
definitions of the terms “narcotic drug,” 21 U.S.C. § 802(17), “marihuana,” id. § 802(16),
“anabolic steroid,” id. § 802(41), and “depressant or stimulant substance,” id. § 802(9)—
the exact terms used in the “felony drug offense” definition in Section 802(44). Congress’s
use of these defined terms in Section 802(44) strongly suggests that it intended those
definitions to control. See Burgess v. United States, 553 U.S. 124, 129 (2008) (“Statutory
definitions control the meaning of statutory words in the usual case.” (internal quotation
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marks and ellipsis omitted)); see, e.g., United States v. Aviles, 938 F.3d 503, 511 (3d Cir.
2019) (incorporating these definitions into Section 802(44)). Put another way, we doubt
Congress meant for us to ignore the detailed definitions it provided for these precise terms
in the same statutory section and instead search state codes to ascertain if and how the
States define those terms. 3
The parties miss the mark with arguments that turn on the meaning of “controlled
substance,” a term that appears nowhere in the definition of “felony drug offense.”
Wysinger would have us incorporate the federal drug schedules, see 21 U.S.C. § 812,
which define a “controlled substance” under federal law, see id. § 802(6). But we see no
reason to substitute a term Congress did not use for the words it actually did.
The Government, for its part, argues that our decision in United States v. Ward, 972
F.3d 364 (4th Cir. 2020), compels us to define the drug categories in Section 802(44) by
reference to state law. But in Ward, we interpreted the Sentencing Guidelines’ career-
offender enhancement, which in relevant part defines a “controlled substance offense” as
“an offense under federal or state law . . . that prohibits [certain conduct with respect to] a
controlled substance.” U.S.S.G. § 4B1.2(b) (emphasis added). As we explained, a
“controlled substance” is “any type of drug . . . regulated by law,” and the text of the
Guideline made clear that state regulation of the drug sufficed. Ward, 972 F.3d at 371–
372 (internal quotation marks and emphases omitted). Section 802(44), however, does not
3 For example, a glance at the Virginia Code reveals no definition for any variation of “depressant” or “stimulant,” much less the combined term “depressant or stimulant substance.” 15 USCA4 Appeal: 20-4475 Doc: 67 Filed: 03/30/2023 Pg: 16 of 20
refer to “controlled substances” but instead restricts the universe of relevant regulated
drugs to four categories: “narcotic drugs, marihuana, anabolic steroids, [and] depressant or
stimulant substances.” Although the Government urges us to consult state law, it does not
identify any state law actually defining these categories to guide our inquiry. Yet Congress
precisely defined these terms in the same statutory section. We will apply those definitions.
Having ascertained the criteria of a “felony drug offense” in Section 802(44), we
must compare the elements of Wysinger’s prior offense with those criteria to determine
whether the two categorically match. See Cucalon v. Barr, 958 F.3d 245, 250 (4th Cir.
2020) (explaining the categorical approach). The Government relies on Wysinger’s prior
conviction for violating Virginia Code § 18.2-248. 4 We have held that Section 18.2-248
is divisible by prohibited substance, Cucalon, 958 F.3d at 253; therefore, we may consult
certain records from Wysinger’s state court case to understand which specific offense
formed the basis of his conviction, see Shepard v. United States, 544 U.S. 13, 16–17 (2005)
(explaining acceptable documents). Those documents do not reveal the exact substance
Wysinger possessed, but they do establish that he pled guilty to “knowingly and
intentionally manufactur[ing], sell[ing], giv[ing], distribut[ing] or possess[ing] with intent
to manufacture, sell, give or distribute a Schedule I or II controlled substance, without
authority.” J.A. 1428.
4 In the district court, the Government also relied on a prior Maryland conviction. On appeal, the Government concedes that the documentation it submitted to the district court fell short of establishing that conviction, so we do not consider it. 16 USCA4 Appeal: 20-4475 Doc: 67 Filed: 03/30/2023 Pg: 17 of 20
Wysinger does not contest that his Virginia offense was “punishable by
imprisonment for more than one year.” 21 U.S.C. § 802(44). Rightly so. Section 18.2-
248 provides that a person who violates that section “with respect to a controlled substance
classified in Schedule I or II” shall be “imprisoned for not less than five” years. Va. Code
Ann. § 18.2-248(C) (2005).
Wysinger does contest whether his Virginia offense was under a state law “that
prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or
depressant or stimulant substances.” 21 U.S.C. § 802(44). The question is whether
Virginia’s Schedules I and II—which were the basis for Wysinger’s conviction—penalize
conduct with respect to any substances that are not “narcotic drugs, marihuana, anabolic
steroids, or depressant or stimulant substances” as defined in Section 802. See id. § 802(9),
(16), (17), (41). If they do, the state statute is not a categorical match for this “felony drug
offense” criterion.
When Wysinger was convicted, Virginia Schedule I, broadly speaking, included
opiates, opium derivatives, certain hallucinogenic substances, certain depressants, and
certain stimulants. Va. Code Ann. § 54.1-3446 (2005). Virginia Schedule II, again broadly
speaking, included opium and opiates, cocaine, certain stimulants, certain depressants, a
hallucinogenic substance, and certain substances that “are immediate precursors to
amphetamine and methamphetamine or phencyclidine.” Va. Code Ann. § 54.1-3448
(2005). Exhaustively comparing these detailed schedules to the Section 802 definitions of
“narcotic drugs,” “marihuana,” “anabolic steroid,” and “depressant or stimulant substance”
would be a job for a pharmaceutical chemist, but we need not do so because we review
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only the arguments Wysinger has presented and only to the extent necessary under the plain
error standard of review.
Wysinger first argues that we found Section 18.2-248 overbroad in Cucalon and
that conclusion applies here. In Cucalon, however, we compared all the Virginia controlled
substance schedules to all the federal schedules and concluded that the Virginia schedules
include “at least one substance not listed on the federal schedules.” 958 F.3d at 251. But
that is not our inquiry here. Rather, we are comparing Virginia Schedules I and II with the
Section 802 definitions of “narcotic drug,” “marihuana,” “anabolic steroid,” and
“depressant or stimulant substance.” 21 U.S.C. § 802(9), (16), (17), (41). So Cucalon does
not control.
Second, Wysinger zeroes in on purported variations between federal and Virginia
law concerning isomers of cocaine. 5 Virginia’s Schedule II includes “cocaine or any salt
or isomer thereof.” Va. Code Ann. § 54.1-3448(1) (2005) (emphasis added). Meanwhile,
Section 802(17)’s definition of “narcotic drug” includes “[c]ocaine, its salts, optical and
geometric isomers, and salts of isomers.” 21 U.S.C. § 802(17)(D) (emphasis added).
Wysinger contends that Virginia’s definition includes positional isomers of cocaine while
the federal definition does not, making the Virginia schedule fatally overbroad.
This argument falls significantly short of establishing plain error, as any mismatch
between the state and federal definitions is far from obvious. See United States v. Lester,
5 In his reply brief, Wysinger also mentions Virginia law regarding isomers of heroin, but he does not identify which Section 802 definition we should compare to Virginia’s definition of heroin. We therefore need not consider this belated argument.
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985 F.3d 377, 387 (4th Cir. 2021) (“An error is ‘plain’ if it is ‘clear or obvious, rather than
subject to reasonable dispute.’” (quoting Puckett v. United States, 556 U.S. 129, 135
(2009))). Even assuming that positional isomers of cocaine exist in the drug trade—a
debatable proposition—Wysinger offers no support for reading “any . . . isomer” in
Virginia law to include positional isomers of cocaine. 6 The only reference to positional
isomers in Schedule I or II is in reference to certain hallucinogenic substances. See Va.
Code § 54.1-3446(3); cf. 21 U.S.C. § 802(14) (including positional isomers only in
reference to hallucinogenics). Moreover, even if Virginia law did criminalize positional
isomers of cocaine, Wysinger has not answered the Government’s contention that those
isomers may nevertheless qualify as a “narcotic” or “stimulant” within other parts of the
federal definitions. In sum, Wysinger’s speculation about positional isomers of cocaine
fails to show that the district court plainly erred in not finding overbreadth on this ground.
We therefore affirm the district court’s determination that Wysinger’s Virginia conviction
was for a “felony drug offense” that supports application of the Section 841(b)(1)(C)
sentencing enhancement.
IV.
Finally, Wysinger contests application of the career-offender sentencing
enhancement. See U.S.S.G. § 4B1.1. We need not address the merits of his argument
because, even assuming error, the enhancement had no effect on his sentence.
6 This distinguishes the case on which Wysinger primarily relies, United States v. Ruth, 966 F.3d 642, 648 (7th Cir. 2020). The Illinois statute at issue there specifically defined “cocaine” as including its “optical, positional and geometric isomers.” Id. at 647 (internal quotation marks omitted).
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“A sentencing error is harmless if the resulting sentence was not longer than that to
which the defendant would otherwise be subject.” See United States v. Hargrove, 701 F.3d
156, 161 (4th Cir. 2012) (internal quotation marks and brackets omitted). In performing
harmless-error review, we may “assume that a sentencing error occurred and proceed to
examine whether the error affected the sentence imposed.” Id.
There is no doubt that the district court would have sentenced Wysinger to life
imprisonment even without the career-offender enhancement and that such a sentence
would be reasonable. See id. at 162. As previously discussed, Wysinger’s convictions on
Counts 3 and 4 subjected him to statutorily required life sentences. And his Guidelines
sentence, even without the career-offender designation, was imprisonment for life. Any
error in applying the career-offender enhancement was harmless.
AFFIRMED