UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4213
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE NICANOR ESCOBAR-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, Senior
District Judge. (5:12-cr-00808-MBS-11)
Submitted: May 18, 2015 Decided: July 6, 2015
Before GREGORY and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James A. Brown, Jr., LAW OFFICES OF JIM BROWN, P.A., Beaufort,
South Carolina, for Appellant. John David Rowell, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Nicanor Escobar-Lopez pleaded guilty pursuant to a
plea agreement to conspiracy to possess with intent to
distribute and distribute 5 kilograms or more of cocaine and
1000 kilograms or more of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 846 (2012). The district court
sentenced Escobar-Lopez to 240 months’ imprisonment. On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for appeal, but raising as an issue for review whether the
Government proved that Escobar-Lopez’s 1997 California state
conviction for possession or purchase for sale of a narcotic
controlled substance is a felony drug offense for the purpose of
applying an enhanced sentence under 21 U.S.C. § 841(b)(1)(A).
Escobar-Lopez has filed a pro se supplemental brief in which he
questions whether his prior California conviction is a felony
drug offense, argues that his enhanced sentence violates
United States v. Simmons, 649 F.3d 237, 240-49 (4th Cir. 2011)
(en banc), and raises additional challenges to his conviction
and sentence. The Government declined to file a brief and does
not seek to enforce the appeal waiver in Escobar-Lopez’s plea
agreement. We affirm.
We review de novo the district court’s interpretation of
the term “felony drug offense” used in § 841(b)(1)(A).
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United States v. Burgess, 478 F.3d 658, 661 (4th Cir. 2007).
While section 841 of Title 21 of the United States Code does not
define the term “felony drug offense,” Section 802(44) does.
That section defines a “felony drug offense” as “an offense that
is punishable by imprisonment for more than one year under any
law of the United States . . . that prohibits or restricts
conduct relating to narcotic drugs, marihuana, anabolic
steroids, or depressant or stimulant substances.” 21 U.S.C. §
802(44). “[B]ecause the term ‘felony drug offense’ is
specifically defined in § 802(44), and § 841(b)(1)(A) makes use
of that precise term, the logical, commonsense way to interpret
‘felony drug offense’ in § 841(b)(1)(A) is by reference to the
definition in § 802(44).” Burgess, 478 F.3d at 662 (internal
quotation marks omitted).
Counsel and Escobar-Lopez question whether Escobar-Lopez’s
1997 conviction--for which he received a suspended prison
sentence and a three-year term of probation conditioned on the
service of 265 days in county jail--was punishable by
imprisonment for more than one year.
We conclude that the district court properly determined
that the 1997 conviction was a predicate felony drug offense
under § 841(b)(1)(A). The evidence before the court makes plain
that the conviction was for possession or purchase for sale of a
narcotic controlled substance, in violation of Cal. Health &
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Safety Code § 11351 (West 1996), and was punishable by up to
four years’ imprisonment. That Escobar-Lopez was given a
suspended prison term and probation with terms is of no legal
significance. See United States v. Kerr, 737 F.3d 33, 36, 39
(4th Cir. 2013), cert. denied, 134 S. Ct. 1773 (2014); United
States v. Williams, 508 F.3d 724, 730 (4th Cir. 2007).
Additionally, because Escobar-Lopez, and not some hypothetical,
worst-case offender, was eligible to receive a sentence of up to
four years’ imprisonment for the 1997 conviction, his enhanced
sentence under § 841(b)(1)(A) does not violate Simmons.
Further, in accordance with Anders, we have reviewed the
remainder of the record in this case and the remainder of
Escobar-Lopez’s pro se supplemental brief and have found no
meritorious issues for appeal. We therefore affirm the district
court’s judgment. This court requires that counsel inform
Escobar-Lopez, in writing, of the right to petition the Supreme
Court of the United States for further review. If Escobar-Lopez
requests that a petition be filed, but counsel believes that
such 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
Escobar-Lopez.
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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
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