UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4950

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LARRY EDWARD CARTER, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:18-cr-00257-DCN-1)

Submitted: March 31, 2021 Decided: April 22, 2021

Before MOTZ, FLOYD, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jeremy A. Thompson, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Peter M. McCoy, Jr., United States Attorney, Nathan S. Williams, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Larry Edward Carter, Jr., appeals the 151-month sentence imposed following his

guilty plea to possession with intent to distribute a quantity of heroin, in violation of

(a)(1), (b)(1)(C). The district court sentenced Carter as a career offender

based on a prior South Carolina conviction for distribution of crack cocaine in proximity

of a school, in violation of

(2000), and a federal conviction

for possession of a firearm in furtherance of a drug trafficking crime. On appeal, Carter

contends that the court erred in sentencing him as a career offender because his South

Carolina conviction does not categorically qualify as a controlled substance offense. We

affirm.

We review de novo the district court’s determination that Carter’s prior conviction

qualifies as a controlled substance offense under the Sentencing Guidelines. See United

States v. Allen,

(4th Cir. 2018). “Generally, we use the categorical

approach when assessing whether a state crime constitutes a . . . controlled substance

offense under the Guidelines.” United States v. Furlow,

(4th Cir. 2019)

(internal quotation marks omitted), vacated on other grounds,

(2020).

Under this method, we examine the elements of the defendant’s prior offenses—rather than

the facts underlying the conviction or the defendant’s actual conduct—to determine

whether they correspond with the elements of the generic predicate. Mathis v. United

States,

(2016). In certain limited circumstances, however, we may

modify the categorical approach to determine whether a prior conviction serves as a

predicate for enhancement.

. Under this modified categorical approach, “when

2 a state statute is divisible (i.e., specifies elements in the alternative, thereby defining

multiple offenses),” Furlow,

, a court may examine certain court records or

documents to determine which version of the crime a defendant was convicted of

committing, United States v. McLeod,

(4th Cir. 2015).

Carter contends that

is indivisible and that, because the

statute is overbroad, his prior conviction is not a controlled substance offense for purposes

of U.S. Sentencing Guidelines Manual §§ 4B1.1(a), 4B1.2(b) (2018). However, we have

previously explained that

“set[s] forth alternative elements

constituting separate crimes” and, therefore, is divisible and subject to the modified

categorical approach. United States v. Marshall,

, 149-50 (4th Cir. 2018)

(No. 16-4594) (argued but unpublished); see Furlow,

-22 (citing with

approval Marshall and holding that

(B) similarly is subject to

the modified categorical approach).

We therefore conclude that the modified categorical approach applies to Carter’s

prior conviction under

. Carter does not dispute that, under

this approach, his conviction qualifies as a controlled substance offense under USSG

§ 4B1.2. Accordingly, we affirm the district court’s 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

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