PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4796

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRYAN JAVON WILLIAMS,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:16-cr-00248-JFA-1)

Argued: January 29, 2021 Decided: May 13, 2021

Before DIAZ, FLOYD, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion in which Judge Diaz and Judge Harris joined.

ARGUED: Daniel Charles Leonardi, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Katherine Hollingsworth Flynn, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee. ON BRIEF: Peter M. McCoy, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. FLOYD, Circuit Judge:

Bryan Javon Williams pleaded guilty to being a felon in possession of a firearm in

violation of

(g)(1). At sentencing, the district court ruled that Williams

had two prior convictions for controlled substance offenses and accordingly imposed an

increased base offense level pursuant to section 2K2.1 of the U.S. Sentencing Guidelines

Manual. See U.S.S.G. § 2K2.1(a)(2). On appeal, Williams contends that one of his prior

convictions is not categorically a controlled substance offense, so the district court

improperly applied section 2K2.1(a)(2) when calculating his Guidelines range. Upon

review, we conclude that Williams’s prior conviction is categorically a controlled

substance offense. We therefore affirm the judgment of the district court.

I.

On October 8, 2019, Williams waived indictment and pleaded guilty to a one-count

criminal information, which charged him with being a felon in possession of a firearm in

violation of

(g)(1). The U.S. Probation Office prepared a presentence

investigation report (PSR) in advance of Williams’s sentencing hearing. Relevant here,

the PSR included two prior convictions involving controlled substances: (1) a February

2003 conviction for possession with intent to distribute crack cocaine in violation of section

44-53-375(B) of the South Carolina Code, and (2) an August 2003 conviction for

distribution of marijuana and distribution of crack cocaine in violation of sections 44-53-

370 and 44-53-375(B) of the South Carolina Code.

2 Williams’s February 2003 conviction—the prior conviction at issue in this

appeal 1—arose from an arrest in Lancaster County, South Carolina. The resulting state-

court indictment charged Williams with trafficking in crack cocaine in violation of section

44-53-375(C)(1)(A). According to the state-court sentencing sheet, Williams pleaded

guilty to possession with intent to distribute crack cocaine in violation of section 44-53-

375(B). Relevant to this appeal, the sentencing sheet also checks a box labeled “[l]esser

[i]ncluded [o]ffense.” J.A. 135.

The PSR classified Williams’s February 2003 and August 2003 convictions as

controlled substance offenses pursuant to section 2K2.1 of the Guidelines, triggering an

increased base offense level of twenty-four. See U.S.S.G. § 2K2.1(a)(2) (establishing a

base offense level of twenty-four for a defendant convicted of a § 922(g) offense who

previously “sustain[ed] at least two felony convictions of . . . a controlled substance

offense”). Williams did not receive any adjustments or enhancements to this base offense

level. His total offense level of twenty-four and criminal history category of five yielded

an advisory Guidelines range of 92 to 115 months of imprisonment.

At his sentencing hearing, Williams objected to the calculation of his base offense

level, arguing that his February 2003 conviction is not categorically a controlled substance

offense under the Guidelines. The district court overruled the objection, granted a one-

category criminal-history variance and a one-level offense-level variance, and sentenced

1 Williams concedes that his August 2003 conviction qualifies as a controlled substance offense under the Guidelines. 3 Williams to seventy months of imprisonment followed by a three-year term of supervised

release.

This appeal followed.

II.

On appeal, Williams challenges the district court’s ruling that his February 2003

conviction under section 44-53-375(B) for possession with intent to distribute crack

cocaine is a controlled substance offense under the Guidelines. This appeal therefore

presents a legal issue regarding the application of the Guidelines, which we review de novo.

See United States v. Dozier,

, 182–83 (4th Cir. 2017).

III.

A.

The Guidelines establish a base offense level of twenty-four for a defendant

convicted of a § 922(g) offense who previously “sustain[ed] at least two felony convictions

of . . . a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). The Guidelines define a

controlled substance offense as

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.

Id. § 4B1.2(b); see id. § 2K2.1 cmt. n.1 (incorporating the definition of a controlled

substance offense in section 4B1.2(b)).

4 The district court ruled that Williams’s February 2003 conviction under section 44-

53-375(B) is a controlled substance offense under the Guidelines. Section 44-53-375(B)

provides as follows:

A person who manufactures, distributes, dispenses, delivers, purchases, or otherwise aids, abets, attempts, or conspires to manufacture, distribute, dispense, deliver, or purchase, or possess with intent to distribute, dispense, or deliver . . . cocaine base . . . is guilty of a felony . . . .

(B). Just below the provisions setting forth the applicable

terms of imprisonment for defendants convicted under section 44-53-375(B), the statute

includes the following language: “Possession of one or more grams of . . . cocaine base is

prima facie evidence of a violation of this subsection.”

To determine whether a prior conviction qualifies as a controlled substance offense

under the Guidelines, we typically apply the “categorical approach.” United States v.

Furlow,

(4th Cir. 2019), vacated and remanded on other grounds,

(2020) (mem.). When applying the categorical approach, we “‘focus[] on the

elements, rather than the facts,’ of the prior offense.” United States v. Shell,

(4th Cir. 2015) (quoting United States v. Carthorne,

(4th Cir.

2013)). Accordingly, the categorical approach “address[es] only whether ‘the elements of

the prior offense . . . correspond in substance to the elements of’” a controlled substance

offense under the Guidelines. Furlow,

(second alteration in original)

(quoting United States v. Dozier,

(4th Cir. 2017)).

We apply a slightly different framework when we confront “‘divisible’ statutes, [or]

statutes that ‘list elements in the alternative[] and thereby define multiple crimes.” Dozier,

5

(second alteration in original) (quoting Mathis v. United States,

(2016)). In those circumstances, we use the “modified categorical approach.”

See Mathis, 136 S. Ct. at 2248–49. Under the modified categorical approach, we consider

“a limited class of documents to determine which of a statute’s alternative elements formed

the basis of the defendant’s prior conviction.” Descamps v. United States,

(2013). We then “compare those elements with the definition[] of . . . ‘controlled

substance offense.’” Furlow,

. If the elements align, then the defendant’s

conviction is categorically a controlled substance offense.

The documents on which

we rely—called “Shepard documents,” see Shepard v. United States,

(2005)—include “the state court indictment, a transcript of the plea colloquy in state court,

or a comparable state court record.” Furlow, 928 F.3d at 318–19.

B.

With those principles in mind, we turn our attention to Williams’s February 2003

conviction under section 44-53-375(B). In Furlow, we held that section 44-53-375(B) is a

divisible statute subject to the modified categorical approach. Id. at 320. Accordingly, we

must examine the available Shepard documents to determine the elements of Williams’s

offense of conviction under section 44-53-375(B). See id. at 318–19.

Here, the record contains two Shepard documents: the indictment and the

sentencing sheet. The indictment charged Williams with trafficking in crack cocaine in

violation of section 44-53-375(C)(1)(A). But Williams did not plead to trafficking as

charged in the indictment. According to the sentencing sheet, Williams pleaded guilty to

6 possession with intent to distribute crack cocaine in violation of section 44-53-375(B).

Because Williams pleaded guilty to an offense not charged in the indictment, “the

indictment becomes irrelevant for determining the crime of conviction.” United States v.

McLeod,

(4th Cir. 2015). Thus, the sentencing sheet is the only relevant

Shepard document in the record.

Williams’s sentencing sheet indicates that he pleaded guilty to possession with

intent to distribute crack cocaine in violation of section 44-53-375(B). Just below the

section that lists the offense and statute of conviction, the sentencing sheet contains a box

with a checkmark indicating that Williams pleaded guilty to a “[l]esser [i]ncluded

[o]ffense” of the offense charged in the indictment. J.A. 135. Williams contends that

possession with intent to distribute crack cocaine is not a lesser included offense of

trafficking under South Carolina law and thus that the sentencing sheet is ambiguous as to

the specific crime under section 44-53-375(B) to which he pleaded guilty. 2 Because

section 44-53-375(B) is a divisible statute that includes crimes that are not controlled

substance offenses, Williams maintains that his conviction under section 44-53-375(B)

cannot be a controlled substance offense.

We disagree. At sentencing, the government had the burden to prove Williams’s

prior crime of conviction by a preponderance of the evidence. See United States v.

Andrews,

(4th Cir. 2015). The government met its burden here. The

2 Williams did not advance this ambiguity argument before the district court. Nonetheless, as we explain below, we see no error—plain or otherwise—in the district court’s conclusion that Williams pleaded guilty to possession with intent to distribute crack cocaine in violation of section 44-53-375(B). 7 sentencing sheet clearly states that Williams pleaded guilty to possession with intent to

distribute crack cocaine in violation of section 44-53-375(B). A clerical error in the form

of an erroneously checked box does not suffice to refute the government’s showing that

Williams’s crime of conviction is the offense plainly spelled out on the sentencing sheet.

To be sure, we have recognized that “clerical errors reflect an uncomfortable reality

about the often-hurried system of pleas that makes up our criminal justice system.” United

States v. Young, --- F. App’x ---,

, at *3–4 (4th Cir. 2021). But we have

also declined to give such errors “much weight” in assessing a sentencing sheet’s reliability

as to a defendant’s crime of conviction.

(considering the effect of clerical errors on a

South Carolina sentencing sheet). We similarly decline to give much weight to the clerical

error here.

Accordingly, we conclude that Williams pleaded guilty to possession with intent to

distribute crack cocaine in violation of section 44-53-375(B).

C.

Finally, we consider whether possession with intent to distribute crack cocaine in

violation of section 44-53-375(B) is categorically a controlled substance offense. To

sustain a conviction for that offense, the state must prove beyond a reasonable doubt

“(1) [t]hat the substance involved was in fact crack cocaine; (2) [t]hat the defendant had

possession of that crack cocaine . . . ; and (3) [t]hat the defendant possessed the crack

cocaine with intent to distribute.” Ralph King Anderson, Jr., South Carolina Requests to

Charge – Criminal § 4-12 (2d ed. 2012); see also State v. James,

(S.C.

8 2004) (“Possession of any amount of controlled substance coupled with sufficient indicia

of intent to distribute will support a conviction for possession with intent to distribute.”).

Those elements correspond with the definition of a controlled substance offense under the

Guidelines. See U.S.S.G. § 4B1.2(b) (defining controlled substance offense in part as

“possession of a controlled substance . . . with intent to . . . distribute”); see also United

States v. Marshall,

, 151 (4th Cir. 2018) (“[T]he South Carolina offense

of possession with intent to distribute . . . matches the definition of a ‘controlled substance

offense’ under the career offender guideline.”).

Notwithstanding this categorical match, Williams contends that possession with

intent to distribute crack cocaine under section 44-53-375(B) falls outside the definition of

a controlled substance offense under the Guidelines. His argument rests on the following

language in the statute: “Possession of one or more grams of . . . cocaine base is prima facie

evidence of a violation of this subsection.”

(B). Williams

claims that this language permits a South Carolina jury to find “intent to distribute” based

on mere possession of crack cocaine, whereas the Guidelines do not treat possession of a

controlled substance alone as a controlled substance offense.

We disagree with Williams’s reading of the statute. As South Carolina’s appellate

courts have explained, section 44-53-375(B) “creates a permissive inference that

possession of more than one gram of crack cocaine constitutes possession with intent to

distribute.” State v. Robinson,

(S.C. Ct. App. 2001). And critically,

“[a] permissive inference does not relieve the State of its burden of persuasion because it

still requires the State to convince the jury that the suggested conclusion should be inferred

9 based on the predicate facts proved.” Francis v. Franklin,

(1985). Put

differently, the “intent to distribute” element “is not swept away by the existence of a

permissive inference.” United States v. Mohamed,

(1st Cir. 2019)

(examining a Maine statute with a permissive inference that possession of a certain quantity

of a controlled substance constitutes unlawful trafficking). Rather, in all cases, the state

retains the burden to show “sufficient indicia of intent to distribute” beyond a reasonable

doubt. State v. James,

(S.C. Ct. App. 2004).

The South Carolina pattern jury instructions support this reading of section 44-53-

375(B). The pattern instructions inform the jury that the statute “creates a permissive

inference that possession of one or more grams of crack cocaine constitutes possession

with intent to distribute.” King, supra, § 4-12. But the jury is entirely “free to accept or

reject [that inference] depending on [its] view of the evidence.” Id. Relying on authority

from South Carolina’s appellate courts, the pattern instructions further explain that the

phrase “prima facie evidence” may not be included in a jury charge. Id. (citing State v.

Andrews,

, 813–14 (S.C. Ct. App. 1996)).

Section 44-53-375(B)’s permissive inference therefore stands apart from a statutory

presumption, which arises when a “statute by its terms applies to those who do not intend

to distribute as long as they possess the requisite quantity.” United States v. Brandon,

(4th Cir. 2001) (holding that a conviction under a North Carolina statute,

which contains a statutory presumption that possession of a certain quantity of a controlled

substance constitutes unlawful trafficking, does not require proof of “intent to distribute”).

By contrast, a conviction for possession with intent to distribute crack cocaine under

10 section 44-53-375(B) requires “a jury [to] find distributive intent, whether it uses the

permissible inference or not.” See Mohamed,

.

In sum, we conclude that section 44-53-375(B)’s permissive inference does not

remove the “intent to distribute” element from Williams’s conviction for possession with

intent to distribute crack cocaine. We therefore hold that Williams’s February 2003

conviction under section 44-53-375(B) is categorically a controlled substance offense

under the Guidelines.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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