USCA4 Appeal: 22-4712 Doc: 30 Filed: 08/29/2024 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4712

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRODUS BERNARD GREGG,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Sherri A. Lydon, District Judge. (4:21-cr-00389-SAL-8)

Submitted: June 21, 2024 Decided: August 29, 2024

Before WILKINSON, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: James A. Brown, Jr., LAW OFFICES OF JIM BROWN, PA, Beaufort, South Carolina, for Appellant. Kathleen Michelle Stoughton, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4712 Doc: 30 Filed: 08/29/2024 Pg: 2 of 4

PER CURIAM:

Brodus Bernard Gregg was convicted after a jury trial of conspiracy to possess with

intent to distribute and to distribute 500 grams or more of cocaine, in violation of

(a)(1), (b)(1)(B), 846, and the district court sentenced him to 144 months’

imprisonment and 4 years of supervised release. On appeal, Gregg’s counsel has filed a

brief pursuant to Anders v. California,

(1967), stating that there are no

meritorious grounds for appeal, but raising as an issue for review whether the district court

plainly erred under Ruan v. United States,

(2022), in failing to instruct the

jury that the Government had to prove Gregg knew the type and weight of the controlled

substance that was the object of the conspiracy. Gregg was informed of his right to file a

pro se supplemental brief, but he has not done so. The Government declined to file a brief.

We affirm.

Because Gregg did not make this argument grounded in Ruan in the district court,

our review is for plain error. United States v. Ravenell,

(4th Cir. 2023),

cert. denied,

(2024). To prevail under this standard, Gregg “must show

that the court’s jury instructions included an error that was clear and obvious, and that the

error affected his substantial rights, meaning that it affected the outcome of the district

court proceedings.”

(internal quotation marks omitted). An error is plain when, “at the

time of appellate consideration,” the “settled law of the Supreme Court or this circuit

establishes that an error has occurred.” United States v. Ramirez-Castillo,

(4th Cir. 2014) (internal quotation marks omitted).

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We conclude that Gregg has failed to show clear or obvious error under Ruan.

Under

(a)(1), it is unlawful, “[e]xcept as authorized,” for any person to

“knowingly or intentionally . . . distribute, or dispense, or possess with intent

to . . . distribute, or dispense, a controlled substance.” In Ruan, the Supreme Court held

that § 841’s “knowingly or intentionally” mens rea applies to the “[e]xcept as authorized”

clause of the statute.

. Thus, when a defendant produces evidence

that he could dispense controlled substances, “the Government must prove beyond a

reasonable doubt that the defendant knew that he . . . was acting in an unauthorized

manner, or intended to do so.”

. Gregg, however, was not convicted of violating

§ 841 based on evidence he could distribute or possess with intent to distribute controlled

substances but did so in an unauthorized manner.

Counsel also suggests that the interplay between

and the penalty

provision of

(a) at

(b) supports his argument that the mens

rea requirement of § 841(a)(1) applies to all objects of the conspiracy, such as the type and

weight of the drugs at issue. This, however, is not the law of this circuit, see United

States v. Briscoe,

(4th Cir. 2024), and Ruan does not change that.

Gregg, we conclude, fails to show that the settled law establishes the district court erred in

failing to instruct the jury as he suggests it should have.

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

have found no meritorious grounds for appeal. We therefore affirm the criminal judgment.

This court requires that counsel inform Gregg, in writing, of the right to petition the

Supreme Court of the United States for further review. If Gregg requests that a petition be

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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 Gregg.

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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