USCA4 Appeal: 22-4468 Doc: 41 Filed: 02/02/2024 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4468

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD TODD FRADY,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:21-cr-00054-MR-WCM-1)

Submitted: January 30, 2024 Decided: February 2, 2024

Before KING, AGEE, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: David Q. Burgess, DAVID BURGESS LAW, PC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4468 Doc: 41 Filed: 02/02/2024 Pg: 2 of 4

PER CURIAM:

Richard Todd Frady pled guilty to possession with intent to distribute a mixture and

substance containing more than 50 grams of actual methamphetamine, in violation of

(a)(1), (b)(1)(A). The district court sentenced him to 240 months’

imprisonment, a downward variance from the 262- to 327-month career offender advisory

Sentencing Guidelines range. Frady appealed.

Frady’s counsel has filed a brief pursuant to Anders v. California,

(1967), stating that he found no meritorious grounds for appeal but challenging Frady’s

career offender designation. Counsel for Frady argues that the district court erred by

applying the modified categorical approach to find that Frady’s prior North Carolina

convictions under

(a)(1) * qualified as controlled substance offenses

for purposes of career offender designation and asserts that these prior offenses

categorically do not qualify as career offender predicates. Frady was advised of his right

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

to file a response brief. For the reasons that follow, we affirm.

Generally, to determine whether a prior offense qualifies as a crime of violence, the

sentencing court must apply the categorical approach. United States v. Ward,

, 368-69 & n.2 (4th Cir. 2020). This “approach focuses on the elements of the prior

offense rather than the conduct underlying the conviction.” United States v. Dozier, 848

* This provision makes it “unlawful for any person . . . [t]o manufacture, sell, or deliver, or possess with intent to manufacture, sell, or deliver, a controlled substance.”

(a)(1).

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(4th Cir. 2017) (internal quotation marks omitted). The sentencing court

may, however, apply a modified categorical approach—permitting reliance on a limited

class of documents to determine the elements of the defendant’s specific crime—to a

“divisible” statute that lists elements in the alternative to define multiple crimes. Mathis v.

United States,

(2016).

We recently held that

(a) “is a categorical match” with the

Guidelines’ definition of a controlled substance offense. United States v. Miller,

(4th Cir. 2023). Because Frady’s prior North Carolina convictions

categorically qualify as predicate career offender offenses, the district court’s application

of the modified categorical approach to reach the same conclusion amounts to harmless

error. Cf. United States v. Doctor,

(4th Cir. 2020) (holding that vacatur

of sentence for Guidelines error is unnecessary where error is harmless).

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

found no meritorious issues for appeal. We therefore affirm the district court’s judgment.

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

Supreme Court of the United States for further review. If Frady 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 Frady. We dispense with oral argument because the facts

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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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