US v. Jose Escobar-Lopez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cr-00808-MBS-11 Copies to all parties and the district court/agency. [999614656].. [14-4213]

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UNPUBLISHED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

Before GREGORY
Circuit Judge.

and

DIAZ,

Decided:

Circuit

Judges,

and

July 6, 2015

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jose
plea

Nicanor

agreement

Escobar-Lopez
to

pleaded

conspiracy

to

guilty

possess

pursuant

with

to

intent

a
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

sentenced Escobar-Lopez to 240 months’ imprisonment.

court

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,

Government

but

raising

proved

that

as

an

issue

Escobar-Lopez’s

for

review

1997

whether

California

the

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”
2

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,

steroids, or depressant or stimulant substances.”
802(44).

“[B]ecause

the

term

‘felony

drug

anabolic

21 U.S.C. §
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 &
3

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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

Escobar-Lopez’s

record

pro

se

in

this

supplemental

meritorious issues for appeal.
court’s

judgment.

case

This

and

brief

the
and

remainder
have

found

of
no

We therefore affirm the district

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.
motion

must

state

that

a

copy

Escobar-Lopez.

4

thereof

was

Counsel’s
served

on

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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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