US v. Michael Dozier

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:14-cr-00079-MSD-TEM-1 Copies to all parties and the district court/agency. [999755138].. [15-4293]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4293

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL ANTONIO DOZIER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Mark S. Davis, District
Judge. (4:14-cr-00079-MSD-TEM-1)

Submitted:

January 29, 2016

Decided:

February 16, 2016

Before AGEE, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Suzanne V. Katchmar, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Kaitlin Courtney Gratton,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael Dozier pled guilty to being a felon in possession
of a firearm.

He received an 84-month sentence.

On appeal,

counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), raising three claims but asserting that there
are no meritorious grounds for appeal.

Although informed of his

right to do so, Dozier has not filed a supplemental brief.
Government declined to file a response.

The

We affirm.

Counsel first contends that Dozier’s plea was not knowing
and voluntary because the district court did not inquire at the
Fed. R. Crim. P. 11 hearing whether Dozier understood that he
was waiving his right to present evidence and to testify on his
own behalf.

See Fed. R. Crim. P. 11(b)(1)(E).

Because Dozier

did not move to withdraw his plea, we review this claim for
plain error.
Cir. 2002).

United States v. Martinez, 277 F.3d 517, 525 (4th
Here, we find no plain error, as the district court

substantially
plea.
that

complied

with

Rule

11

when

accepting

Dozier’s

Given no indication to the contrary, we therefore find
the

plea

was

final and binding.

knowing

and

voluntary,

and,

consequently,

See United States v. Lambey, 974 F.2d 1389,

1394 (4th Cir. 1992).
Counsel also questions whether the sentence is procedurally
reasonable in two respects.

First, counsel claims that Dozier’s

offense level may have been improperly calculated under U.S.
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Sentencing Guidelines Manual § 2K2.1(a)(2) (2014) because one of
the prior drug convictions used to enhance the sentence was for
distributing an imitation controlled substance.
questions

an

enhancement

possession

of

a

under

firearm

in

USSG

Second, counsel

§ 2K2.1(b)(6)(b)

connection

with

another

for

felony

offense.
We review a sentence for reasonableness, applying an abuse
of discretion standard.
(2007).

Gall v. United States, 552 U.S. 38, 46

This court first reviews the sentence for significant

procedural error, and if the sentence is free from such error,
it

then

considers

sentence.

the

substantive

reasonableness

of

the

Id. at 51.

Because Dozier did not object to the use of the imitation
distribution conviction in calculating his sentence, we review
for plain error whether the court procedurally erred in this
regard.

United

States

v.

Olano,

507

U.S.

725,

732

(1993);

United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010).

We

conclude that the district court did not procedurally err in
applying the USSG § 2K2.1(a)(2) enhancement.

There was no plain

error in treating distribution of an imitation substance as a
conviction for distribution of a counterfeit substance under the
Guidelines.

See United States v. Mills, 485 F.3d 219, 222 (4th

Cir. 2007) (Maryland conviction for possession with intent to

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distribute

a

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look-alike

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controlled

substance

qualifies

under

USSG § 2K2.1(a)(2) as a counterfeit substance).
Finally,
enhancement
another

Dozier
for

felony

marijuana.

claims

possessing

error
the

in

receiving

firearm

in

with

intent

offense—possession

See USSG § 2K2.1(b)(6)(B).

a

four-level

connection
to

with

distribute

Under the Guidelines,

the “in connection with” requirement is satisfied where “in the
case of a drug trafficking offense in which a firearm is found
in close proximity to the drugs, . . . application of [the
enhancement] is warranted because the presence of the firearm
has the potential of facilitating another felony offense.

USSG

§ 2K2.1 cmt. n.14(B); see also United States v. Jenkins, 566
F.3d 160, 163 (4th Cir. 2009).
No clear error is apparent from the record.

The facts

sufficiently supported that the half ounce of marijuana packaged
in

10

separate

small

baggies,

alongside

$350

in

cash

and

a

loaded firearm, both also found on Dozier’s person, was intended
for

distribution.

Thus,

the

enhancement

under

USSG

§ 2K2.1(b)(6)(B) was appropriate.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious issues for
appeal.

We therefore affirm Dozier’s conviction and sentence.

This court requires that counsel inform Dozier, in writing, of
the right to petition the Supreme Court of the United States for
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further review.

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If Dozier 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 Dozier.

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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