                                UNPUBLISHED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                       Decided:    July 6, 2015


Before GREGORY    and   DIAZ,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

       Jose   Nicanor      Escobar-Lopez          pleaded     guilty    pursuant       to    a

plea    agreement        to   conspiracy          to   possess        with    intent        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    court

sentenced Escobar-Lopez to 240 months’ imprisonment.                          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,    but     raising    as   an      issue   for    review      whether    the

Government       proved    that     Escobar-Lopez’s         1997      California   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”         used      in    § 841(b)(1)(A).

                                            2
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,      anabolic

steroids, or depressant or stimulant substances.”                   21 U.S.C. §

802(44).      “[B]ecause      the     term    ‘felony     drug    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
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   record        in       this    case     and    the        remainder      of

Escobar-Lopez’s       pro    se    supplemental            brief        and    have       found    no

meritorious issues for appeal.                    We therefore affirm the district

court’s   judgment.          This       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.                                     Counsel’s

motion    must       state    that           a    copy         thereof        was     served       on

Escobar-Lopez.




                                                  4
     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




                                   5
