                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4215


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

VALDIMERE RASHEEN RIVERS,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:18-cr-00599-RMG-1)


Submitted: January 21, 2020                                       Decided: January 23, 2020


Before WILKINSON, KEENAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kimberly H. Albro, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Christopher Braden
Schoen, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Valdimere Rasheen Rivers pled guilty to possession of a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2018), and the district

court sentenced him to 137 months’ imprisonment and 2 years’ supervised release. 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 questioning whether the district

court complied with Fed. R. Crim. P. 11 in accepting Rivers’ guilty plea and whether the

district court erred when it designated Rivers a career offender. Although advised of his

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

to file a response brief. 1 We affirm.

       Counsel first questions the validity of Rivers’ guilty plea. Before accepting a guilty

plea, the district court must conduct a colloquy in which it informs the defendant of, and

determines that he understands, the nature of the charges to which he is pleading guilty,

any mandatory minimum penalty, the maximum possible penalty, and the rights the

defendant is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v.

Williams, 811 F.3d 621, 622 (4th Cir. 2016).         The court also must ensure that the

defendant’s plea is voluntary and supported by an independent factual basis. Fed. R. Crim.

P. 11(b)(2), (3). Because Rivers did not move to withdraw his guilty plea or otherwise




       1
         Rivers’ plea agreement contained an appeal waiver. However, because the
Government has not moved to enforce the waiver, we may consider the issues raised by
counsel and conduct an independent review of the record pursuant to Anders. United States
v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).

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preserve any error in the plea proceedings, we review the adequacy of the plea colloquy

for plain error. Williams, 811 F.3d at 622. Our review of the transcript reveals that the

district court complied with the requirements of Rule 11, a factual basis supported the plea,

and Rivers’ plea was knowingly and voluntarily entered. Accordingly, Rivers’ guilty plea

is valid.

       Next, counsel questions whether the district court erred when it classified Rivers as

a career offender. To be classified as a career offender under the Sentencing Guidelines a

defendant must, among other factors, have sustained “at least two prior felony convictions

of either a crime of violence or a controlled substance offense.”            U.S. Sentencing

Guidelines Manual § 4B1.1(a) (2018). A “controlled substance offense” is “an offense

under federal or state law, punishable by imprisonment for a term exceeding one year, that

prohibits the manufacture, import, export, distribution, or dispensing of a controlled

substance . . . or the possession of a controlled substance . . . with intent to manufacture,

import, export, distribute, or dispense.” USSG § 4B1.2(b).

       When determining whether a prior conviction triggers a career offender

enhancement, we employ the categorical approach, “focus[ing] on the elements of the prior

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

F.3d 180, 183 (4th Cir. 2017) (internal quotation marks omitted). Where a state statute is

divisible, however, we apply the modified categorical approach. Mathis v. United States,

136 S. Ct. 2243, 2249 (2016). A statute is divisible if it “list[s] elements in the alternative,

and thereby define[s] multiple crimes.” Id. By contrast, a statute is not divisible if it merely

“enumerates various factual means of committing a single element.” Id. Under the

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modified categorical approach, courts review “a limited class of documents (for example,

the indictment, jury instructions, or plea agreement and colloquy) to determine what crime,

with what elements, a defendant was convicted of.” Id.

       Here, Rivers suggests that his prior convictions for violations of S.C. Code Ann.

§ 44-53-370 (2018) do not qualify as predicate controlled substance offenses. Section

44-53-370(a)(1) makes it unlawful for any person “to manufacture, distribute, dispense,

deliver, purchase, aid, abet, attempt, or conspire to manufacture, distribute, dispense,

deliver, or purchase, or possess with the intent to manufacture, distribute, dispense, deliver,

or purchase a controlled substance.” Rivers suggests that, because § 44-53-370 punishes

the mere purchase of controlled substances, it does not qualify as a controlled substance

offense under USSG § 4B1.2(b). The district court rejected this argument, applying the

modified categorical approach and finding that the state court documents established that

Rivers was convicted of possession with intent to distribute controlled substances, a

qualifying predicate offense.

       We review de novo a district court’s determination that a defendant’s prior

conviction qualifies as a career offender predicate. United States v. Furlow, 928 F.3d 311,

317 (4th Cir. 2019), pet. for cert. filed, __ U.S.L.W. __ (U.S. Dec. 19, 2019) (No. 19-7007).

In Furlow, we held that a similar South Carolina statute, S.C. Code Ann. § 44-53-375(B)

(2018) is divisible and subject to the modified categorical approach. Id. at 319-22 (citing

with approval United States v. Marshall, 747 F. App’x 139, 150 (4th Cir. 2018), cert.

denied, 139 S. Ct. 1214 (2019), in which we held that S.C. Code Ann. § 44-53-370(a)(1)

is divisible). As Furlow and Marshall recognized, under both statutes, South Carolina

                                              4
courts treat the purchase of a controlled substance as a distinct crime, prosecutors charge

one of the listed statutory alternatives in state indictments, and juries are typically

instructed to find one of the alternative elements beyond a reasonable doubt. Furlow, 928

F.3d at 320; Marshall, 747 F. App’x at 150.

       We agree with the district court that the South Carolina statute at issue here is

divisible and subject to the modified categorical approach. We have reviewed the Shepard 2

documents and conclude that the district court did not err in applying the career offender

enhancement. In any event, Rivers’ sentence does not reflect his career offender status;

the district court varied downward significantly to a 137-month sentence from an advisory

Sentencing Guidelines range of 262 to 327 months’ imprisonment.

       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 criminal judgment. This

court requires that counsel inform Rivers, in writing, of the right to petition the Supreme

Court of the United States for further review. If Rivers 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 Rivers.




       2
           Shepard v. United States, 544 U.S. 13 (2005).

                                              5
      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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