United States of America v. Diqron Lamar Mask, a/k/a Jizzle Tramp

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DIQRON LAMAR MASK, a/k/a Jizzle
Tramp,
Defendant - Appellant.
No. 21-6076
(D.C. No. 5:20-CR-00177-J-1)
(W.D. Okla.)
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ORDER AND JUDGMENT*
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Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
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Petitioner Diqron Lamar Mask appeals his sentence, asserting that the district
court incorrectly calculated the sentencing guidelines range based on an improper
definition of “controlled substance.” Exercising jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742, we affirm.
I.
Oklahoma City police arrested Petitioner after responding to a rollover
accident and discovering a loaded, stolen firearm in his vehicle. A federal grand jury
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 2, 2022
Christopher M. Wolpert
Clerk of Court
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indicted Petitioner for being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). He pleaded guilty in February 2021.
The presentence investigation report (“PSR”) assigned Petitioner a base
offense level of 20 for a prior controlled substance conviction under U.S.S.G.
§ 2K2.1(a)(4)(A). Petitioner received a two-point increase under § 2K2.1(b)(4)(A)
for possession of a stolen firearm but a three-point reduction under § 3E1.1 for
acceptance of responsibility and assisting authorities, resulting in a total offense level
of 19. The PSR calculated Petitioner’s criminal history score as nine under U.S.S.G.
§§ 4A1.1 and 4A1.2. He received five points for prior convictions and two points for
commission of the instant offense while under a deferred sentence for burglary and
suspended sentence for possession of a firearm and a controlled substance with intent
to distribute. This score yielded a criminal history category of IV and a
recommended sentencing range of 46–57 months.
Petitioner objected to his base offense level and argued, as he does on appeal,
that his prior conviction for possession of a controlled substance does not qualify as a
“controlled substance offense” under U.S.S.G § 4B1.2(b). So, he argues, his base
offense level should have been 14 with a sentencing range of 18–24 months.
Petitioner also filed a sentencing memorandum that the district court construed as a
motion for downward variance. The court adopted the PSR without change, but
granted the downward variance due to Petitioner’s age, remorse, and “lack of
youthful guidance.” It issued a sentence of thirty-six months’ imprisonment with
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three years’ supervised release. Petitioner argues on appeal that the district court
incorrectly calculated his sentencing range and committed procedural error.
II.
We review the district court’s sentence for an abuse of discretion. United
States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011). In evaluating a sentencing
court’s alleged procedural error in calculating or explaining a sentence, we review
the court’s legal conclusions de novo and its factual findings for clear error. United
States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008).
Petitioner argues a U.S.S.G. § 4B1.2(b) controlled substance offense only
includes the federal definition of controlled substance set forth in Section 102 of the
Controlled Substances Act. See 21 U.S.C. § 802. He relies on our reasoning in
United States v. Cantu, 964 F.3d 924 (10th Cir. 2020). Petitioner recognizes our
holding in United States v. Jones, 15 F.4th 1288 (10th Cir. 2021), forecloses his
argument, but appeals “[i]n the event the law changes.”
We held in Jones that § 4B1.2(b), by its plain language, “necessarily applies to
and includes state-law controlled-substance offenses.” 15 F.4th at 1292. Petitioner
pleaded guilty in 2018 to possession of a controlled substance with intent to
distribute, a state-law controlled-substance offense, and received a seven-year
sentence “with all suspended except 6 months.” The PSR and the district court
properly considered this a “controlled-substance offense” for purposes of § 4B1.2(b)
and appropriately assigned Petitioner a base offense level of 20. The district court
relied on a correctly calculated PSR, considered the sentencing guidelines and 18
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U.S.C. § 3553(a) factors, and granted Petitioner a downward variance, sentencing
him to ten months fewer in prison than the minimum recommended by the guidelines
range. We find no procedural error in the district court’s sentence calculation and
determine it did not abuse its discretion in calculating Petitioner’s sentence.
AFFIRMED.
Entered for the Court
Joel M. Carson III
Circuit Judge
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