United States v. Tracy Brown, Jr.

USCA4 Appeal: 23-4458 Doc: 33 Filed: 10/20/2025 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-4458

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TRACY LORENZO BROWN, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at

Richmond. Robert E. Payne, Senior District Judge. (3:22-cr-00134-REP-1)

Submitted: September 30, 2025 Decided: October 20, 2025

Before RICHARDSON and BENJAMIN, Circuit Judges, and TRAXLER, Senior Circuit

Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Nia

Ayanna Vidal, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Richmond, Virginia, for Appellant. Jessica D. Aber, United States Attorney,

Jacqueline R. Bechara, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Tracy Lorenzo Brown, Jr., pled guilty, without a plea agreement, to possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession with

intent to distribute methamphetamine, fentanyl, cocaine, and cocaine base, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C). The district court classified Brown as a career

offender and sentenced him to 155 months’ imprisonment. Brown appeals, and we affirm.

On appeal, Brown challenges his career offender classification by relying on United

States v. Campbell, 22 F.4th 438, 441-44 (4th Cir. 2022) (holding that West Virginia

offense of delivery of crack cocaine, which defined “delivery” to include “attempted

transfer,” was not a “controlled substance offense” under the Sentencing Guidelines).

Brown contends that his prior drug convictions under Va. Code Ann. §§ 18.2-248, 18.2-

248.1, do not categorically qualify as controlled substance offenses under U.S. Sentencing

Guidelines Manual § 4B1.2(b) (2021) because—unlike that operative version of the

Guidelines Manual—the statutes cover attempt offenses.

The Government contends that United States v. Groves, 65 F.4th 166 (4th Cir.

2023), controls. In Groves, we distinguished the federal drug distribution statute,

21 U.S.C. § 841(a)(1), on the ground that “the West Virginia scheme—at least as it was

presented in Campbell—does not criminalize attempt offenses separately from completed

drug distribution offenses.” 65 F.4th at 173. Because the federal scheme criminalizes

attempt offenses separately in 21 U.S.C. § 846, we reasoned that “to construe § 841(a)(1)

to criminalize an attempt offense would render § 846 wholly superfluous.” Id. at 173-74

(citation modified). We thus explained that “an ‘attempted transfer’” under the federal

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distribution statute is properly viewed “as a completed delivery rather than an attempt

crime.” Id. at 172 (citation modified).

We held this appeal in abeyance for United States v. Nelson, __ F.4th __, __, 2025

WL 2372029, at *4 (4th Cir. Aug. 15, 2025), where we recently confirmed that Va. Code

Ann. § 18.2-248 remains a proper career offender predicate. As we explained,

Since Groves, we have rejected similar efforts to analogize state drug

distribution statutes to Campbell’s West Virginia statute, on the ground that

each of those states has a statutory scheme—like the federal scheme

involving § 841(a)(1) and § 846 at issue in Groves, and unlike the West

Virginia scheme as it was presented in Campbell—that criminalizes attempt

offenses separately from completed offenses.

Id. (collecting cases). Because “Virginia also has a scheme that criminalizes attempt

offenses separately from completed offenses and that is materially indistinguishable from

the state and federal schemes analyzed in Groves and its progeny,” see id., Nelson confirms

that Brown’s Virginia convictions are proper predicates for his challenged career offender

enhancement. *

Accordingly, the district court did not err by sentencing Brown as a career offender.

We therefore affirm the criminal judgment. 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

*

Our analysis in Nelson concerning Va. Code Ann. § 18.2-248 applies with equal

force to Brown’s conviction under Va. Code Ann. § 18.2-248.1.

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