PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19
- 4725

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. JASON DIX , Defendant

- Appellant

. Appeal from the United States District Court for the District of South Carolina , at Columbia

. J. Michelle Childs , District Judge. ( 3:18

- cr - 00958

- JMC

- 1 )
Argued : December 9, 2022 D ecided: February 14, 2023

Before WILKINSON, NIEMEYER, and KING , Circuit Judges.

Affirmed by published opinion

. Judge Niemeyer wrote the opinion, in which Judge Wilkinson joined. Judge King wrote a separate opinion concurring in part and dissenting in part.

ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Lamar J. Fyall, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: M. Rhett DeHart, Acting United States Attorney , Charleston, South Carolina, Casey Rankin Smith, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 1 of 232 NIEMEYER, Circuit Judge, When a d eputy s heriff in Lexington County, South Carolin a, began to follow a vehicle because he thought the driver was behaving suspiciously , the vehicle sped away , fail ing to stop when the d eputy activated his patrol car ’s blue light and siren and leading the deputy on a high

- speed chase . After the vehicle cr ashed, the driver, identified as Jason Dix, was arrested and a firearm and ammunition were recovered from the front floorboard

o f the driver’s side of the vehicle. Dix pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S .C. § 922(g)(1), and the district court sentenced him to 99 months’ imprisonment. The 99

- month sentence included an enhancement under U.S.S.G. § 2 K 2.1(b)(6)(B) for the use or possession of the firearm “in connection with another felony offense,” namely fa il ure to stop for a blue light , in violation of S.C. Code Ann. § 56

- 5

- 750

. At sentencing , Dix objected to the enhancement on both procedural and substantive grounds

. F or his p rocedur al argument , he contended that he was not given the required notice of the enhancement because the p resentence r eport identified “another felony offense” as the basis for the enhancement, i.e. , grand larceny of the vehicle he was driving. Only at sentencing, when Di x advanced evidence that plac ed the larceny offense in doubt, did the government suggest that the court instead use the blue

- light offense for the enhancement. The district court accepted the suggestion and applied the enhancement based on Dix’s possessio n of a firearm in connection with t h e blue

- light offense.
F or his s ubstan tiv e argument , Dix contended that the firearm found in the vehicle he was driving was not “used” or “ possessed” “ in connection with ” t he blue

- light offense USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 2 of 233 because the firearm had n ot “facilitate d ” the offense, as required by Sentencing Guidelines

c ommentary. The government argu ed that the firearm “ emboldened ” Dix in his flight from the d eputy s heriff, and the district court agreed and applied the enhancement

. While we agree that Dix was not given the notice required by Federal Rule of Criminal Procedure 32 (d) , (f) and U.S.S.G. § 6A1.2, we conclude that the error was harmless in the circumstances of this case. W e also conclude that the district court did not clearly err in appl ying the enhancement by finding that the firearm was possess ed “in connection with” the blue

- light offense. Accordingly, we affirm.

I On June 8, 2018, Dix was at a gas station in Lexington County when Deputy Sheriff Michael Smith observed him and thought that he was behaving suspiciously. Because Deputy Smith could not see the license plate on Dix’s vehicle, he chose to follow the vehicle as it left the gas station. Dix sped away from Deputy Smith, a nd when Smith activated the blue light and siren on his patrol car, Dix failed to stop. Following a short, high

- speed chase, during which Dix’s vehicle reached the speed of 104 miles per hour and ran through two red lights, Dix e nded up crash ing into anot her vehicle. When Deputy Smith approached Dix’s crashed vehicle and ordered Dix to exit, Dix resisted, and Smith took him to the ground and handcuff ed him. Dix’s vehicle was then searched, and other deputies recovered a 9

- m illi m eter pistol on the f ront f loorboard of the driver’s side of the vehicle , along with two magazines loaded with ammunition. USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 3 of 234 The vehicle that Dix was driving belonged to Andrea Hair who , when contacted, told d eput ies that Dix did not have permission to drive the vehicle . She requested t hat charges be pressed against him for the theft of the vehicle. Dix maintained, however, that he had borrowed Hair’s vehicle with her permission. Dix was charged in state court with (1) grand larceny involving a value of $10,000 or more; (2) unlawful carrying of a pistol; (3) resisting arrest; (4) failure to stop for a blue light; (5) reckless driving; and (6) driving under suspension . A nd later , Dix was charged in federal court with possessi o n of a firearm by a felon , in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). While the four most serious state charge s remained pending, Dix pleaded guilty to the § 922(g)(1) federal offense

. The p resentence r eport prepared by the P robatio n O ffice for Dix’s sentencing determined that his base offense level was 24, based on his two prior convictions for controlled substance offenses. The r eport added four levels to the base offense level pursuant to U.S.S.G. § 2K2.1(b)(6)(B) on the ground t hat Dix “used and possessed a firearm and ammunition in connection with another felony offense

. ” While the p resentence

r eport described all six state offenses for which Dix had been charged (including the grand larceny and blue

- light offenses), it recomme nded basing the U.S.S.G. § 2K2.1(b)(6)(B) enhancement on Dix’s grand larceny of Hair’s vehicle . The r eport also added two levels under U.S.S.G. § 3C1.2 for Dix’s reckless endangerment while fleeing from a law enforcement officer

. Finally, it deducted three levels for Dix’s acceptance of responsibility, resulting in a tot al offense level of 27. When that offense level was combined with Dix’s criminal history of Category IV, the sentencing range recommended USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 4 of 235 by the Sentencing Guidelines was 100 to 125 months’ imprisonment, which was capped at 120 months’ imprisonment because of the 10

- year statutory maximum. See 18 U.S.C. § 924(a)(2). Before the sentencing hearing, Dix objected to the four

- level enhancement imposed under § 2K2.1(b)(6)(B) for usi ng or possessing a firearm in connection with another felony offense, arguing that he did not commit the identified offense of grand larceny because, as he claimed, he borrowed the vehicle with the owner’s permission. Again a t the sentencing hearing , Dix repeated his object ion to the four

- level enhancement , giving the same reason. He reiterated that he had Hair’s permission to borrow the car and suggested that Hair had claimed that the vehicle was stolen in order to limit her liability with the insurance company. He also noted that Hair did not report the vehicle as stolen until the deputies contacted her . While the government pushed back on Dix’s arguments, it also offered an “ alternate theory ” for application of the four

- level enhancement, suggesting , for the first time , that the court could use the blue

- light offense to support the enhancement. The government argued that Dix ’s possession of the firearm “embolden[ed] him to run from the police” and that because Dix knew he was not supposed to possess a firearm

— both because he was a felon and because he was on probation for a prior state offense

— the firearm contributed to his fleeing. In response to the government ’ s new alternate theory, Dix’s counsel stated to the court, “That’s the first I have heard of that theory. It’s not been entered in the p resentence

r eport or any other thing that’s been filed in this case.” Dix’s counsel then stated that h e still stood on his objection to the four

- level enhancement , arguing , “I don’t see how the USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 5 of 236 fact tha t a firearm was possessed in the vehicle, that certainly didn’t facilitate the failure to stop for police.” The parties’ argument s regarding the new theory span the next 20 pages of the sentencing hearing transcript. Dix’s counsel maintained that while p ossession of the firearm might have been a motive for Dix to flee, it did not “ facilitate ” the blue

- light offense , as required by the enhancement . He argued repeatedly that “motivate and facilitate
are two completely different concepts.” T he parties also discussed whether Dix’s blue

light offense was a felony in light of the fact that , as a first

- time offense, it was labeled as a misdemeanor under state law. See S.C. Code Ann. § 56

- 5

- 750( B )(1)

. All agreed, however, that the federal definition of a felony would control and that the blue

- light offense thus qualified as a felony because the maxim u m penalty for the violation was three years’ imprisonment. See id

. ; see also U.S.S.G. § 2K2.1 cmt. n.14( C ) (defining “ [ a ] nother felony offense” as an offense “punishable by imprisonment for a term exceeding one year”). At the end of the hearing , the district court said that whether Dix stole the vehicle or used it with permission “could kind of go either way ” given that the court was unable

“ to assess [Hair and Dix’s] credibility.” It then announced that it “agree [d] with [the government’s] alternative argument ” for appl ying the enhancement , based on the blue

- light offense . The court explained that the offens e was committed while Dix knew that he had a gun, “knowing he’s on probation, and I do believe that then that can facilitate why he is then committing a felony.” In s hort , the district court declin ed to find that the four

- level enhancement was warranted b y a grand larceny of fense , finding instead that the enhancement was warranted under the government’s new theory . I t thus overruled Dix’s objection to the enhancement

. USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 6 of 237 After a pplying the four

- level enhancement, the court a dopted the p resentence

r eport’s calculation that the Guidelines’ sentencing range was 100 to 120 months’ imprisonment and then downward ly depar t e d, imposing a sentence of 99 months’ imprisonment. From the district court’s judgment, Dix filed t his appeal, challenging only the fo ur level enhancement

. He does so on both procedural and substantive grounds

.

II Dix contends that the district court erroneously enhanced the Sentencing Guidelines’ recommendation for his sentence by adding four levels under U.S. S .G. § 2K2.1(b)(6)(B), which provides for the enhancement of a sentence for a firearm conviction when the firearm was “ used or possessed

. . . in connection with another felony offense.” He argues (1) that he was not given proper notice of the appli cation of the enhancement bas ed on the blue

- light offense and (2) that the evidence failed to show that his possession of the firearm “facilitated” his failure to stop for a blue light. He notes that without the enhancement, his Guidelines sentencing range of 100 to 120 months’ impri sonment would instead have been 70 to 87 months’ imprisonment. Accordingly, he requests that his 99

- month sentence be vacated and that his case be remanded for resentencing.

A Dix was first given notice at the sentencing hearing that the four

- level enhancement under § 2K2.1(b)(6)(B) might be applied based on his commission of the blue

- light USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 7 of 238 offense . While his p resentence r eport recommended application of the four

- level enhancement, it did so based on the a lleged grand larceny off ense , not the blue

- light offense . O nly when the grand larceny offense was called into doubt at the sentencing hearing did the government suggest that the court use the blue

- light offense instead . When the government presented th is alternative basis for t he enhancement , Dix’s counsel objected, noting that “ [ i ] t’s not been entered in the p resentence r eport or any other thing that’s been filed in this case.” He did not, however, request a postponement of the sentencing hearing or a revis ion of the p resenten ce r eport. Rather , he argued at some length that the blue

- light offense did not support the enhancement. Dix now requests that we vacate the sentence and remand for resentencing, arguing that the procedure that was followed violated Federal Rule of Crimi nal Procedure 32(d), U.S.S.G. § 6A1.2, and United States v. Hodge , 902 F.3d 420 (4th Cir. 2018). The Federal Rules of Criminal Procedure require th e preparation of a p resentence

r eport, which, among other things, must identif y all applicable Guidelines, calculate the offense level and state the advisory sentencing range, and identif y any factor relevant to the appropriate sentence within the applicable Guideline s range. See Fed. R. Crim. P. 32(d) (1) . Moreover, the defendant m ust be given the p resentence r eport “at least 35 days before sentencing,” id

. 32(e) (2) , t o allow for a dialogue with respect to any objections made and for any adjust ments to the p resentence r eport , “as appropriate,” id . 32(f). The Sentencing Guidelines p rovide similarly. See U.S.S.G. § 6A1.2. Moreover, § 6A1.3 provides that “the parties shall be given an adequate opportunity to present information to the court regarding” any disputed factor “important to the sentencing determination.” USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 8 of 239 U.S.S.G. § 6A1.3( a); see also Hodge , 902 F.3d at 427 (noting that defendants have “a right to adequate notice ” of an enhancement “to give the defendant an opportunity to contest” the enhancement and that such notice is “typically done . . . in the defendant’s [presentence report] ” (cleaned up) ). These provisions were not complied with in connection with the § 2K2.1(b)(6)(B) enhancement applied in this case for Dix’s possession of a firearm in connection with the blue

- light offense

. Again, t he p resentence r eport relied on grand larceny, rather than the blue

- light offense , to justify the enhancement . M oreover, the government did not object to the p resentence r eport , as required by Rule 32(f), on the ground that it should also identify the blue

- light offense as a b asis for the enhancement

. Therefore, w hen the government suggested at sentencing that the court could rely on the blue

- light offense, Dix had not been given the notice required by Rule 32(d) and U.S.S.G. § 6A1.2. This, we conclude, was procedural error. Dix contends that th is “ error [ was ] serious because it affect [ed] [his] liberty interest,” and he therefore requests that we vacate his sentence and remand for resentencing. H e ha s not , however, shown that the lack of notice prejudiced him in any
way . He did not at sentencing request a postponement or request that he be given a corrected p resentence r eport. And he has not , in his brief s on appeal or at oral argument , identified any additional act that he would have taken or procedure that he would have f

ollowed had he been notified in advance of the sentencing hearing that the blue

- light offense might be used to support the enhancement. He does argue on appeal that his firearm possession was not “in connection with” the blue

- light offense . But his argument USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 9 of 2310 in this regard is the same as the argument that he made at some length to the district court. Th us, th is is not a case where t he defendant was sentenced wi thout the opportunity to object and make arguments regarding the applicability of an enhancement

. See Hodge , 90 2 F.3d at 427 (articulating the right to adequate notice to give the defendant an opportunity to contest an enhancement).
In arguing that the pr ocedural error that occurred here warrants a new sentencing, Dix relies on Hodge , a case in wh ich we did order resentencing . But in Hodge , the defendant was indeed prejudiced by the failure to receive notice of a sentencing enhancement. T he defendant’s s entence in Hodge was enhanced under the Armed Career Criminal Act (“ACCA”) , based on three prior convictions that were identified in the
p resentence r eport. After the defendant was sentenced based on those three convictions, the Supreme Court issued an op inion that indicat ed that one of the prior convictions no longer qualified as an ACCA

- enhancing conviction . The defendant then raised that point

on collateral review with a motion under 28 U.S.C. § 2255, and the government responded by seeking , for the first time on collateral review , to substitute another qualifying offense. We rejected the government’s effort because the new offense had n ot been designated as an ACCA

- enhancing conviction before sentencing and thus the defendant had not been given noti ce of it as required by Rule 32(d). Because the new predicate offense was identified for the first time on collateral review, we reasoned that requiring a defendant to respond to a new basis for application of an enhancement in that context would “unfairl y deprive [the defendant] of an adequate opportunity to respond” because “[w]hereas at sentencing the Government has the burden of proving by a preponderance of the evidence” USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 10 of 2311 that the enhancement applies, “on collateral review the defendant has the burden of proving” that it does not. Id . at 429

– 30 (cleaned up)

. We therefore held “that the Government must identify all convictions it wishes to use to support a defendant’s ACCA sentence enhancement at the time of sentencing , ” Hodge , 902 F.3d at 430 (emphasi s added) , not “for the first time on collateral review,” id . at 429. Here, while Dix should have received notice earlier, he did receive notice before sentencing . And as a result, he had the “opportunity to contest the validity [ and ] applica bility ” of the enhancement based on the blue

- light offense before it was used in calculating his advisory sentencing range

. Hodge , 902 F.3d at 427 (cleaned up)

. Moreover, he has not identified any prejudice resulting from the untimeliness of the notice. He made every argument in the district court before sentencing that he now makes on appeal to
oppose basing the enhancement on the blue

- light offense , and he ha s identified no other argument or process that was foreclo sed and that could have help ed hi s position

. We have noted that “procedural errors at sentencing . . . are routinely subject to harmlessness review.” United States v. Lynn , 592 F.3d 572, 576 (4th Cir. 2010) (quoting Puckett v. United States , 556 U.S. 12 9, 141 (2009)); see also United States v. Davenport , 445 F.3d 366, 371 (4th Cir. 2006) (noting that the failure to provide notice as required by Rule 32(h) would be reviewed for harmless ness ), abrogated in part on other grounds by Irizarr y v. United States , 553 U.S. 708 (2008); United States v. Lockhart , 58 F.3d 86, 89 (4th Cir. 1995) (declining to remand , despite a Rule 32 violation , where the defendant “failed to show that the error would have affected his sentence”). USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 11 of 2312 Our good colleague in partial dissent asserts that be cause of the erroneous delay, “Dix [wa s ] actually prejudiced because he is now serving a 99

- month sentence , ” which is 12 months longer than a sentence that could be imposed “absent the four

- level enhancement. ” That p osition , however, i mplies that had there been no delay, Dix would not have received the 99

- month sentence. T hat conclusion , however, does not logically follow because the 99

- month sentence was grounded on the merits of the four

- level enhancement, not on the delay. In the circumstances of this case, the delay , as we explain, did not cause Dix any prejudice, and he has claimed none. W e therefore conclude that while the delayed notice was error, it was ha rmless error and therefore “must be disregarded

. ” Fed. R. Crim. P. 52(a). Accordingly , we reject Dix’s request that we order resentencing based on the p rocedural error .

B For his substantive argument challenging the district court’s application of § 2K2.1(b)(6)(B), Dix contends that his firearm possession was not sufficiently linked to the blue

- light offense to satisfy the requirements of the enhancement. The Sentencing Guidelines provide a four

- level enhancement fo r a firearm possession violation when the firearm wa s “ used or possessed

. . . in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). And the Application Notes to that section explain that a firearm is used

or possessed “in connection with” another felony offense when the firearm “facilitated, or had the potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1 cmt. n.14(A); see also United States v. Blount , 337 F.3d 404, 411 (4th Cir. 2003). USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 12 of 2313 We ha ve explained that the § 2K2.1(b)(6)(B) enhancement is designed to ensure that a defendant receives more severe punishment for a firearm offense when he “commits a separate felony offense that is rendered more dangerous by the presence of [the] firearm.” B lount , 337 F.3d at 406 (emphasis added) (discussing the prior iteration of the enhancement, then numbered as § 2K2.1(b)(5)). And w e have concluded that t he enhancement is satisfied when the firearm has “ ‘ some purpose or effect with respect to the other of fense, ’ including cases where a firearm is ‘ present for protection or to embolden the actor

. ’ ” United States v. Bolden , 964 F.3d 283, 287 (4th Cir. 2020) (emphasis added) (quoting United States v. Jenkins , 566 F.3d 160, 162 (4th Cir. 2009)). But we have also
not ed that the firearm “does not have the requisite purpose or effect when it is ‘present due to mere accident or coincidence.’” Id . (quoting Jenkins , 556 F.3d at 16 3 ). The standard for applying § 2K2.1(b)(6)(B) “is not especially burdensome.” Bolde n , 964 F.3d at 287. Moreover, a district court’s determination that the enhancement has been satisfied is a factual finding that is reviewed for clear error

. See Jenkins , 566 F.3d at 163. Under that standard of review, “we will not disturb the district court’s finding unless we are ‘left with the definite and firm conviction that a mistake has been

com m itted

. ’” I d . (quoting United States v. Dugg e r , 485 F.3d 236, 239 (4th Cir. 2007)). Dix argues that the firearm he possessed was not used either during the high

- speed chase or when he exited the vehicle and resisted arrest. Rather, he argues, his possession of the firearm “was merely accident or coincidence” in relation to his failure to stop for the blue light. While he implicitly acknowledges that his flight could have been “motivated” by his knowledge that h is possess i o n of a firearm was illegal , he emphasizes that the USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 13 of 2314 enhancement requires “ facilitation, ” not “ motivation. ” He does no t, however, dispute that the firearm was within arm ’ s reach while he was fleeing from law enforcement. The district court agreed with the government ’s argument at sentencing that the possession of the firearm emboldened Dix to flee, recognizing that firear m possession can embolden a defendant even when the defendant does not attempt to use the firearm. See , e.g. , Jenkins , 566 F.3d at 163

– 64 (relying in part on the fact that the firearm “was accessible and ready for use” in concluding that it could have emb oldened the defendant in connection with a simple drug possession offense). We cannot conclude, in the circumstances of this case, that the court clearly erred in finding that Dix possessed the firearm in connection with the failure to stop for the blue l ight. As in Jenkins , the court perceived that the firearm, which was lying at Dix’s feet within easy reach, could embolden Dix. Moreover , his blue

light offense was certainly rendered more dangerous by the nearby presence of the firearm. See Blount , 337 F.3d at 406. Accordingly, we affirm the district court’s application of the four

- level enhancement.

I II In sum, we conclude that the district court erred in relying on the blue

- light offense
to apply a § 2K2.1(b)(6)(B) enhancement when Dix received notice of that basis for the first time at the sentencing hearing

. B ut we also conclude that the error was, in the circumstances of this case , harmless. Finally, we conclude that the district court did not clearly err in applying the enhancement when the firearm was lying at Dix ’s feet while he failed to stop for a blue light . Accordingly, the judgment of the di strict court is USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 14 of 2315 AFFIRMED. USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 15 of 2316 KING, Circuit Judge, concurring in part and dissenting in part: Although I agree with my friends in the majority that a procedural error occurred in Jason Dix’s sentencing proceedings, I disagree with their ruling that the error is harmless. In my view, the procedural error is the fault of the prosecutors and has prej udiced Dix. I would therefore vacate Dix’s sentence and remand for resentencing.

I. There is a striking procedural similarity between the sentencing and appellate proceedings in this case. In each situation, the issue resolved was neither properly rai sed nor briefed in a timely manner. In the district court, Dix’s sentence was enhanced on a new and alternative theory

— supported by the so

- called “blue

- light offense”

— which was not identified in the PSR, was not noticed to Dix by the government, and w as never mentioned in any submission prior to sentencing (hereinafter the “blue

- light theory”). And in the appellate proceedings, the majority has resolved Dix’s appeal on another new and alternative theory

— that is, harmless error

— which was neither ti mely raised nor argued by its beneficiary, the government. Indeed, harmless error was first raised by our Court’s questioning during oral argument of Dix’s appeal in Richmond. As the majority explains, Dix pleaded guilty in January 2019 to the offense of possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g)(1). The PSR recommended a four

- level enhancement, pursuant to the Sentencing Guidelines, on the ground that the firearm was “used and possessed .

. . in connection wit h another felony offense.” See USSG § 2K2.1(b)(6)(B). Importantly, the PSR specified only two USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 16 of 2317 possible predicate offenses

— “Possession of a Stolen Vehicle or Grand Larceny”

— that could support the enhancement. See J.A. 160. 1 Although Dix timely obje cted to the proposed use of those predicates, the government made no objection at all to the PSR. See Fed. R. Crim. P. 32(f) (providing, in relevant part, that “[w]ithin 14 days after receiving the [PSR], the parties must state in writing any objections, including objections to material information .

. . [and] sentencing guideline ranges”). During Dix’s sentencing proceedings in September 2019, the district court promptly expressed doubt from the bench about whether either of the predicate offenses identified in the PSR would support the four

- level enhancement. When it became apparent that the enhancement was in serious jeopardy, the prosecutor asserted orally that a different predicate offense

— neither noticed nor mentioned in the PSR

— m ight support the PSR’s enhancement recommendation. The government then argued that, during his federal firearm offense, Dix had also committed the state law offense of failure to stop for a police car’s blue light, in violation of S.C. Code Ann. § 56

- 5

- 75 0. 2 In response to the prosecutor’s assertion, Dix’s lawyer advised the court that he had never “heard of” the blue

- light theory. See J.A. 62. Dix’s lawyer also advised the court that the tardy blue

- light theory had not “been entered in the [PSR] or an y other thing that’s been filed in this case.” Id.

1 Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by the parties in this appeal.

2 At the time the PSR was prepared, Dix had been charged with

— but not convicted of

— the blue

- light offense. See J.A. 145 (PSR notation th at blue

- light offense was pending in South Carolina state court). USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 17 of 2318 Nevertheless, the district court adopted the government’s blue

- light theory and applied the four

- level enhancement. Absent that enhancement, Dix’s final Guidelines range would have been 70 to 87 months in prison. As a result of the four

- level enhancement, however, Dix’s Guidelines range was 100 to 120 months. The court imposed on Dix a below

- Guidelines sentence of 99 months in prison. In this appeal, the majority has concluded that a procedural erro r for lack of timely notice occurred when the district court relied on the blue

- light theory to apply the four

level enhancement. As the majority explains, the Federal Rules of Criminal Procedure and the Guidelines “were not complied with in connection wi th the [Guidelines section] 2K2.1(b)(6)(B) enhancement applied in this case for Dix’s possession of a firearm in connection with the blue

- light offense .” See ante at 9. That is, “when the government suggested at sentencing that the court could rely on th e blue

- light offense [theory], Dix had not been given the notice required by Rule 32(d) and [Guidelines section] 6A1.2.” Id. Despite acknowledging the sentencing error, the majority rules that the error is harmless. The government did not, however, rais e or argue harmless error on appeal. Again, the harmless error issue was first raised by this Court

— sua sponte

— during oral argument.

II. I readily concur in the majority’s well

- reasoned assessment that a procedural error occurred in Dix’s sentenc ing proceedings. Nevertheless, as explained herein, I disagree that the error suffered by Dix was harmless beyond a reasonable doubt. USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 18 of 2319 A. Although the majority has recognized that harmless error review is applicable, see Fed. R. Crim. P. 52(a), it does not acknowledge that the burden rested on the government to show that the sentencing error suffered by Dix is harmless “beyond a reasonable d oubt,” see United States v. Stokes , 261 F.3d 496, 499 (4th Cir. 2001). More specifically, “the government must show that [the] error did not affect [Dix’s] substantial rights.” See United States v. Hargrove , 701 F.3d 156, 161 (4th Cir. 2012) (internal qu otation marks omitted). Inexplicably, the majority flips that burden on its head and rules today that it is Dix who must show prejudice. Not only is the majority’s approach incompatible with our precedent, it is troubling in these circumstances, given th e government’s failure to raise or address harmless error in any of its submissions. See generally United States v. Hall , 858 F.3d 254, 280 n.8 (4th Cir. 2017) (observing that government may waive harmless error contention “by failing to argue harmlessnes s in its brief” (citing Fed. R. App. P. 28(b))). B. Additionally, the majority has failed to properly assess the question of harmless error and explain how the government can be entitled to prevail by showing that the sentencing error is harmless beyond a reasonable doubt. My view that the government has failed to carry that burden has three solid bases. First, the majority fails to acknowledge that the government invited the sentencing error and then compounded that invited error. Second, the majority downplays the importance of our Court’s precedent that any predicate offense used to support a sentence enhancement must be timely noticed in the PSR. Finally, the majority ignores the fact that Dix has been prejudiced because he is now USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 19 of 2320 serving a prison sentence of 99 months. That is, Dix is likely serving a sentence that is at least 12 months longer than he would be serving absent the four

- level enhancement. I will expound briefly on those points. 1. First, the majority fails to acknowledge that, by not objecting to the PSR in a timely manner, the government invited the sentencing error. And it compounded that error by failing to take remedial steps during the sentencing proceedings to mitigate the prejudice suffered by Dix. For example, the majori ty highlights the fact that, after Dix first learned at the sentencing hearing that the prosecution would interpose its blue

- light theory to support the four

- level enhancement, Dix’s lawyer failed to move for a postponement of sentencing. Relatedly, the m ajority chastises Dix’s lawyer for failing to request a revised PSR. Those assertions, however, ignore the fact that it was the government

— which bore the burden

— that was obliged to seek a postponement of sentencing or a revised PSR. In other words, the obligations that were legally on the government have been turned upside down in this appeal and applied against Dix. In that regard, it is worth emphasizing the noble principle that the prosecution’s “interest .

. . in a criminal prosecution is not th at it shall win a case, but that justice shall be done.” See Berger v. United States , 295 U.S. 78, 88 (1935). Here, the government

— in pursuing its blue

- light theory

— failed to focus on its solemn obligation of ensuring that a criminal defendant receiv es a fair sentencing. The prosecutors focused solely on ensuring that Dix received the four

- level enhancement. Indeed, if the government had pursued either a postponement of Dix’s sentencing or a revised PSR, there would be no error at all for the majori ty to sua sponte deem harmless. USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 20 of 2321 2. Second, the majority downplays the fundamental due process principles enunciated by our Court in United States v. Hodge , 902 F.3d 420 (4th Cir. 2018), and United States v. Benton , 24 F.4th 309 (4th Cir. 2022). Hodge an d Benton stand for the proposition that a criminal defendant must be given adequate notice

— in the PSR

— of any predicate offense that could support a sentence enhancement. Yet the majority invokes harmless error and concludes that, because Dix’s lawyer had a brief opportunity during the sentencing hearing (without any preparation) to contest the blue

- light theory, the mandate for adequate notice to Dix of that theory is essentially irrelevant. A faithful reading of Hodge and Benton reveals the flaw of t hat prejudice analysis: the purpose of providing a defendant with adequate notice prior to sentencing is to afford him an opportunity to meaningfully contest the noticed issues, both before and during sentencing. See United States v. O’Neal , 180 F.3d 115 , 125

- 26 (4th Cir. 1999) (recognizing that a criminal defendant has “a right to adequate notice of the government’s plan to seek [an] enhancement .

. . and of the convictions” in support thereof). Moreover, in giving the government a “free pass” on ensur ing that Dix had adequate notice, the majority’s decision will be seriously problematic for the judiciary and for criminal defense lawyers moving forward. Despite Hodge and Benton , prosecutors can now simply raise new theories outside the PSR during the s entencing hearing and suffer no adverse consequences. That fact undermines what the experts and Congress had in mind in adopting the Rules of Criminal Procedure: protecting a criminal defendant’s due process rights during the sentencing process. See Uni ted States v. Curran , 926 F.2d 59, 61 (1st Cir. USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 21 of 2322 1991) (recognizing that Rule 32 “embodies the congressional intent to assure a defendant’s due process rights in the sentencing process”); United States v. Nappi , 243 F.3d 758, 763 (11th Cir. 2001) (same). 3. Third, the m ajority ignores the fact that Dix is actually prejudiced because he is now serving a 99

- month sentence

— that is, a sentence of at least 12 months more than he would likely be serving absent the four

- level enhancement. 3 In these circumstances, the four

l evel enhancement based on the blue

- light theory resulted wholly from the successful

— but erroneous

— last

- ditch effort of the government at sentencing. See J.A. 63

- 64 (the prosecutor’s acknowledgment during the sentencing hearing that “we don’t have any evidence of [the predicates specified in the PSR] which is why we are going under the alternate theory of failure to stop for a blue light”); id. at 81 (the district court’s acknowledgment that there was a lack of evidence as to the specified predicates an d the court’s agreement with the prosecutor’s “alternative argument” based on the blue

- light theory). Put most simply, the sentencing error recognized by the majority was an invited error attributable solely to the government. And the result of that invi ted error

— that Dix is now serving additional time in prison

— clearly impacts his substantial rights.

3 My determination that Dix is probably serving at least 12 additional months in federal prison is predicated on the fact that the district court accorded Dix a downward departure and impo sed a sentence of 99 months

— 12 months greater than the high end of his otherwise proper Guidelines range (70 to 87 months). With a proper Guidelines range of 70 to 87 months, a similar departure would result in a sentence of 69 months. In that event, D ix’s sentence would be 30 months less than the sentence he is serving. USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 22 of 2323 Surprisingly, the majority proclaims that “the 99

- month sentence was grounded on the merits of the four

- level enhancement, not on the delay.” See ante at 12. The majority then confoundingly reasons that “ the delay

. . . did not cause Dix any prejudice, and he has claimed none.” Id. As heretofore explained, Dix’s sentence was the direct consequence of the invited error that the majority readily identif ies. Had the blue

- light theory not been orally asserted

— in a tardy fashion

— by the prosecution at Dix’s sentencing, there would have been no basis for the four

- level enhancement. Accordingly, Dix is actually prejudiced because his 99

- month sentence is otherwise “longer than that to which [he] would .

. . be subject.” See Stokes , 261 F.3d at 499; see also Hargrove , 701 F.3d at 161 (recognizing that “[a] sentencing error is harmless if the resulting sentence was not longer than that to which the defenda nt would otherwise be subject” (internal quotation marks omitted)).

III. Because Dix has been prejudiced by the government’s failure to provide adequate notice of its intention to enhance his sentence on the basis of the blue

- light theory, I would
vacat e his sentence and remand for resentencing. With great respect, I dissent in part. USCA4 Appeal: 19-4725 Doc: 47 Filed: 02/14/2023 Pg: 23 of 23