Submitted: April 18, 2019
from United States District Court for the Western District of
Missouri - Kansas City
SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.
Tyrone Merritt pleaded guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). At sentencing, the district
court determined that Merritt's prior
conviction under 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and 846 for conspiracy to possess with intent to distribute
50 grams or more of cocaine qualified as a "controlled
substance offense." As a result, it calculated a base
offense level of 20 under United States Sentencing Guidelines
§ 2K2.1(a)(4)(A) (2016) and an advisory Guidelines range
of 46 to 57 months of imprisonment. The district court
sentenced Merritt to 46 months. Merritt appeals his sentence,
arguing that his prior drug conspiracy conviction is not a
controlled substance offense under the Guidelines.
reviewing a sentence for procedural error, "we review
the district court's construction and application of the
sentencing [G]uidelines de novo and its factual
findings for clear error." United States v.
Maldonado, 864 F.3d 893, 897 (8th Cir. 2017) (cleaned
up) (quoting United States v. Hagen, 641 F.3d 268,
270 (8th Cir. 2011)).
Guidelines define a controlled substance offense as "an
offense under federal or state law . . . that prohibits . . .
the possession of a controlled substance . . . with intent to
. . . distribute." USSG § 4B1.2(b). The commentary
states that a "'controlled substance offense'
include[s] the offenses of aiding and abetting, conspiring,
and attempting to commit such offense." USSG §
4B1.2(b), cmt. (n.1).
first argues that drug conspiracy convictions do not fall
within this definition because Note 1 cannot add conspiracy
offenses to the definition in § 4B1.2(b), which he
argues specifically omits inchoate offenses. This argument is
foreclosed by United States v. Mendoza-Figueroa, 65
F.3d 691 (8th Cir. 1995) (en banc), in which our en banc
court determined that conspiracy to commit a controlled
substance offense is itself a controlled substance offense as
defined by the Guidelines. See id. at 694. Our panel
may not overrule a decision of the en banc court. United
States v. Lucas, 521 F.3d 861, 867 (8th Cir. 2008).
argues in the alternative that, under the categorical
approach, § 846 conspiracy is broader than generic
conspiracy because it does not require an overt act. Because
Merritt did not raise this argument before the district
court, we review for plain error. See United States v.
Thomas, 886 F.3d 1274, 1275 (8th Cir. 2018). To succeed
on plain error review, Merritt must show (1) an error; (2)
that is plain; (3) that affects his substantial rights; and
(4) that seriously affects "the fairness, integrity, or
public reputation of judicial proceedings." United
States v. Boman, 873 F.3d 1035, 1040 (8th Cir. 2017)
(quoting United States v. Olano, 507 U.S. 725, 732
court has not yet considered whether courts must apply the
categorical approach to determine whether a conviction under
§ 846, a federal statute, qualifies as a controlled
substance offense. In analogous circumstances, our sister
circuits appear split as to whether it is necessary to
determine whether a federal conspiracy statute is a
categorical match for generic conspiracy. Compare United
States v. Rivera-Constantino, 798 F.3d 900, 903-04 (9th
Cir. 2015) (concluding there is no need to ascertain whether
§ 846 conspiracy is a categorical match for generic
conspiracy to determine that § 846 conspiracy qualifies
as a "drug trafficking offense" within the meaning
of USSG § 2L1.2); United States v.
Sanbria-Bueno, 549 Fed.Appx. 434, 438-39 (6th Cir. 2013)
(same); United States v. Rodriguez-Escareno, 700
F.3d 751, 753-54 (5th Cir. 2012) (same); with United
States v. McCollum, 885 F.3d 300, 305-09 (4th Cir. 2018)
(holding conspiracy to commit murder in aid of racketeering
under 18 U.S.C. § 1959(a)(5) is not a categorical match
for generic conspiracy and therefore not a "crime of
violence" within the meaning of USSG § 4B1.2(a));
United States v. Martinez-Cruz, 836 F.3d 1305,
1313-14 (10th Cir. 2016) (holding § 846 conspiracy is
not a categorical match for generic conspiracy and therefore
not a "drug trafficking offense" within the meaning
of USSG § 2L1.2). "[G]iven the lack of authority on
this issue in this circuit and a split in authority in other
circuits, even if there were error, it would not be plain or
obvious." United States v. Jordan, 877 F.3d
391, 396 (8th Cir. 2017).
Merritt cannot show any error "that is clear or obvious
under current law" he cannot satisfy the requirements of
plain error review. United States v. Lovelace, 565
F.3d 1080, 1092 (8th Cir. 2009). Accordingly, we affirm the
judgment of the district court.
The Honorable Beth Phillips, United
States District Judge for the Western District of