Submitted: January 12, 2018
from United States District Court for the Eastern District of
Missouri - St. Louis
COLLOTON, BENTON, and ERICKSON, Circuit Judges.
BENTON, CIRCUIT JUDGE
J. Reid pled guilty to possessing heroin with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), and
being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2). The district
court increased his offense level based on two
prior Missouri convictions under section 195.211, RSMo 2002:
(1) attempted possession of a controlled substance with the
intent to deliver not more than five grams of marijuana, and
(2) delivery of not more than five grams of marijuana. Reid
requested a variance to a sentence of 51 to 63 months. The
district court disagreed, sentencing him to the bottom of the
Guidelines range-151 months' imprisonment. Reid appeals,
arguing his convictions are not for controlled substance
offenses, and that the sentence is substantively
unreasonable. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
argues that based on Missouri case law, his two convictions
do not meet the Guidelines definition of controlled substance
offense and thus cannot increase his offense level. As stated
in this court's decision in United States v.
Thomas, No. 17-2213 (8th Cir. Apr. _, 2018), this
did not raise his two other issues in the district court.
This court reviews them for plain error. See United
States v. Ruiz-Salazar, 785 F.3d 1270, 1272 (8th Cir.
2015) (per curiam). Under plain error review, "the party
seeking relief must show that there was an error, the error
is clear or obvious under current law, [and] the error
affected the party's substantial rights." United
States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011). If
these conditions are met, "the court of appeals has the
discretion to remedy the error-discretion which
ought to be exercised only if the error 'seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.'" Puckett v. United
States, 556 U.S. 129, 135 (2009) (alteration in
original) (internal citations omitted).
argues that the statute violated in his first conviction,
section 195.211, criminalizes "double attempt":
attempted possession of a controlled substance with
the intent to attempt to distribute. He concludes
that the statute would then criminalize conduct broader than
the Guidelines definition.
least act criminalized by section 195.211 is "an attempt
to distribute a controlled substance." Thomas,
slip op. at 5. Missouri requires, for a conviction under
section 195.211, that a defendant "knew" that the
substance he attempted to sell was a controlled substance and
did an act more than "the mere utterance of the offer
for sale." See State v. Sammons, 93 S.W.3d 808,
812 (Mo. App. 2002). Section 195.211 criminalizes an attempt
to commit a controlled substance offense within the
Guidelines definition. See §
4B1.2(b), incorporated by §
2K2.1, cmt. n.1; § 4B1.2, cmt.
appeal, relying on state-court documents, Reid and the
government agree that both of his convictions involved not
more than five grams of marijuana-a class C felony under
Missouri law. Reid argues that the United States Sentencing
Commission exceeded its authority under 28 U.S.C. §
994(h) by allowing his convictions to count as controlled
substance offenses, because they are "the functional
equivalent of misdemeanor drug possession cases" under
federal law. See21 U.S.C. §
841(b)(4) ("distributing a ...