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United States v. Reid

United States Court of Appeals, Eighth Circuit

April 10, 2018

United States of America Plaintiff- Appellee
v.
Robert J. Reid Defendant-Appellant

          Submitted: January 12, 2018

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before COLLOTON, BENTON, and ERICKSON, Circuit Judges.

          BENTON, CIRCUIT JUDGE

         Robert 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[1] 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.

         I.

         Reid 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 argument fails.

         II.

         Reid 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).

         A.

         Reid 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.

         The 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. n.1.

         B.

         On 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 ...


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