UNITED STATES v. JOBE (2020)

[Unpublished]

Gregory Jobe pleaded guilty to one count of distributing a controlled substance. See 21 U.S.C. § 841(a)(1). At sentencing, the district court ¹ calculated an advisory guideline range of 151 to 188 months’ imprisonment, and sentenced him to 180 months. Jobe argues that the district court committed procedural error by determining that he qualified as a career offender under USSG § 4B1.1. We conclude that there was no error and therefore affirm.

The district court determined that Jobe qualified as a career offender based on his prior Arkansas convictions for terroristic threatening and delivery of methamphetamine. A defendant is a career offender if he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” USSG § 4B1.1(a). A “controlled substance offense” includes an offense that “prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance.” USSG § 4B1.2(b). Application Note 1 to § 4B1.2 states that the terms “ ‘[c]rime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” USSG § 4B1.2, comment. (n.1).

Jobe contends that his prior conviction for delivery of methamphetamine in Arkansas is not a “controlled substance offense” because the offense encompasses attempted delivery of methamphetamine. See Ark. Code Ann. §§ 5-64-101(6), 5-64-422. Citing United States v. Havis, 927 F.3d 382, 387 (6th Cir. 2019) (en banc) (per curiam), and United States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018), he argues that the guideline commentary that purports to include attempt offenses is invalid, because it is inconsistent with the guideline and is not an interpretation of the guideline at all.

Jobe’s argument is foreclosed by several decisions of this court holding that Application Note 1 is valid and enforceable. United States v. Garcia, 946 F.3d 413, 417 (8th Cir. 2019); United States v. Merritt, 934 F.3d 809, 811 (8th Cir. 2019); United States v. Williams, 926 F.3d 966, 971 (8th Cir. 2019); United States v. Bailey, 677 F.3d 816, 818 (8th Cir. 2012) (per curiam); see also United States v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir. 1995) (en banc). Other circuits likewise have held that attempt offenses qualify as controlled substance offenses under the guidelines. United States v. Lange, 862 F.3d 1290, 1294-96 (11th Cir. 2017); United States v. Chavez, 660 F.3d 1215, 1226-28 (10th Cir. 2011). We note that the Sentencing Commission has published a proposed amendment to USSG § 4B1.2 that would resolve the disagreement among the circuits on this issue. See Sentencing Guidelines for United States Courts, 83 Fed. Reg. 65400, 65412-15 (proposed Dec. 20, 2018) (to be codified at USSG § 4B1.2).

For these reasons, there was no error in calculating the advisory guideline range, and the judgment is affirmed.

FOOTNOTES

1.   The Honorable Timothy L. Brooks, United States District Judge for the Western District of Arkansas.

PER CURIAM.