United States Court of Appeals
For the Eighth Circuit
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No. 20-1502
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United States of America
Plaintiff - Appellee
v.
Vernon Montrell Webster, also known as Webster Connell Spunky, Jr., also known
as Tracy Connell Webster, Jr., also known as Alfred Connell Gage, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Eastern
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Submitted: March 15, 2021
Filed: April 23, 2021
[Unpublished]
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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Vernon Montrell Webster pleaded guilty to being a felon in possession of a
firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court 1 originally
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The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
sentenced Webster to 180 months’ imprisonment because it determined he was an
armed career criminal under 18 U.S.C. § 924(e). Webster appealed, challenging his
armed-career-criminal designation. United States v. Webster, 730 F. App’x 396, 397
(8th Cir. 2018) (per curiam). We ultimately reversed this designation, vacating the
sentence and remanding to the district court for resentencing without the armed-
career-criminal enhancement. United States v. Webster, 784 F. App’x 975, 975 (8th
Cir. 2019) (per curiam). On remand, the district court determined that Webster’s
1998 felony conviction for possession of cocaine with intent to “manufacture,
distribute or deliver,” see Wis. Stat. § 961.41(1m)(cm)(1) (1998), was a “controlled
substance offense,” see U.S.S.G. § 4B1.2(b) & cmt. n.1, requiring a base offense
level of 20, see U.S.S.G. § 2K2.1(a)(4)(A) & cmt. n.1. It then calculated a total
offense level of 23 and a criminal-history category of VI, yielding an advisory
sentencing guidelines range of 92 to 115 months’ imprisonment, and it sentenced
Webster to 115 months’ imprisonment. Webster again appeals his sentence, arguing
that the district court procedurally erred by concluding his 1998 Wisconsin drug
conviction was a “controlled substance offense” for the purpose of determining his
base offense level in calculating his guidelines range.2 We affirm.
“When reviewing a defendant’s sentence, we must ensure that the district
court committed no significant procedural error,” such as improperly calculating the
guidelines range. United States v. Maldonado, 864 F.3d 893, 897 (8th Cir. 2017).
In reviewing for procedural error, we review the district court’s interpretation and
application of the guidelines de novo. Id. Whether a prior conviction qualifies as a
“controlled substance offense” under § 4B1.2(b) involves the interpretation and
application of the guidelines, so we review this issue de novo. See United States v.
Williams, 926 F.3d 966, 969 (8th Cir. 2019).
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The Government contends that Webster either waived or forfeited the
argument he raises on appeal. We decline to address either contention because
Webster’s argument fails on the merits. See United States v. Hyles, 479 F.3d 958,
966 (8th Cir. 2007); United States v. Richardson, 238 F.3d 837, 841-42 (7th Cir.
2001).
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Webster’s argument on appeal proceeds in three steps. First, he asserts that
whether his 1998 Wisconsin drug conviction was a “controlled substance offense”
is governed by the categorical approach, under which we ask whether “the state
statute defining the crime of conviction categorically fits within the . . . federal
definition” of “controlled substance offense.” See Maldonado, 864 F.3d at 897.
Under this approach, “[i]f the state offense sweeps more broadly, or punishes more
conduct than the federal definition,” the state offense is not a § 4B1.2(b) controlled
substance offense. See United States v. Vanoy, 957 F.3d 865, 867 (8th Cir. 2020).
Second, he points out that the statute of conviction for his 1998 Wisconsin drug
offense criminalizes, among other things, “[p]ossession with intent to . . . deliver”
cocaine, see Wis. Stat. § 961.41(1m)(cm) (1998), and that “[d]eliver” is defined to
include “attempted transfer,” Wis. Stat. § 961.01(6) (1998), meaning the statute
criminalizes inchoate offenses. Third, he argues that this fact renders his 1998
Wisconsin drug conviction categorically overbroad (such that the conviction should
not have triggered a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A))
because § 4B1.2(b) “presents a very detailed ‘definition’ of controlled substance
offense that clearly excludes inchoate offenses.” See United States v. Winstead, 890
F.3d 1082, 1091 (D.C. Cir. 2018). Webster acknowledges that Application Note 1
to § 4B1.2(b) includes inchoate offenses such as attempting to commit a “controlled
substance offense” within the definition of that term, but he argues that this
application note is not binding because it is “inconsistent with, or a plainly erroneous
reading of,” § 4B1.2(b). See Stinson v. United States, 508 U.S. 36, 38 (1993).
Whatever the merits of its first two steps, Webster’s argument fails at step
three. In United States v. Mendoza-Figueroa, this court held that Application Note 1
to § 4B1.2(b) was a reasonable reading of § 4B1.2(b) that “we must enforce . . . in
accordance with its terms.” 65 F.3d 691, 693 (8th Cir. 1995) (en banc). Mendoza-
Figueroa remains binding on us. United States v. Jefferson, 975 F.3d 700, 708 (8th
Cir. 2020), petition for cert. filed, --- U.S.L.W. --- (U.S. Dec. 16, 2020) (No. 20-
6745). Under Application Note 1 to § 4B1.2(b), Webster’s 1998 Wisconsin drug
conviction is a “controlled substance offense” even though the statute of conviction
criminalizes inchoate offenses. See id. at 707-08 (holding that, under this application
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note, a prior conviction for “‘attempting’ to possess with intent to distribute”
marijuana was a “controlled substance offense”). The district court thus did not
procedurally err by concluding that Webster’s 1998 Wisconsin drug conviction was
a “controlled substance offense” in calculating his guidelines range.
Accordingly, we affirm Webster’s sentence.
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