United States Court of Appeals
For the Eighth Circuit
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No. 21-1280
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United States of America
Plaintiff - Appellee
v.
Heather Marie Newhouse
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: January 11, 2022
Filed: May 2, 2022
[Unpublished]
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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PER CURIAM.
Heather Newhouse pleaded guilty to two drug-trafficking offenses, and the
district court1 sentenced her to 240 months of imprisonment. Newhouse appeals her
sentence, arguing that the district court erred in calculating her advisory United
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
States Sentencing Guidelines range by finding that her two prior convictions under
Iowa Code § 124.401(1) qualified as “controlled substance offenses” and thus she
was a career offender. See USSG § 4B1.1 (2018). We review this question de novo.
United States v. Boleyn, 929 F.3d 932, 936 (8th Cir. 2019).
The Guidelines define a controlled substance offense as “an offense under
federal or state law, punishable by imprisonment for a term exceeding one year, that
prohibits . . . the possession of a controlled substance . . . with intent to . . . distribute.”
USSG § 4B1.2(b). Application Note 1 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).
Newhouse argues that her two prior convictions do not qualify as controlled
substance offenses because Iowa Code § 124.401(1) includes inchoate offenses
within its definition, and inchoate offenses are not properly within § 4B1.2(b)’s
definition of a controlled substance offense. She contends that the United States
Sentencing Commission exceeded its authority by using the commentary to add
inchoate offenses to the definition.
As Newhouse concedes, however, her argument is foreclosed by circuit
precedent. In United States v. Mendoza-Figueroa, the en banc court held that
Application Note 1 to § 4B1.2 “is a reasonable interpretation of the career offender
guidelines that is well within the Sentencing Commission’s statutory authority,” and
that conspiracy to commit a controlled substance offense is thus a “controlled
substance offense” as defined by the Guidelines. 65 F.3d 691, 694 (8th Cir. 1995)
(en banc); see also United States v. Merritt, 934 F.3d 809, 811 (8th Cir. 2019). This
panel cannot overrule an earlier decision by the en banc court. See Merritt, 934 F.3d
at 811 (citing United States v. Lucas, 521 F.3d 861, 867 (8th Cir. 2008)).
We affirm the judgment of the district court.
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