                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3882
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                               Victor Hugo Maldonado

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Sioux City
                                  ____________

                               Submitted: June 8, 2017
                                Filed: July 25, 2017
                                   ____________

Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
                       ____________

GRUENDER, Circuit Judge.

      Victor Maldonado pleaded guilty to possession of a firearm by a prohibited
person and was sentenced to 84 months’ imprisonment. He now appeals his sentence,
arguing that the district court1 committed procedural error in determining his advisory

      1
        The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
sentencing guidelines range by finding that two of his prior convictions qualified as
“controlled substance offenses” and by applying an enhancement for possessing a
firearm in connection with another felony offense. For the reasons below, we affirm.

                                         I.

      On October 7, 2015, police officers in Sioux City, Iowa stopped Maldonado’s
vehicle and discovered a .40 caliber handgun, a bag containing marijuana, and a
methamphetamine pipe. Maldonado, a felon, was arrested and charged with
possession of a firearm by a prohibited person. See 18 U.S.C. §§ 922(g)(1) & (g)(3),
924(a)(2). Maldonado pleaded guilty to this offense and proceeded to sentencing.

       Prior to sentencing, the probation office prepared a Presentence Investigation
Report (“PSR”). The PSR concluded that Maldonado had sustained two prior
convictions for a “controlled substance offense” as defined in United States
Sentencing Guideline (“U.S.S.G.”) § 4B1.2(b). Specifically, the PSR cited a 2010
Nebraska conviction for “Criminal Attempt to Conspir[e] to Distribute
Methamphetamine” and a 2013 Iowa conviction for “Possession with Intent to
Deliver a Controlled Substance – Marijuana.” See Neb. Rev. Stat. §§ 28-201, 28-202,
28-416; Iowa Code. Ann. § 124.401. As a result, the PSR recommended a base
offense level of 24. See U.S.S.G. § 2K2.1(a)(2). The PSR also recommended a four-
level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because Maldonado possessed
the firearm “in connection with another felony offense,” namely, carrying weapons
in violation of Iowa Code Section 724.4(1). Maldonado objected to each of these
recommendations, but the district court overruled both of his objections. Hence, the
court concluded that Maldonado’s base offense level was 24 and calculated his total
offense level as 25 after applying the four-level enhancement and a three-level
reduction for acceptance of responsibility.




                                         -2-
       As such, the court initially determined that Maldonado’s advisory sentencing
guidelines range was 110 to 120 months’ imprisonment, based on a total offense level
of 25, a criminal history category of VI, and a statutory maximum of 120 months, see
18 U.S.C. § 924(a)(2). Nevertheless, the district court granted Maldonado a
downward variance because of its belief that the four-level enhancement for
possessing a firearm in connection with another felony offense was “greater than
necessary to accomplish all applicable sentencing purposes” where the “only other
felony offense involves carrying weapons under Iowa law.” On that basis, the court
decided to “vary downward as if the enhancement was only one level instead of four
levels.” As a result, the court recalculated Maldonado’s total offense level as 22 and
his advisory guidelines range as 84 to 105 months. The court then sentenced
Maldonado to 84 months’ imprisonment. Maldonado now appeals, arguing that the
district court committed procedural error by overruling each of his two objections and
thereby miscalculating his advisory sentencing guidelines range.

                                         II.

      “When reviewing a defendant’s sentence, we must ensure that the district court
committed no significant procedural error, including failing to calculate (or
improperly calculating) the Guidelines range.” United States v. Hagen, 641 F.3d 268,
270 (8th Cir. 2011) (quotation omitted). In reviewing for procedural error, “[w]e
review the district court’s construction and application of the sentencing guidelines
de novo and its factual findings for clear error.” Id.

      Maldonado argues that the district court committed procedural error in two
ways. First, he argues that the district court erroneously concluded that his Iowa and
Nebraska convictions each qualify as a “controlled substance offense” under U.S.S.G.
§ 4B1.2(b). Second, he argues that the court erroneously applied a four-level
enhancement for possession of a firearm “in connection with another felony offense”
under U.S.S.G. § 2K2.1(b)(6)(B). We address each argument in turn.

                                         -3-
                                          A.

      U.S.S.G. § 2K2.1(a)(2) provides for a base offense level of 24 “if the defendant
committed any part of the instant offense subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled substance offense.” U.S.S.G.
§ 4B1.2(b) defines a “controlled substance offense” as:

      an offense under federal or state law, punishable by imprisonment for a
      term exceeding one year, that prohibits the manufacture, import, export,
      distribution, or dispensing of a controlled substance (or a counterfeit
      substance) or the possession of a controlled substance (or a counterfeit
      substance) with intent to manufacture, import, export, distribute, or
      dispense.

Application Note 1 to § 4B1.2 explains that “controlled substance offenses also
include ‘aiding and abetting, conspiring, and attempting to commit such offenses.’”

       “To determine whether a prior conviction qualifies as a controlled substance
offense, the court must apply the ‘categorical approach’ . . . .” United States v.
Robinson, 639 F.3d 489, 495 (8th Cir. 2011) (citations omitted). “Under this
approach, we look not to the facts of the particular prior case, but instead to whether
the state statute defining the crime of conviction categorically fits within the generic
federal definition of a corresponding [controlled substance offense].” United States
v. Roblero-Ramirez, 716 F.3d 1122, 1125 (8th Cir. 2013) (quotation omitted). To
determine whether the state statute categorically fits within the generic federal
definition, “we must presume that the conviction rested upon nothing more than the
least of the acts proscribed by the state law and then determine whether even those
acts are encompassed by the generic federal offense.” Id. (quotation omitted).

      If a state statute is broader than the generic federal definition, we must
determine whether the statute is “divisible,” meaning that it “comprises multiple,

                                          -4-
alternative versions of the crime.” Descamps v. United States, 133 S. Ct. 2276, 2284
(2013). If a statute is divisible, courts may apply the “modified categorical
approach.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). “Under that
approach, a sentencing court looks to a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and colloquy) to determine what
crime, with what elements, a defendant was convicted of.” Id. “The court can then
compare that crime, as the categorical approach commands, with the relevant generic
offense.” Id.

       The modified categorical approach may only be applied to statutory offenses
listing alternative “elements,” rather than alternative “means.” Id. at 2253-54.
“Elements are the constituent parts of a crime’s legal definition—the things the
prosecution must prove to sustain a conviction.” Id. at 2248 (quotation omitted).
“Means,” in contrast, “need neither be found by a jury nor admitted by a defendant.”
Id.

      Here, Maldonado’s 2013 Iowa conviction was for a violation of Iowa Code
§ 124.401, which states:

      Except as authorized by this chapter, it is unlawful for any person to
      manufacture, deliver, or possess with the intent to manufacture or
      deliver, a controlled substance, a counterfeit substance, a simulated
      controlled substance, or an imitation controlled substance, or to act with,
      enter into a common scheme or design with, or conspire with one or
      more other persons to manufacture, deliver, or possess with the intent to
      manufacture or deliver a controlled substance, a counterfeit substance,
      a simulated controlled substance, or an imitation controlled substance.

Iowa Code Ann. § 124.401(1). His 2010 Nebraska conviction was for an attempt to
conspire to violate Section 28-416 of the Nebraska Revised Statues, which states:



                                         -5-
      [I]t shall be unlawful for any person knowingly or intentionally: (a) To
      manufacture, distribute, deliver, dispense, or possess with intent to
      manufacture, distribute, deliver, or dispense a controlled substance; or
      (b) to create, distribute, or possess with intent to distribute a counterfeit
      controlled substance.

Neb. Rev. Stat. § 28-416(1); see also id. § 28-201(1) (defining criminal attempt); id.
§ 28-202 (defining conspiracy).

        As a preliminary matter, we note that the above portions of each statute list
offenses in the alternative, such as “manufacture, distribute, deliver, dispense, or
possess with intent,” Neb. Rev. Stat. § 28-416(1), and that each statute separately
defines these offenses elsewhere, see Neb. Rev. Stat. § 28-401(8), (9), (12), (14);
Iowa Code Ann. § 124.101(7), (9), (11), (18). Because these portions of each statute
“list elements in the alternative, and thereby define multiple crimes,” these portions
are divisible. See Mathis, 136 S. Ct. at 2249; see also United States v. Teran-Salas,
767 F.3d 453, 459 (5th Cir. 2014) (“Because § 481.112(a) criminalizes discrete
acts—manufacturing, delivering, and possessing with intent to deliver—it is
divisible.”). Hence, we apply the modified categorical approach to these portions and
look to state-court documents “to identify, from among several alternatives, the crime
of conviction so that [we] can compare it to the generic offense.” Descamps, 133 S.
Ct. at 2285; see also Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013)
(analyzing portion of a Georgia statue making it a crime to “possess, have under
[one’s] control, manufacture, deliver, distribute, dispense, administer, purchase, sell,
or possess with intent to distribute marijuana,” and looking to the defendant’s plea
agreement to determine that he “was convicted of the last of these offenses”). Here,
the relevant state-court documents reveal that Maldonado was convicted of an attempt
to commit “conspiracy to distribute” methamphetamine in Nebraska and “possession




                                          -6-
with intent to deliver” marijuana in Iowa.2 Thus, we limit our analysis to the statutory
language related to these particular offenses, and we ask whether a defendant may be
convicted of either of these offenses for conduct that does not fit within U.S.S.G.
§ 4B1.2(b).

       Maldonado does not contest that the above portions of each statute are divisible
or that we should focus only on these offenses. Rather, he argues that his Nebraska
and Iowa convictions do not qualify as controlled substance offenses because the
relevant statutory definitions—“distribute” and “deliver”—sweep more broadly than
the generic federal offense. Specifically, he contends that these definitions
encompass “a mere offer to sell drugs,” whereas the generic federal definition does
not. He further contends that the definitional portions of each statute are indivisible
and thus the modified categorical approach does not apply to them.

         To show that the federal definition does not encompass a mere offer to sell
drugs, Maldonado points to the Second Circuit’s decision in United States v. Savage,
which reasoned that a “mere offer to sell” does not fit within the federal definition
because “[a]n offer to sell can be fraudulent . . . in the sense that the person offering
. . . the drug does not have the intent to distribute or sell the item.” See 542 F.3d 959,
965 (2d Cir. 2008). Maldonado also cites the Fifth Circuit’s decision in United States
v. Hinkle, which noted that “an offer to sell does not constitute a ‘controlled substance
offense’ within the meaning of the Guidelines.” See 832 F.3d 569, 571 (5th Cir.
2016). There, the court concluded that the defendant’s prior conviction for delivery
of heroin did not qualify as a controlled substance offense because the Texas statute’s


      2
       In addition, Maldonado’s Nebraska conviction was a class II felony, see Neb.
Rev. Stat. §§ 28-201(1) & (4)(a), 28-202(4), 28-416(1) & (10)(c), and his Iowa
conviction was a class D felony, see Iowa Code. Ann. §§ 124.401(1)(d), 902.9(1)(e).
As such, they both satisfy the requirement that a controlled substance offense be
“punishable by imprisonment for a term exceeding one year.” See U.S.S.G.
§ 4B1.2(b).

                                           -7-
definition of the term “deliver” expressly included “offering to sell a controlled
substance” and because this definitional portion of the statute was indivisible. See
id. at 572, 576-77. However, even if Maldonado is correct that the federal definition
does not encompass mere offers to sell, he fails to show that the definitions of
“distribute” and “deliver” in the Nebraska and Iowa statutes encompass such conduct,
as the Texas statute did in Hinkle.

       Because Maldonado was convicted of an attempt to conspire to “distribute”
methamphetamine in Nebraska and of possession with intent to “deliver” marijuana
in Iowa, we analyze the definitions of “distribute” in the Nebraska statute and
“deliver” in the Iowa statute. The Nebraska statute defines “distribute” as “to deliver
other than by administering or dispensing a controlled substance,” and it further
defines “deliver” as “the actual, constructive, or attempted transfer from one person
to another of a controlled substance, whether or not there is an agency relationship.”
Neb. Rev. Stat. § 28-401(9), (12). The Iowa statute’s definition of “deliver” is
identical to that of the Nebraska statute. See Iowa Code Ann. § 124.101(7). Thus,
unlike the definition of “deliver” in Hinkle, neither statute here expressly states that
it encompasses “offering to sell a controlled substance.” See 832 F.3d at 572.

       Nevertheless, Maldonado argues that the term “deliver” in both statutes—and
by extension “distribute” in the Nebraska statute—“could be construed to cover
conduct akin to a mere offer to sell drugs.” However, whether a term “could be
construed” to encompass such conduct is not the correct standard. As we recently
reiterated, “[t]he categorical approach requires a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside the
generic definition of a crime.” Fletcher v. United States, 858 F.3d 501, 507 (8th Cir.
2017) (quotation omitted). And, “[i]n order to show that realistic probability, an
offender must at least point to his own case or other cases in which the state courts
in fact did apply the statute in the special (nongeneric) manner for which he argues.”
Id. (quotation and alterations omitted). Maldonado fails to point to any case where

                                           -8-
a person was convicted under the Nebraska or Iowa statutes for a mere offer to sell
drugs.

       Maldonado cites two cases from Nebraska and two from Iowa to support his
argument, but each one found that the defendant could be convicted of distribution
or delivery because he was an aider and abettor—not because of a mere offer to sell.
See State v. Salas, 436 N.W.2d 547, 550-51 (Neb. 1989) (holding that defendant
could be convicted of aiding and abetting delivery of cocaine because “[t]he
defendant participated in the crime when he accepted without protest the money paid
for the cocaine sold by his ex-wife”); State v. McKimmey 634 N.W.2d 817, 822 (Neb.
App. 2001) (holding that defendant could be convicted of aiding and abetting
distribution and delivery of methamphetamine because the defendant “actively
assist[ed] and encourag[ed] [the supplier’s] distribution and delivery” (quotation
omitted)); State v. Allen 633 N.W.2d 752, 753, 757 (Iowa 2001) (holding that
defendant could be convicted of aiding and abetting delivery of cocaine because he
got in the officers’ car and took them to two different possible sources before finding
cocaine to buy, thereby “plainly facilitat[ing] the transfer”); State v. Brown, 466
N.W.2d 702, 703-04 (Iowa App. 1990) (holding that defendant could be convicted
of aiding and abetting delivery of cocaine because he flagged down undercover
officers, used hand signals to ask what quantity of cocaine they wanted, got in the
officers’ police car, showed them small flakes of cocaine, and offered to take the
officers to his supplier to get a larger rock of cocaine). In each of these cases, the
person aided or abetted had “the intent to distribute or sell the item,” see Savage, 542
F.3d at 965, unlike the type of “mere offer to sell” that Maldonado contends does not
fit within the federal definition. Thus, none of these cases “in fact did apply the
statute in the special (nongeneric) manner for which [Maldonado] argues.” See
Fletcher, 858 F.3d at 507. They did not construe the statutory definitions of
“deliver” to encompass mere offers to sell.




                                          -9-
       We note, of course, that the term “deliver” does not appear in U.S.S.G.
§ 4B1.2(b). Nevertheless, § 4B1.2(b) refers to both “distribution” and “dispensing,”
and Maldonado fails to show a realistic probability that a defendant would be
convicted of “conspiracy to distribute” in Nebraska or “possession with intent to
deliver” in Iowa for conduct that would fall outside the generic definitions of
“distribution” or “dispensing.” See Teran-Salas, 767 F.3d at 460 (holding that
defendant’s conviction for possession of cocaine with intent to deliver qualified as
a “drug trafficking offense” under the guidelines because the defendant did “not
establish a realistic probability that Texas would prosecute his crime under an
‘administering’ theory in a way that does not also constitute either ‘dispensing’ or
‘distributing’ under the federal sentencing guidelines”). Indeed, other than mere
offers to sell, Maldonado provides no examples of such conduct, and he points to no
cases in which Nebraska or Iowa applied their statutes to such conduct. Thus, we
cannot conclude that the statutory definitions of “deliver” sweep more broadly than
the generic federal definition.

       Instead, we conclude that Maldonado’s state convictions categorically fit
within the generic federal definition. As a result, we have no need to determine
whether the statutory definitions of “deliver” are divisible or to apply the modified
categorical approach to them. Cf. Hinkle, 832 F.3d at 572-73, 576 (concluding that
portion of statute defining “delivery” was indivisible). Each of Maldonado’s prior
convictions categorically qualify as a controlled substance offense, and thus the
district court did not commit procedural error in overruling Maldonado’s objection.

                                           B.

       U.S.S.G. § 2K2.1(b)(6) provides that “[i]f the defendant . . . [u]sed or possessed
any firearm or ammunition in connection with another felony offense . . . increase by
4 levels.” The Commentary to § 2K2.1 defines “another felony offense” as “any
Federal, state, or local offense, other than the explosive or firearms possession or

                                          -10-
trafficking offense, punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction obtained.”
Here, the district court applied § 2K2.1(b)(6)’s four-level enhancement because
Maldonado committed the instant offense in connection with the crime of carrying
weapons, an offense proscribed by Iowa Code § 724.4(1). This statute provides that
“a person who goes armed with a dangerous weapon concealed on or about the
person, or who, within the limits of any city, goes armed with a pistol or revolver, or
any loaded firearm of any kind, whether concealed or not, or who knowingly carries
or transports in a vehicle a pistol or revolver, commits an aggravated misdemeanor.”
Iowa Code Ann. § 724.4(1). In Iowa, an aggravated misdemeanor is punishable by
imprisonment for a term of up to two years. Id. § 903.1(2).

      Maldonado does not contest that he violated Iowa Code Ann. § 724.4(1).
Rather, he argues that the Iowa offense is not properly considered “another felony
offense” because he could not commit the instant federal offense without also
committing the Iowa offense, as in United States v. Lindquist. See 421 F.3d 751, 756
(8th Cir. 2005) (“It would be unreasonable . . . to allow the ‘additional felony’ to be
an offense that the defendant has to commit, in every case, in order to commit the
underlying offense.” (quotation and alteration omitted)), abrogated on other grounds
as recognized in United States v. Steward, 598 F.3d 960, 962-63 (8th Cir. 2010).

      However, we have rejected this argument as applied to Iowa Code § 724.4(1)
in United States v. Walker, 771 F.3d 449, 452-53 (8th Cir. 2014), cert denied, 135 S.
Ct. 1538 (2015). There, we held that the district court did not err by applying
§ 2K2.1(b)(6)’s four-level enhancement to a defendant convicted of violating 18
U.S.C. 922(g) and who possessed the firearm in connection with the Iowa crime of
carrying weapons. Id. We noted that “Iowa Code § 724.4(1), unlike 18 U.S.C.
§ 922(g), requires proof that the defendant went armed ‘with a dangerous weapon
concealed on or about the person,’ or went armed with a handgun ‘within the limits
of any city,’ or ‘knowingly carrie[d] or transport[ed] [a handgun] in a vehicle.’” Id.

                                         -11-
at 453. Thus, we concluded that “applying the four-level enhancement in U.S.S.G.
§ 2K2.1(b)(6) does not implicate the ‘double counting’ concerns underlying our
decision in Lindquist.” Id. The district court properly recognized that it was bound
by this precedent. As in Walker, Maldonado “was not doomed to automatically
commit the additional felony when he violated 18 U.S.C. § 922(g) by possessing a
firearm as a felon.” See id. at 452-53. Therefore, the court did not commit procedural
error by applying the four-level enhancement for possessing the firearm in connection
with the Iowa offense of carrying weapons.

                                         III.

      For the reasons stated above, we affirm the district court’s sentence.
                      ______________________________




                                        -12-
