                                    PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-4214


UNITED STATES OF AMERICA,

                   Plaintiff – Appellee,

             v.

THOMAS EDWARD NORMAN,

                   Defendant – Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:17-cr-00527-HMH-1)


Argued: May 7, 2019                                        Decided: August 15, 2019


Before MOTZ, KING, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Thacker
joined. Judge King wrote an opinion concurring in part and dissenting in part.


ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbia, South Carolina, for Appellant. Brook Bowers Andrews, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF:
Sherri A. Lydon, United States Attorney, Columbia, South Carolina, Jennifer E. Wells,
Special Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

       The district court found Thomas Edward Norman guilty of being a felon in

possession of a firearm, possessing heroin and cocaine with intent to distribute, and

possessing a firearm in furtherance of a drug trafficking crime. On the basis of his prior

conviction for conspiracy to possess cocaine and cocaine base with intent to distribute, in

violation of 21 U.S.C. § 846, the court applied an effective six-level enhancement to

Norman’s     sentence    under    United    States   Sentencing     Guidelines    (U.S.S.G.)

§ 2K2.1(a)(4)(A). Norman appeals the denial of his motion to suppress and the imposition

of the enhancement. For the reasons that follow, we affirm.



                                              I.

       We relate the facts relevant to the suppression motion in the light most favorable to

the Government, the prevailing party before the district court. See United States v. Bullette,

854 F.3d 261, 265 (4th Cir. 2017).

       On December 7, 2016, officers with the United States Marshals Fugitive Task Force

and the local sheriff’s office received information that Norman, wanted on an outstanding

warrant for violating the terms of his supervised release, could be found in a black Camry

on Archer Road in Spartanburg, South Carolina. Arriving on the scene, the officers

approached the vehicle, removed Norman, and placed him under arrest pursuant to the

outstanding warrant. They then searched Norman and found a large amount of cash and a

cell phone in his pockets. The officers also removed and searched the sole passenger in



                                              2
the vehicle, Princess Harrison; they found a baggie in her hair, which she admitted

contained cocaine residue.

       When officers placed the cash seized from Norman’s person on the driver’s side

seat of the Camry, they saw additional cash on the car’s floorboard. The officers later

ascertained that the total amount of cash recovered from Norman’s person and the

floorboard was $1,244. The officers also observed a small tied-up quarter baggie sitting

behind the gear stick on the center console of the vehicle. One officer testified that, based

on the baggie’s distinctive appearance and his seventeen years of experience with narcotics

investigations, he believed the baggie contained contraband. The baggie’s contents later

tested positive for heroin.

       After arresting Norman and Harrison and observing the cash and baggie in plain

view, the officers conducted an extensive search of the vehicle. They subsequently located

packages containing cocaine and “molly” (a street term for powdered ecstasy) under a bag

on the floor of the back seat and a firearm under the driver’s side seat.

       On June 13, 2017, a federal grand jury indicted Norman on three counts:

(1) possession of a firearm and ammunition by a felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924(a)(2), and 924(e) (“Count 1”); (2) possession with intent to distribute a

quantity of heroin and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)

(“Count 2”); and (3) possession of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A) (“Count 3”).

       The case proceeded to a bench trial. After the close of the Government’s case,

Norman moved to suppress the drugs and firearm recovered from the Camry as fruits of an

                                              3
illegal search. The district court denied his motion, and later found Norman guilty on all

three counts.

       Following Norman’s conviction, the district court asked the United States Probation

Office to prepare a Presentence Investigation Report (“PSR”). For Count 1, the Probation

Office calculated a base offense level of 20.      This included an effective six-level

enhancement under U.S.S.G. § 2K2.1(a)(4)(A), on the basis that a prior conviction for

“Conspiracy to [Possess with Intent to Distribute] Cocaine and Cocaine Base” under 21

U.S.C. § 846 constituted a “controlled substance offense.” With an additional two-level

enhancement for a stolen firearm and a criminal history category of VI, Norman’s resulting

Guidelines range was 84 to 105 months’ imprisonment. Counts 1 and 2 were consolidated

pursuant to U.S.S.G. § 3D1.2(c).     Because Count 3 required a mandatory 60-month

consecutive term of imprisonment, Norman’s effective Guidelines range under U.S.S.G.

§ 5G1.2(a) was 144 to 165 months.

       At his sentencing hearing on March 27, 2018, Norman’s sole objection was to the

criminal history points associated with a 2005 conviction in state court. The court

overruled that objection. The district court then sentenced Norman to 156 months of

imprisonment, consisting of 96 months for Counts 1 and 2 and 60 consecutive months for

Count 3, followed by a five-year term of supervised release.

       This appeal followed.




                                            4
                                              II.

       Norman first challenges the district court’s denial of his motion to suppress the fruits

of the warrantless search of the Camry. We review the court’s legal conclusions de novo

and its factual findings for clear error. Bullette, 854 F.3d at 265.

       The district court denied Norman’s motion on the basis of two exceptions to the

warrant requirement, finding both that the search was “incident to an arrest” and that the

officers “had probable cause to search because . . . there was in plain view evidence of

drugs in the car.” On appeal, the Government primarily maintains that the warrantless

search was valid as a search incident to the arrest of Princess Harrison. Although Norman

raises a host of arguments challenging the applicability of several exceptions to the warrant

requirement, he offers no rebuttal to this argument and so has abandoned any challenge to

it.

       Even if that were not so, we would agree with the Government that the officers’

search of the Camry was a valid search incident to the arrest of Harrison. Police may

conduct a warrantless search of a vehicle “incident to a lawful arrest when it is reasonable

to believe evidence relevant to the crime of arrest might be found in the vehicle.” Arizona

v. Gant, 556 U.S. 332, 343 (2009) (internal quotation marks omitted). After finding a bag

of white powder in Harrison’s hair — which she admitted to the arresting officer was

cocaine — and observing a suspicious baggie and a large amount of cash in plain view, the

officers had a “reasonable basis” to believe they might find additional drugs in the Camry

in which Harrison, an arrestee, was a passenger. Id. at 343; see also Thornton v. United

States, 541 U.S. 615, 631–32 (2004) (Scalia, J., concurring in the judgment).

                                              5
                                              III.

       Having concluded that Norman’s only challenge to his conviction fails, we turn to

his challenge to the six-level Guidelines enhancement. Ordinarily, we review de novo

whether a conviction qualifies as a predicate offense under the Guidelines. United States

v. Dozier, 848 F.3d 180, 182–83 (4th Cir. 2017). However, because Norman failed to

object to the application of the enhancement before the district court, we can review only

for plain error. United States v. Carthorne, 726 F.3d 503, 509 (4th Cir. 2013); see also

Fed. R. Crim. P. 52(b). To establish plain error, a defendant must demonstrate (1) that an

error was made, (2) that it was plain, (3) that it affected his substantial rights, and (4) that

it is the type of error that “seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Henderson v. United States, 568 U.S. 266, 272 (2013) (alterations

and internal quotation marks omitted).

                                              A.

                                               1.

       We first consider whether the district court erred in its Guidelines analysis.

       The Sentencing Guidelines provide that a defendant convicted under 18 U.S.C.

§ 922(g)(1) will have a base offense level of 20 if he has a prior conviction for a “controlled

substance offense.” U.S.S.G. § 2K2.1(a)(4). “Controlled substance offense” is defined in

U.S.S.G. § 4B1.2(b), id. § 2K2.1 cmt. n.1, the commentary to which defines “controlled

substance offense” to include the offenses of “aiding and abetting, conspiring, and

attempting to commit such offenses,” id. § 4B1.2 cmt. n.1.



                                               6
       Courts employ a categorical approach to determine whether a conviction qualifies

as a predicate offense under the Sentencing Guidelines. United States v. Seay, 553 F.3d

732, 737 (4th Cir. 2009) (citing Taylor v. United States, 495 U.S. 575, 600–02 (1990)).

This approach involves two steps. The first requires us to distill a “generic” definition of

the predicate offense. Taylor, 495 U.S. at 598. The second requires us to determine

whether the conviction at issue constitutes a conviction of that generic offense. Id. at 600.

We do this by comparing the elements of the generic offense to the elements of the

defendant’s offense of conviction. If the offense of conviction criminalizes conduct

broader than that encompassed by the generic offense, then the conviction does not

categorically qualify under the Guidelines. United States v. Chacon, 533 F.3d 250, 254–

55 (4th Cir. 2008).

       In this case, the district court applied a base offense level of 20 on the basis of

Norman’s 2008 conviction for conspiracy to possess cocaine and cocaine base with intent

to distribute, in violation of 21 U.S.C. § 846. This increased Norman’s base offense level

from 14 to 20. Taken with the two-level enhancement for a stolen firearm, application of

the controlled substance offense enhancement raised Norman’s Guidelines range from 46–

57 months to 84–105 months. Norman concedes that actual possession of cocaine and

cocaine base with intent to distribute qualifies as a controlled substance offense. But he

contends that because the definition of “conspiracy” in 21 U.S.C. § 846 is broader than the

definition of the generic crime of conspiracy, his conspiracy conviction does not qualify as

a “controlled substance offense” under the Guidelines.



                                             7
       A straightforward application of controlling precedent compels us to agree.

Because the Guidelines do not define “conspiracy” under § 4B1.2, the term is defined by

reference to the “generic, contemporary meaning” of the crime. Taylor, 495 U.S. at 598.

Relying on the fact that thirty-six states and the District of Columbia, Guam, Puerto Rico,

and the Virgin Islands “define conspiracy to require an overt act,” we have expressly held

that “an overt act is an element of the generic definition of conspiracy” as incorporated into

§ 4B1.2. United States v. McCollum, 885 F.3d 300, 308 (4th Cir. 2018) (internal quotation

marks omitted). 1 And it is undisputed that “conspiracy” under § 846 does not require an

overt act. See United States v. Shabani, 513 U.S. 10, 11 (1994). Therefore, § 846

criminalizes a broader range of conduct than that covered by generic conspiracy, and

Norman’s conviction under § 846 cannot support the six-level enhancement he received.

See United States v. Martinez-Cruz, 836 F.3d 1305, 1314 (10th Cir. 2016) (holding same).

       The Government concedes that we generally apply the categorical approach to

determine whether a conviction qualifies as a predicate offense under the Guidelines.

Nevertheless, it offers several arguments as to why we should diverge from this established

rule here. None are persuasive.




       1
         Relying on Etienne v. Lynch, 813 F.3d 135 (4th Cir. 2015), the Government argues
that prior to McCollum, we had defined “generic conspiracy” as not requiring an overt act.
But, as the McCollum court explained, Etienne concerned the common law definition of
conspiracy as incorporated into the Immigration and Nationality Act, whereas McCollum
and the case at hand concern the generic definition of conspiracy as incorporated into the
Guidelines. McCollum, 885 F.3d at 308 (distinguishing Etienne on the basis that the
Guidelines “require[] us to consider a crime’s contemporary meaning, not its common law
meaning”).
                                              8
       The Government first asserts that the commentary to § 4B1.2 somehow

demonstrates that the Sentencing Commission intended to treat any relevant conspiracy

crime as a controlled substance offense, regardless of whether it requires an overt act.

Recall that the commentary states that “aiding and abetting, conspiring, and attempting” to

commit a controlled substance offense meet the requirements of U.S.S.G. § 4B1.2(b). But

the commentary does not define those enumerated offenses for the purpose of determining

whether a given “aiding and abetting, conspiring, or attempting” conviction qualifies as a

controlled substance offense. As we have explained, it is well settled that when the

Guidelines simply name a type of offense without specifically defining it, nomenclature

alone does not control; rather, we use the categorical approach to compare a potential

predicate offense with the generic definition of the specified offense. See McCollum, 885

F.3d at 307–09 (applying categorical approach to define “conspiring” under § 4B1.2(b) to

require an overt act); Dozier, 848 F.3d at 186–87 (applying categorical approach to define

“attempting”).

       Nor, contrary to the Government’s suggestion, does United States v. Medina-

Campo, 714 F.3d 232 (4th Cir. 2013), counsel abandonment of the categorical approach

here. That case required us to resolve a different question. In Medina-Campo, the issue

was whether the list of enumerated offenses in the commentary to U.S.S.G. § 2L1.2, which

“include[d] the offenses of aiding and abetting, conspiring, and attempting,” provided an

exhaustive list or could include the Oregon crime of “solicitation.” Id. at 237–38 (internal

quotation marks omitted). After careful analysis, we held that the list was not exclusive



                                             9
and so could include the Oregon offense, because “solicitation” was similar to the

enumerated offenses listed in the commentary. Id. at 238.

      Medina-Campo was thus about whether an offense was similar to the enumerated

offenses of “aiding and abetting, conspiring, and attempting.” This case, in contrast, is

about whether an offense is the enumerated offense of “conspiring.” When answering the

similar question in Medina-Campo, we expressly reaffirmed that we use “a categorical

approach” to answer the question of “whether a prior conviction” is an enumerated offense.

Id. at 235; see also id. at 238. Moreover, in resolving the question presented in Medina-

Campo, we specifically acknowledged the fact that generic “conspiring” requires an overt

act. Id. at 238. Rather than offering the Government support, Medina-Campo thus

substantially undermines its argument.

      Taking a different tack, the Government relies on out-of-circuit caselaw to argue

that we need not apply the categorical approach because the Sentencing Commission must

have intended to include federal drug trafficking conspiracies in its definition of

“controlled substance offenses.” See United States v. Rivera-Constantino, 798 F.3d 900,

904 (9th Cir. 2015); United States v. Rodriguez-Escareno, 700 F.3d 751, 754 (5th Cir.

2012). But we rejected precisely this argument in McCollum. There, we held that

§ 4B1.2’s text and commentary “support[ed] the application of Taylor’s categorical

approach to predicate crimes under both state and federal law.” See McCollum, 885 F.3d

at 305–06. We found that our precedent, too, “offer[ed] no basis for analyzing the laws of

different sovereigns under different standards.” Id. at 306–07. Here again, the Government



                                           10
identifies nothing in the Guidelines or our case law that would support treating federal and

state crimes differently for the purposes of § 4B1.2(b).

       We therefore hold that a “conspiracy” conviction under § 846 is a categorical

mismatch to the generic crime of conspiracy enumerated in § 4B1.2(b). As Judge Ebel

explained in reaching the same conclusion for the Tenth Circuit, courts that have held to

the contrary have all “divined the intent of the Sentencing Commission without offering

any evidence of that intent.” Martinez-Cruz, 836 F.3d at 1314. Like the Tenth Circuit,

“we find no evidence” of the intent of the Sentencing Commission “regarding whether a

conspiracy conviction requires an overt act — except for the plain language of the

guideline, which uses a generic, undefined term, ripe for the categorical approach.” Id. 2

       In sum, the Government’s lengthy brief offers no reasoned basis to ignore our

binding precedent or abandon the categorical approach. We can only follow the same

approach we have consistently applied to define enumerated offenses since the Supreme

Court announced its decision in Taylor — a categorical one. Our faithful application of




       2
         Puzzlingly, the Government also contends that the categorical approach applies
only to “prior” felony convictions and so should not apply here. We have held to the
contrary. See United States v. Simms, 914 F.3d 229, 246–47 (4th Cir. 2019) (en banc). In
any event, the argument is totally inapt because Norman’s 2003 conspiracy conviction was
prior to the 2016 convictions on appeal here.
        The Government additionally offers several policy arguments for why we should
not reach the result we do. But we think it best to leave consideration of those arguments
to the Sentencing Commission. If the Commission wishes for § 2K2.1 to reach all federal
conspiracy offenses, regardless of whether they require an overt act, it can amend the
Guidelines accordingly. See, e.g., U.S.S.G. § 4B1.2(a)(2) (defining “crime of violence” to
include “unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c)”).
                                            11
that approach leads inevitably to the conclusion that the district court erred in enhancing

Norman’s sentence under § 2K2.1(a)(4)(A).

                                             2.

       Notwithstanding this analysis, the Government, now joined by the dissent, insists

that we have already held to the contrary. It is true that in a series of decades-old cases,

this court assumed that § 846 conspiracy convictions qualified as controlled substance

offenses. See United States v. Kennedy, 32 F.3d 876, 888 (4th Cir. 1994); United States v.

Walton, 56 F.3d 551, 555 (4th Cir. 1995); United States v. Brandon, 363 F.3d 341, 345

(4th Cir. 2004). But not one of these cases “held” that an § 846 conspiracy qualified as a

controlled substance offense.

       In Kennedy, for example, the parties contested two Guidelines issues — neither of

which involved whether a § 846 conspiracy conviction qualifies as a controlled substance

offense. The defendants in Kennedy raised a host of challenges to their convictions and

sentences on appeal, none of which are relevant here. On cross-appeal, however, the

Government argued that the district court incorrectly held that it had no authority to find

facts as to when a specific defendant’s § 846 conspiracy started, for the purposes of

determining which prior felony convictions were recent enough to serve as predicates in

that defendant’s case. In reply, the defendants argued that the district court had no such

authority and challenged the applicability of the career offender enhancement solely on the

ground that the Sentencing Commission “exceeded its statutory mandate in including drug

conspiracy offenses in the definition of controlled substance offense.” 32 F.3d at 888–90.

Neither party addressed the question of whether the defendant’s § 846 conspiracy

                                            12
conviction qualified as a “controlled substance offense” under the Guidelines, and neither

raised any argument relating to the categorical approach.

       The Kennedy court ruled for the Government on both issues: it held that the district

court had the authority to find facts relating to the § 846 offense and that the Sentencing

Commission did not exceed its statutory authority in including drug conspiracy offenses

within its definition of “controlled substance offense” in the Guidelines. In the course of

reaching these holdings, the court remarked in passing that “conspiracy to distribute

cocaine in violation of 21 U.S.C. § 846 [] would clearly qualify as a career offender offense

under the Guidelines provisions and commentaries.” Id. at 888. As this court and the

Supreme Court have repeatedly recognized, such a “passing observation” on an issue

neither briefed nor disputed does not constitute a holding. See, e.g., United States v.

McLeod, 808 F.3d 972, 977 (4th Cir. 2015) (expressly rejecting the view that an

observation on an issue not briefed and argued to the court in an earlier case constituted a

“holding” on that issue and refusing to follow that “passing observation”); United States v.

Hemingway, 734 F.3d 323, 335 (4th Cir. 2013) (holding that a previous case, which

assumed a sentencing enhancement applied, “did not dictate th[at] outcome” because the

issue “was not contested”); see also D.C. v. Heller, 554 U.S. 570, 625 n.25 (2008)

(characterizing statement in previous decision as “dictum” because “the point was not at

issue and was not argued” and refusing to follow that “dictum”); Brecht v. Abrahamson,

507 U.S. 619, 631 (1993) (“[S]ince we have never squarely addressed the issue, and have

at most assumed [it], we are free to address the issue on the merits.”); Legal Servs. Corp.

v. Velazquez, 531 U.S. 533, 557 (2001) (Scalia, J., dissenting) (explaining that “judicial

                                             13
decisions do not stand as binding ‘precedent’ for points that were not raised, not argued,

and hence not analyzed” and collecting cases).            Accordingly, as in McLeod, the

Government can take “little comfort” here from “passing observation[s]” in earlier cases.

808 F.3d at 977. 3

       Our friend in dissent ignores all this authority. He suggests that even though the

question of whether an § 846 conspiracy qualifies as a controlled substance offense was

“not raised, not argued, and hence not analyzed” in Kennedy, Velazquez, 531 U.S. at 557,

Kennedy nevertheless decided that antecedent issue because the remand order directed the

district court to sentence the defendant as a career offender if his “conspiratorial activities

began on or before” a critical date. The Supreme Court, however, has repeatedly rejected

such an approach. As the Court has explained, courts often decide “particular legal issues

while assuming without deciding the validity of antecedent propositions, and such

assumptions . . . are not binding in future cases that directly raise the questions.” United

States v. Verdugo-Urquidez, 494 U.S. 259, 272 (1990) (citations omitted) (citing numerous

cases). Indeed, the Court has long and expressly held, with respect to perhaps the most

essential antecedent issue — jurisdiction — that it is not “bound” by cases that “assumed

that jurisdiction existed . . . or so stated without analysis.” Hagans v. Lavine, 415 U.S.



       3
         Walton and Brandon (also relied on by the Government, but not the dissent)
similarly never held that a § 846 conspiracy was a controlled substance offense under
§ 4B1.2. The only question in Walton was whether a conviction for “us[ing] the public
telephone system in committing” a “conspiracy to distribute cocaine” constituted “aiding
and abetting” under § 4B1.1. 56 F.3d at 555. The only question in Brandon was whether
the defendant’s prior conviction for common law robbery qualified as a felony crime of
violence under § 4B1.1. 363 F.3d at 345.
                                              14
528, 533 n.5 (1974) (emphasis added) (citing cases dating back to the early nineteenth

century). This is so because, under our adversarial system of justice, an unchallenged and

untested assumption is simply not a holding that binds future courts.

       Thus, this court’s prior assumption that § 846 conspiracy convictions qualify as

controlled substance offenses does not control our analysis here.

                                              B.

       Having found that the district court erred, we must determine whether that error was

plain. An error is plain “if the settled law of the Supreme Court or this circuit establishes

that an error has occurred.” United States v. Maxwell, 285 F.3d 336, 342 (4th Cir. 2002)

(internal quotation marks omitted). “[W]hether a legal question was settled or unsettled at

the time of trial, it is enough that an error be ‘plain’ at the time of appellate consideration

. . . .” Henderson, 568 U.S. at 279 (internal quotation marks omitted).

       Norman contends that our decision in McCollum renders the error here plain. As

noted above, in McCollum, we applied the categorical approach to decide whether a

defendant’s prior conviction for conspiracy to commit murder in aid of racketeering under

21 U.S.C. § 1959(a)(5) triggered U.S.S.G. § 2K2.1’s crime of violence enhancement.

McCollum, 885 F.3d at 305–09. We concluded that because conspiracy under § 1959(a)(5)

does not require an overt act, it covers a broader range of conduct than that covered by

generic conspiracy and so the defendant’s conviction could not support his enhanced

sentence. Id. at 309. We subsequently applied McCollum in an unpublished opinion

holding that because conspiracy under § 846 also lacks an overt act requirement, it does



                                              15
not qualify as a “controlled substance offense” under § 4B1.2. United States v. Whitley,

737 F. App’x 147, 148–49 (4th Cir. 2018).

       We agree with Norman that McCollum controls this case. But prior to today’s

decision, Kennedy and its progeny sufficiently muddied the water such that “the district

court’s error was not so clear or obvious as to” be plain. Carthorne, 726 F.3d at 516.

Indeed, another panel of this court recently suggested as much in an unpublished opinion.

See United States v. Chavez-Lopez, 767 F. App’x 431, 437 (4th Cir. 2019) (“Kennedy and

subsequent cases cast enough doubt on [defendant’s] argument that any error isn’t clear or

obvious enough to be plain.”). Accordingly, we conclude that the district court’s error here

was not plain and so provides no basis for reversal.

                                            IV.

       For the foregoing reasons, the judgment of the district court is

                                                                              AFFIRMED.




                                             16
KING, Circuit Judge, concurring in part and dissenting in part:

       Although I join my good colleagues in rejecting defendant Thomas Norman’s

Fourth Amendment contention and affirming the judgment, I do not agree that United

States v. McCollum, 885 F.3d 300 (4th Cir. 2018), controls the sentencing issue and that

the district court erred under that decision. As I see it, the controlling precedent is actually

United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994), which supports the district court’s

conclusion that the offense of conspiracy to distribute controlled substances, in violation

of 21 U.S.C. § 846, qualifies as a “controlled substance offense” pursuant to section

2K2.1(a)(4)(A) of the Sentencing Guidelines. In the circumstances, I would decide the

sentencing issue on the first prong of plain error review and conclude that the district court

committed no error. I therefore dissent in part.

       The panel majority sidesteps the binding Kennedy decision by characterizing

Kennedy as having “assumed” that a § 846 conspiracy is a controlled substance offense.

See ante 12. In Kennedy, the government cross-appealed to challenge the district court’s

failure to categorize as a career offender, under Guidelines section 4B1.1, a defendant

convicted of a § 846 conspiracy offense. The Kennedy decision recognized that, in order

to designate a defendant as a Guidelines career offender, the government must establish, in

relevant part, that “the instant offense of conviction is a felony that is . . . a controlled

substance offense.” See 32 F.3d at 887 (quoting USSG § 4B1.1). And the career offender

provision in Kennedy incorporates the same definition of “controlled substance offense”

used in the Guidelines provision at issue here. See USSG § 4B1.2(b) (defining “controlled



                                              17
substance offense” for career offender provision); see also id. § 2K2.1 cmt. n.1

(incorporating section 4B1.2 definitions).

       Contrary to today’s panel majority, the Kennedy parties’ arguments regarding the

career offender designation very much “involved whether a § 846 conspiracy conviction

qualifies as a controlled substance offense.” See ante 12. That is, Kennedy addressed and

answered three questions relevant to the defendant’s career offender status: (1) the

question of whether, as argued by the government, the district court had incorrectly

concluded that it lacked authority to render a factual finding essential to categorizing the

defendant as a career offender; (2) the question of whether, as argued by the defendant, the

Sentencing Commission had exceeded its statutory mandate by including conspiracy in the

definition of a controlled substance offense; and (3) the threshold question of whether a

§ 846 conspiracy is even a controlled substance offense at all.

       Understandably, the Kennedy decision first decided the threshold question, i.e.,

whether a § 846 conspiracy constitutes a controlled substance offense within the meaning

of Guidelines section 4B1.1. In so doing, Kennedy reviewed the pertinent section 4B1.2

definition and concluded that the defendant’s “instant offense of conviction — conspiracy

to distribute cocaine in violation of 21 U.S.C. § 846 — would clearly qualify as a career

offender offense under the Guidelines provisions and commentaries.” See 32 F.3d at 888.

Only then did the Kennedy panel deem it necessary and appropriate to resolve the

additional questions raised by the parties. See id. at 888, 890 (proceeding to the defendant’s

contention that “his conspiracy conviction [nonetheless] cannot qualify as a ‘controlled

substance offense’” because “the Sentencing Commission exceeded its statutory mandate

                                             18
in including drug conspiracy offenses in the [‘controlled substance offense’] definition,”

and to the government’s argument that the district court possessed “the authority to make

a factual finding, based on the trial record, as to when the instant drug conspiracy offense

actually started”).

       Having ruled that the Sentencing Commission did not exceed its statutory mandate

and that the district court had fact-finding authority, the Kennedy decision vacated the

defendant’s sentence and remanded for further proceedings on the defendant’s career

offender status. Significantly, we limited the Kennedy remand to the factual issue of when

the instant § 846 offense began, instructing that “[i]f the court determines that

conspiratorial activities began on or before [the critical date], then it must find [the

defendant] to be a career offender.” See Kennedy, 32 F.3d at 891 (emphasis added). By

imposing that limitation, the panel underscored that Kennedy had definitively decided that

a § 846 conspiracy qualifies as a controlled substance offense, obviating any further debate

or consideration of the question.

       In these circumstances, it is incorrect for today’s panel majority to dismiss as a

“passing observation” or mere “dictum” Kennedy’s conclusion that a § 846 conspiracy is a

controlled substance offense. See ante 13-14; see also Pittston Co. v. United States, 199

F.3d 694, 703 (4th Cir. 1999) (defining dictum as a “statement in a judicial opinion that

could have been deleted without seriously impairing the analytical foundations of the




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holding”).   Rather, our Kennedy decision constitutes controlling precedent on the

controlled substance offense question. *

       Because my friends have failed to adhere to the Kennedy precedent, I respectfully

dissent as to that aspect of the majority decision.




       *
         To the extent that the 2018 McCollum decision relied on by the panel majority
conflicts with our 1994 decision in Kennedy, the earlier of those decisions — Kennedy —
controls. See McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (en banc)
(explaining that “one panel cannot overrule another”).
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