                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3701
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Southern District of Iowa.
                                        *
Marquette Scott Walterman,              *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 13, 2003

                                  Filed: September 16, 2003 (corrected 9/25/03)
                                   ___________

Before BOWMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

HEANEY, Circuit Judge.

       Marquette Scott Walterman pleaded guilty to one count of conspiracy to
manufacture and distribute methamphetamine, in violation of 21 U.S.C. §§
841(b)(1)(B) and 846. At sentencing, the district court found that Walterman
qualified as a career offender under United States Sentencing Guideline § 4B1.1
because he had previously been convicted of two felony controlled substance
offenses. Walterman moved for a downward departure under United States
Sentencing Guideline § 4A1.3, arguing that his criminal history category significantly
over-represented the seriousness of his criminal history or the likelihood that he
would commit future crimes. The district court denied the motion, and sentenced
Walterman to 262 months, the low end of his guideline range of 262-327 months.
Walterman now appeals the district court’s application of the career offender
enhancement and denial of his motion for a downward departure. We reverse in part
and remand for resentencing absent the career offender enhancement.

       Generally, a district court’s determination of whether a defendant’s prior
convictions qualify him as a career offender is factual, and thus we review for clear
error. United States v. Stevens, 149 F.3d 747, 749 (8th Cir. 1998). A defendant is
subject to a sentence enhancement as a career offender if, inter alia, he has at least
two prior felony convictions for controlled substance offenses. USSG § 4B1.1(a).
According to the Guidelines,

      The term “controlled substance offense” means 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.

USSG § 4B1.2(b).

      Prior to the instant offense, Walterman had twice been convicted in Iowa state
court of possession of precursor chemicals with intent to manufacture a controlled
substance, in violation of Iowa Code § 124.401.4. At least one of these convictions
was based on facts indicating Walterman possessed lithium with the intent to
manufacture methamphetamine.1

      1
        Walterman’s presentence report states that both of his predicate drug offenses
were for possession of lithium with intent to manufacture methamphetamine. But, in
his brief and during oral argument before this court, Walterman stated that the latter
of these two convictions was actually based on possession of a product containing
ephedrine with intent to manufacture. We see no need to resolve this inconsistency,
for Walterman only appeals the finding of the district court that the first of these two

                                          -2-
       A felony conviction for possession of a precursor chemical with intent to
manufacture a controlled substance does not fall under either category of controlled
substance offenses defined in Guideline § 4B1.2(b). First, it is not a conviction for
the “manufacture, import, export, distribution, or dispensing of a controlled substance
offense.” USSG § 4B1.2(b). This section is concerned strictly with controlled
substances, and lithium is not one. Even if lithium was a controlled substance, this
section would not apply because each of the referenced acts requires something more
than just possession, be that making, buying, selling, or giving away drugs.2

      While the remainder of the guideline purports to deal with the same conduct
that Walterman had previously been convicted of–possession with intent to
manufacture–it is equally inapplicable. This is so because, by its own language, the
guideline is concerned only with possession of controlled substances, a class of
chemicals to which lithium does not belong.

      That does not end the matter, however. The related guideline application note
advises that in some instances possessing precursor chemicals with the intent to
manufacture a controlled substance will be considered a controlled substance



offenses was a controlled substance offense within the meaning of § 4B1.1 of the
United States Sentencing Guidelines.
      2
       The dissent suggests that this provision applies to Walterman’s prior conduct
because it includes violations of state laws prohibiting the manufacture of controlled
substances. While we agree that state law prohibitions on the manufacture of
controlled substances are included as controlled substance offenses, this is not
Walterman’s offense of conviction; he was convicted of a possessory
offense–possession of a non-controlled substance with the intent to manufacture a
controlled substance. Section 4B1.2(b) itself separates out possessory offenses,
including those with intent to manufacture, from other controlled substance offenses,
and we do not think it prudent to re-write the Guidelines in the way suggested by the
dissent.

                                         -3-
offense.3 “Unlawfully possessing a listed chemical with intent to manufacture a
controlled substance (21 U.S.C. § 841(d)(1)) is a ‘controlled substance offense.’”
USSG § 4B1.2, cmt. n.1. “Listed chemicals” are defined as any chemical specified
as a list I or list II chemical, see 21 U.S.C. § 802(33), and lithium is neither a list I nor
list II chemical, see 21 U.S.C. § 802 (34) & (35). Thus, while this portion of the
application note considers unlawful possession of precursors such as ephedrine4 as
a controlled substance offense for purposes of the career offender enhancement, it
does not apply to unlisted precursors such as lithium.

        The government suggests that “the application note following [Guideline] §
4B1.2 provides examples, though by no means an exclusive list, of what types of
offenses may constitute a controlled substance offense for purposes of the career
offender guideline.” (Gov’t Br. at 7.) We disagree. The application note to
Guideline § 4B1.2 clearly states that “[u]nlawfully possessing a listed chemical . . .
is a ‘controlled substance offense.’” USSG § 4B1.2, cmt. n.1. The commentary then
references federal statutes which spell out what chemicals are “listed,” and, by
omission, those that are not. If the Sentencing Commission had meant this
commentary to be exemplary, it could have simply advised that unlawfully possessing
any precursor, including listed chemicals, is a controlled substance offense. It did not
do so, and we decline the government’s invitation to read any alleged ambiguity in
its favor. See Simpson v. United States, 435 U.S. 6, 14-15 (1978) (holding rule of
lenity does not permit enhancement of defendant’s sentence under ambiguous
criminal statute); cf. Crandon v. United States, 494 U.S. 152, 160 (1990) (“Because
construction of a criminal statute must be guided by the need for fair warning, it is



       3
       Sentencing guideline commentary is authoritative unless it violates the
Constitution or is inconsistent with federal law. Stinson v. United States, 508 U.S.
36, 37-38 (1993).
       4
           Ephedrine is a list I chemical. 21 U.S.C. § 802(34)(C).

                                            -4-
rare that the legislative history or statutory policies will support a construction of a
statute broader than that clearly warranted by the text.”).

       The government next relies on another sentence in the commentary:
“Unlawfully possessing a prohibited flask or equipment with intent to manufacture
a controlled substance (21 U.S.C. § 843(a)(6)) is a ‘controlled substance offense.’”
USSG § 4B1.2, cmt. n.1. As the argument goes, because this portion of the
commentary refers to § 843(a)(6), and that statute prohibits possession of any
chemical (listed or not) with intent to manufacture a controlled substance, the
conviction for possession of lithium qualifies as a controlled substance offenses under
this provision.

       The problem with the government’s reasoning is that it relies on commentary
which fails to address precursor chemicals; rather, this provision is concerned only
with possession of drug-making flasks or equipment. The commentary refers the
reader to § 843(a)(6), which is a catch-all prohibition on the possession of flasks,
equipment, machines, products, and chemicals for use in manufacturing controlled
substances. If the Sentencing Commission sought to include all of these matters as
qualifying controlled substance offenses, the related application note would not have
limited itself by only mentioning flasks and equipment. Moreover, another section
of the commentary deals with chemicals and includes only listed chemicals. Using
the government’s proposed interpretation, these two sections of the commentary
would state that possession of listed chemicals with intent to manufacture is a
controlled substance offense, and possession of any chemical with intent to
manufacture is an controlled substance offense. In other words, the government
supports an interpretation that would render part of the commentary superfluous.
This obviously was not the intent of the Sentencing Commission. The sections are
intended to be harmonious and complimentary, with one section addressing
possession of listed precursor chemicals and another section addressing possession
of flasks and other manufacturing equipment. The district court erred in finding that

                                          -5-
Walterman’s conviction for possession of lithium with intent to manufacture
methamphetamine qualified as a controlled substance offense for purposes of the
career offender enhancement. Accordingly, we reverse the district court on that issue
and remand for resentencing without application of the career offender enhancement.

       Walterman next argues that the district court erred when, according to him, it
concluded that it did not possess the authority to grant a downward departure on the
ground that his criminal history category significantly over-represented the
seriousness of his criminal history. See USSG § 4A1.3. Absent an unconstitutional
motive, we have no authority to review a district court’s discretionary decision not
to depart from a guideline sentencing range. United States v. VanHouten, 307 F.3d
693, 696 (8th Cir. 2002). As we have noted, an exception to this rule may exist where
“the district court somehow believed that it lacked power to exercise [its] discretion
to grant [the defendant] a downward departure.” Id. Walterman argues the district
court incorrectly believed that our decision in United States v. Butler, 296 F.3d 721
(8th Cir. 2002), cert. denied, 123 S.Ct. 1366 (2003), prohibited a departure under
Guideline § 4A1.3. We do not think the record supports this claim.

       In Butler, we held the district court abused its discretion in departing
downward on the basis that the defendant’s criminal history significantly over-
represented the seriousness of his past criminal conduct. Id. at 725. Here, the district
court refused to grant Walterman’s motion for a downward departure in light of
Walterman’s lengthy criminal history. While the record shows that the district court
might have had misgivings about the outcome, it does not support Walterman’s
argument that the district court believed it lacked authority to depart. On the
contrary, the record suggests the district court was aware of its authority to depart, but
found that Walterman’s criminal history was “not sufficiently unusual” to justify a
downward departure. (Sent. Tr. at 18.) We are without authority to review this
discretionary ruling. VanHouten, 307 F.3d at 696; United States v. Mau, 958 F.2d
234, 237 (8th Cir. 1992).

                                           -6-
      For the reasons stated herein, we affirm in part, reverse in part, and remand for
resentencing without application of the career offender enhancement.

BOWMAN, Circuit Judge, dissenting.

       I respectfully dissent. The opinion of the Court mistakenly concludes that the
District Court erred in finding that Walterman qualified for the career-offender
enhancement pursuant to § 4B1.1 of the United States Sentencing Guidelines
(U.S.S.G.) (2001). Because the District Court did not err in making this
determination, I would affirm Walterman's sentence.

       Walterman pleaded guilty to one count of conspiracy to manufacture five grams
or more of methamphetamine. See 21 U.S.C. §§ 846, 841(a)(1) (2000). At his
arraignment, the government notified Walterman of its intent to seek an enhancement
of his sentence based on his two prior drug-felony convictions. Those two felony
convictions arose from violations of Iowa Code § 124.401-4 (2001), which prohibits
the possession of a precursor (including lithium) with intent to manufacture a
controlled substance. According to the presentence report (PSR), Walterman was
arrested on July 15, 1999, for possession of lithium with intent to manufacture
methamphetamine. PSR ¶ 55. The following year, on March 24, 2000, Walterman
was once again arrested for violating this same law for possessing a product
containing ephedrine with the intent to manufacture methamphetamine. Id. ¶ 58;
Brief for Appellant at 4–5.5 Walterman was convicted of both these offenses. Based


      5
       The PSR states that this second state-law drug offense was for possession of
lithium with intent to manufacture methamphetamine. PSR ¶ 58. But, in his brief
and during oral argument before this Court, Walterman states that the charge was
actually for possession of a product containing ephedrine with the intent to
manufacture. Brief for Appellant at 5. Walterman only appeals the finding of the
District Court that his conviction for possession of lithium with intent to manufacture
methamphetamine (the 1999 charge) is a controlled-substance offense within the

                                         -7-
on these two prior felony convictions, the District Court applied the career-offender
enhancement pursuant to § 4B1.1 and increased Walterman's criminal history to
category VI, and, with an offense level of 34, sentenced Walterman to 262 months of
imprisonment.

      Under § 4B1.1, Walterman is a career offender if (1) he was at least eighteen
years of age at the time he committed the instant federal offense, (2) the instant
federal offense is a felony that is a crime of violence or a controlled substance
offense, and (3) he has at least two prior felony convictions of either a crime of
violence or a controlled substance offense. Here, the Court concludes that
Walterman's felony conviction in 1999 for possession of lithium with the intent to
manufacture methamphetamine is not a "controlled substance offense" for purposes
of § 4B1.1. Specifically, the Court argues that this felony conviction "does not fall
under either category of controlled substance offenses defined in Guideline
§ 4B1.2(b)." Ante at 3. In my view, the Court misreads § 4B1.2(b).

      Section 4B1.2(b) provides two ways for prior felony offenses to qualify for the
career-offender enhancement under § 4B1.1:

      The term "controlled substance offense" means 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 counterfeit substance) with
      intent to manufacture, import, export, distribute, or dispense.

§ 4B.1.2(b) (emphasis added).


meaning of § 4B1.1. He does not contest that his conviction in 2000 for possession
of a product containing ephedrine with intent to manufacture was a controlled-
substance offense within the meaning of § 4B1.1.

                                        -8-
       Walterman's conviction for possessing lithium with intent to manufacture fits
squarely within the first part of § 4B1.2(b)'s definition of a controlled substance
offense because it is "an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits the manufacture . . . of a
controlled substance." U.S.S.G. § 4B1.2(b) (emphasis added). Walterman concedes
that § 124.401-4 of the Iowa Code makes it a class "D" felony, punishable by a term
of imprisonment exceeding one year, to possess lithium with the intent to use that
chemical to manufacture any controlled substance. This Iowa statute fits the
definition of a "controlled substance offense" because it prohibits the manufacture of
a controlled substance—methamphetamine—by prohibiting the possession of its
precursors with intent to manufacture methamphetamine. Contrary to the opinion of
the Court, nowhere in the first part of § 4B1.2(b)'s definition of a controlled substance
offense does it state that the defendant must actually possess "a controlled substance."
Rather, that part of the provision only requires that the offense be a violation of
"federal or state law . . . that prohibits the manufacture . . . of a controlled substance."
The opinion of the Court conflates the second part of § 4B1.2(b)'s definition of a
controlled substance offense, which may require that the defendant actually possess
"a controlled substance," with the first part of § 4B1.2(b)'s definition, which has no
such requirement. I have no doubt that Walterman's conviction for possession of
lithium with intent to manufacture methamphetamine (stemming from his 1999 arrest)
is a controlled-substance offense within the definition of § 4B.1.1.

      According to the opinion of the Court, Walterman's 1999 conviction for
possession of lithium with intent to manufacture methamphetamine was only a
"possessory" offense and not a "manufacturing" offense. Ante at n.2. I fail to see the
relevance of this distinction. First, there is no reason to conclude that because
Walterman's 1999 offense was for possession of lithium with intent to manufacture
methamphetamine that such a "possessory" offense cannot, by definition, also be a
"manufacturing" offense. After all, Walterman was convicted for possession with
intent to manufacture methamphetamine. Second, the opinion of the Court

                                            -9-
compounds its error by again conflating the two parts of § 4B1.2(b) by reading into
the first part of § 4B1.2(b) a requirement that Walterman actually possess "a
controlled substance." As noted, the first part of § 4B1.2(b) only requires that
Walterman manufacture a controlled substance. Walterman's 1999 conviction fits that
requirement.

       I also note the Government makes a compelling argument that application
note 1 of § 4B1.2 further supports the propriety of the District Court's imposition of
the career-offender enhancement. Specifically, the comment to note 1, which adds
to the list of prior offenses that qualify for career-offender status and which states
"[u]nlawfully possessing a prohibited flask or equipment with intent to manufacture
a controlled substance (21 U.S.C. § 843(a)(6)) is a 'controlled substance offense,'"
would seem to bring Walterman's state felony conviction for possession of lithium
with intent to manufacture methamphetamine within § 4B1.2's ambit. See § 4B1.2,
cmt. n.1. I agree with the Government that the reference in that application note to
§ 843(a)(6) is a shorthand reference, which incorporates all of the prohibitions in
§ 843(a)(6), including the possession of "any . . . chemical, product or material which
may be used to manufacture a controlled substance." 21 U.S.C. § 843(a)(6)
(emphasis added). Here, this comment justifies the District Court's imposition of the
career-offender enhancement because Walterman possessed a chemical (lithium) with
intent to manufacture a controlled substance (methamphetamine).

      The Court contends that "[i]f the Sentencing Commission sought to include
all of these matters as qualifying controlled substance offenses, the related
commentary would not have limited itself by only mentioning flasks and equipment."
Ante at 5. This argument is suspect for several reasons. First, the Court's view leads
to the incongruous result that possession of flasks and equipment with intent to
manufacture is a controlled substance offense, while possession of any other product,
chemical or material with a similar intent would not be a controlled substance
offense. Why would Congress want to punish possession of flasks or equipment

                                         -10-
more harshly than other materials listed in 21 U.S.C. § 843(a)(6)? Second,
application note 1 to § 4B1.2 enumerates examples, not an exclusive list, of crimes
constituting controlled substance offenses. For example, one of the other comments
in application note 1 to § 4B1.2 states that "[m]aintaining any place for the purpose
of facilitating a drug offense (21 U.S.C. § 856) is a 'controlled substance offense.'"
§ 4B1.2 cmt. n.1. That comment references 21 U.S.C. § 856(a), which prohibits
knowingly maintaining or opening any place for the purpose of manufacturing a
controlled substance. See 21 U.S.C. § 856(a)(1). While that comment to § 4B1.2
does not mention, as the statute does, opening a place for purposes of manufacturing
a controlled substance, it seems implausible that such conduct would not constitute
a controlled substance offense. Again, I highly doubt that Congress or the Sentencing
Commission intended only to punish the maintaining, not opening, of a place for
purposes of manufacturing a controlled substance. Yet, the Court's interpretation of
application note 1 would lead to this absurd result.

      Accordingly, for the reasons stated, I dissent.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -11-
