                  United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1864
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                    Robert J. Reid

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                           Submitted: January 12, 2018
                              Filed: April 10, 2018
                                 ____________

Before COLLOTON, BENTON, and ERICKSON, Circuit Judges.
                          ____________

BENTON, Circuit Judge

       Robert J. Reid pled guilty to possessing heroin with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court1 increased his

      1
       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.
offense level based on two prior Missouri convictions under section 195.211, RSMo
2002: (1) attempted possession of a controlled substance with the intent to deliver
not more than five grams of marijuana, and (2) delivery of not more than five grams
of marijuana. Reid requested a variance to a sentence of 51 to 63 months. The
district court disagreed, sentencing him to the bottom of the Guidelines range—151
months’ imprisonment. Reid appeals, arguing his convictions are not for controlled
substance offenses, and that the sentence is substantively unreasonable. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                                I.

      Reid argues that based on Missouri case law, his two convictions do not meet
the Guidelines definition of controlled substance offense and thus cannot increase his
offense level. As stated in this court’s decision in United States v. Thomas, No. 17-
2213 (8th Cir. Apr. _, 2018), this argument fails.

                                                II.

       Reid did not raise his two other issues in the district court. This court reviews
them for plain error. See United States v. Ruiz-Salazar, 785 F.3d 1270, 1272 (8th
Cir. 2015) (per curiam). Under plain error review, “the party seeking relief must
show that there was an error, the error is clear or obvious under current law, [and] the
error affected the party’s substantial rights.” United States v. Poitra, 648 F.3d 884,
887 (8th Cir. 2011). If these conditions are met, “the court of appeals has the
discretion to remedy the error—discretion which ought to be exercised only if the
error ‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Puckett v. United States, 556 U.S. 129, 135 (2009) (alteration in
original) (internal citations omitted).

                                                A.

      Reid argues that the statute violated in his first conviction, section 195.211,
criminalizes “double attempt”: attempted possession of a controlled substance with

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the intent to attempt to distribute. He concludes that the statute would then
criminalize conduct broader than the Guidelines definition.

       The least act criminalized by section 195.211 is “an attempt to distribute a
controlled substance.” Thomas, slip op. at 5. Missouri requires, for a conviction
under section 195.211, that a defendant “knew” that the substance he attempted to sell
was a controlled substance and did an act more than “the mere utterance of the offer
for sale.” See State v. Sammons, 93 S.W.3d 808, 812 (Mo. App. 2002). Section
195.211 criminalizes an attempt to commit a controlled substance offense within the
Guidelines definition. See § 4B1.2(b), incorporated by § 2K2.1, cmt. n.1; § 4B1.2,
cmt. n.1.

                                               B.

       On appeal, relying on state-court documents, Reid and the government agree
that both of his convictions involved not more than five grams of marijuana—a class
C felony under Missouri law. Reid argues that the United States Sentencing
Commission exceeded its authority under 28 U.S.C. § 994(h) by allowing his
convictions to count as controlled substance offenses, because they are “the
functional equivalent of misdemeanor drug possession cases” under federal law. See
21 U.S.C. § 841(b)(4) (“distributing a small amount of marihuana for no
remuneration” has a penalty of “not more than 1 year” under 21 U.S.C. § 844).

       Reid’s argument has no merit. “[T]he Commission enjoys significant
discretion in formulating guidelines.” Mistretta v. United States, 488 U.S. 361, 377
(1989). In section 994(h), Congress did not “specify how the Commission should
define ‘felony.’” See United States v. Coleman, 635 F.3d 380, 382 (8th Cir. 2011).
“Accordingly, the Commission was free to define ‘prior felony conviction’ for
purposes of the career offender Guidelines as an ‘adult federal or state conviction for
an offense punishable by death or imprisonment for a term exceeding one year.’” Id.
(a state misdemeanor conviction is a qualifying felony under the Guidelines even
when it is punishable by imprisonment for “less than two years”). See generally

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United States v. Consuegra, 22 F.3d 788, 790 (8th Cir. 1994) (“the Sentencing
Commission . . . did not exceed its congressional directive by including state drug
crimes in its definition of controlled substance offenses for which earlier convictions
are counted towards career offender status”), cited with approval in United States v.
Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir. 1995) (en banc).

      The district court did not err, let alone commit plain error, by increasing the
offense level based on the two prior Missouri controlled substance offenses.

                                                III.

       This court reviews the substantive reasonableness of sentences for abuse of
discretion. See United States v. Luleff, 574 F.3d 566, 569 (8th Cir. 2009). Abuse of
discretion occurs if the district court “fails to consider a relevant factor that should
have received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error judgment
in weighing those factors.” United States v. Cook, 698 F.3d 667, 670 (8th Cir. 2012).
The “sentencing court has wide latitude to weigh the § 3553(a) factors in each case
and assign some factors greater weight than others in determining an appropriate
sentence.” United States v. Farmer, 647 F.3d 1175, 1179 (8th Cir. 2011).

      The district court sentenced Reid to the Guidelines minimum of 151 months.
The district court discussed Reid’s personal history. Replying to defense counsel’s
description of Reid’s childhood as horrific and abusive, the district court agreed that
he “did have some bad things” happen to him. The court emphasized the “serious
nature” of the offense, noting he was “a convicted felon, possessing 22.597 grams of
heroin . . . and possessing a semi-automatic firearm loaded with eight rounds of
ammunition.” The court stressed that the offense occurred while Reid was on
probation, and that his criminal history was significant, including “drug-related
weapon possessions, burglary, tampering and resisting arrest convictions.” After
acknowledging the § 3553(a) factors, the court imposed a sentence that “would



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address the sentencing objectives of just punishment, general deterrence and
incapacitation.” The district court did not abuse its discretion in sentencing Reid.

                                      *******

      The judgment is affirmed.

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