                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1833
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                             Christopher John Mayne

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                          Submitted: February 12, 2015
                             Filed: April 14, 2015
                                ____________

Before BYE, BEAM, and BENTON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

     Police searched Christopher John Mayne’s vehicle, seizing 180
pseudoephedrine pills, methamphetamine, and other items used to manufacture meth.
He pled guilty to possession of pseudoephedrine knowing it would be used to
manufacture meth, in violation of 21 U.S.C. § 841(c)(2). Mayne had three prior
felonies. The district court1 determined he was a career offender under section 4B1.1
of the federal sentencing guidelines. Mayne appeals. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.

      This court reviews the “interpretation and application of the sentencing
guidelines de novo.” United States v. Mohr, 772 F.3d 1143, 1145 (8th Cir. 2014).

      A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant
      offense of conviction; (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense; and
      (3) the defendant has at least two prior felony convictions of either a
      crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). Mayne believes he is not a career offender because he interprets
“controlled substance offense” not to include his instant offense.

       A “controlled substance offense” is a 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.” Id. § 4B1.2(b). Mayne relies on Application
Note 1 of section 4B1.2, which specifically lists § 841(c)(1) as a “controlled
substance offense,” but does not list § 841(c)(2).2 Id. § 4B1.2, cmt. n.1.


      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
      2
          21 U.S.C. § 841(c) provides:

      Any person who knowingly or intentionally—

      (1) possesses a listed chemical with intent to manufacture a controlled
                                         -2-
       Mayne’s interpretation is not persuasive. In 28 U.S.C. § 994, Congress
directed the Sentencing Commission to promulgate the sentencing guidelines.
Subsection (h) provides:

     (h) The Commission shall assure that the guidelines specify a sentence
     to a term of imprisonment at or near the maximum term authorized for
     categories of defendants in which the defendant is eighteen years old or
     older and—
            (1) has been convicted of a felony that is—
                   (A) a crime of violence; or
                   (B) an offense described in section 401 of the Controlled
                   Substances Act (21 U.S.C. 841), sections 1002(a), 1005,
                   and 1009 of the Controlled Substances Import and Export
                   Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of
                   title 46; and
            (2) has previously been convicted of two or more prior felonies,
            each of which is—
                   (A) a crime of violence; or
                   (B) an offense described in section 401 of the Controlled
                   Substances Act (21 U.S.C. 841), sections 1002(a), 1005,
                   and 1009 of the Controlled Substances Import and Export
                   Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of
                   title 46.


     substance except as authorized by this subchapter;

     (2) possesses or distributes a listed chemical knowing, or having reasonable
     cause to believe, that the listed chemical will be used to manufacture a
     controlled substance except as authorized by this subchapter; . . .

     ....

     shall be fined in accordance with Title 18 or imprisoned not more than 20 years
     in the case of a violation of paragraph (1) or (2) involving a list I chemical or
     not more than 10 years in the case of a violation of this subsection other than
     a violation of paragraph (1) or (2) involving a list I chemical, or both.
                                        -3-
28 U.S.C. § 994(h) (emphases added). In response, the Commission created section
4B1.1, the Career Offender guideline. Section 994(h) includes any § 841 offense
(that is a felony conviction). Section 994(h) “does not define the only crimes for
which the Commission may specify a sentence at or near the maximum.” United
States v. Baker, 16 F.3d 854, 857 (8th Cir. 1994). But, § 994(h) “merely declares that
the enumerated crimes must be so treated.” Id.

      Application Note 1 does not provide an exhaustive list of “controlled substance
offenses.” The Commission addressed § 841(c)(1) in response to a circuit conflict
about whether possession of a listed chemical with intent to manufacture a controlled
substance is a “controlled substance offense.” United States Sentencing
Commission, Guidelines Manual, app. C., amend. 568 (2003) (eff. Nov. 1, 1997).
The Commission did not address § 841(c)(2) in Application Note 1 because it was not
at issue in the circuit cases. Compare United States v. Calverley, 11 F.3d 505, 511-
12 (5th Cir. 1993) (holding that possession of listed chemical with intent to
manufacture controlled substance is “controlled substance offense”), aff’d en banc,
37 F.3d 160, 165 (5th Cir. 1994), with United States v. Wagner, 994 F.2d 1467, 1475
(10th Cir. 1993) (contra), superseded by U.S.S.G. § 4B1.2, cmt. n.1 (1997) as
recognized in United States v. Smith, 433 F.3d 714, 717 (10th Cir. 2006). The
Commission’s omission of § 841(c)(2) in Application Note 1 does not override the
directive of § 994(h). See United States v. Stoneking, 60 F.3d 399, 402 (8th Cir.
1995) (en banc) (explaining that Commission’s commentary is binding unless
trumped by a federal statute).

      This court holds that a conviction under § 841(c)(2) is a “controlled substance
offense” for purposes of section 4B1.1, the Career Offender guideline.

                                    *******

      The judgment is affirmed.
                     ______________________________

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