                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-3158
                        ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                           Timothy Allen McWilliams,

                      lllllllllllllllllllllDefendant - Appellant.
                                       ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa - Des Moines
                                 ____________

                            Submitted: April 17, 2020
                              Filed: May 29, 2020
                                 [Unpublished]
                                 ____________

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
                        ____________

PER CURIAM.

       Timothy McWilliams pleaded guilty to one count of possession with intent to
distribute five grams or more of methamphetamine. See 21 U.S.C. § 841(a)(1),
(b)(1)(B). At sentencing, the district court1 varied downward from the advisory
guideline range of 188 to 235 months’ imprisonment and sentenced McWilliams to
151 months in prison. McWilliams argues on appeal that the district court committed
procedural error in calculating the advisory guideline range when it determined that
he qualified as a career offender under USSG § 4B1.1.

       The district court determined that McWilliams qualified as a career offender
based on his prior convictions in Iowa for domestic abuse assault and conspiracy to
manufacture a controlled substance. A defendant is a career offender if he “has at
least two prior felony convictions of either a crime of violence or a controlled
substance offense.” USSG § 4B1.1(a). A “controlled substance offense” includes an
offense that “prohibits the manufacture, import, export, distribution, or dispensing of
a controlled substance.” USSG § 4B1.2(b). Application Note 1 to § 4B1.2 states that
the terms “‘[c]rime of violence’ and ‘controlled substance offense’ include the
offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”
USSG § 4B1.2, comment. (n.1).

      McWilliams argues that his prior conviction for conspiracy to manufacture a
controlled substance does not qualify as a “controlled substance offense” because the
guideline does not encompass inchoate offenses like conspiracy and attempt. Citing
United States v. Havis, 927 F.3d 382, 387 (6th Cir. 2019) (en banc) (per curiam), and
United States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018), he contends that the
guideline commentary is invalid because it is inconsistent with the guideline and is
not an interpretation of the guideline at all.

      McWilliams’s argument is foreclosed by circuit precedent. United States v.
Merritt, 934 F.3d 809, 811 (8th Cir. 2019); United States v. Williams, 926 F.3d 966,


      1
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

                                         -2-
971 (8th Cir. 2019); United States v. Bailey, 677 F.3d 816, 818 (8th Cir. 2012) (per
curiam). These decisions construed United States v. Mendoza-Figueroa, 65 F.3d 691
(8th Cir. 1995) (en banc), as deciding that the commentary is valid, and that a drug
conspiracy offense is a controlled substance offense. Other circuits likewise have
held that the commentary is valid and that inchoate drug offenses qualify as
controlled substance offenses under the guidelines. United States v. Lange, 862 F.3d
1290, 1294-96 (11th Cir. 2017); United States v. Chavez, 660 F.3d 1215, 1226-28
(10th Cir. 2011); United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994); see also
United States v. Adams, 934 F.3d 720, 727-30 (7th Cir. 2019) (construing USSG
§ 2K2.1). We note that the Sentencing Commission has published a proposed
amendment to USSG § 4B1.2 that would resolve the disagreement among the circuits
on this issue. See Sentencing Guidelines for United States Courts, 83 Fed. Reg.
65400, 65412-15 (proposed Dec. 20, 2018) (to be codified at USSG § 4B1.2).

      For these reasons, there was no error in calculating the advisory guideline
range, and the judgment of the district court is affirmed.
                      ______________________________




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