                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-3685
                        ___________________________

                            United States of America

                                       Plaintiff - Appellee

                                        v.

                           Theodore David Newcomb

                                     Defendant - Appellant
                                 ____________

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

                            Submitted: March 9, 2020
                              Filed: April 28, 2020
                                 [Unpublished]
                                 ____________

Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
                           ____________

PER CURIAM.

      Theodore Newcomb pled guilty to conspiracy to manufacture, distribute, and
possess with intent to distribute five grams or more of actual methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. The district court1 determined
that Newcomb was a career offender and imposed a low-end of the guidelines
sentence of 188 months. In this appeal Newcomb challenges his designation as a
career offender. We affirm.

      The Presentence Investigative Report identified three felony convictions in
Newcomb’s criminal history that could qualify as predicate convictions under the
career offender guideline: (1) possession of pseudoephedrine with intent to
manufacture methamphetamine, in violation of Iowa Code §§ 124.401(4)(a) & (b);
(2) manufacture of methamphetamine, in violation of Iowa Code § 124.401(1)(c)(6);
and (3) conspiracy to manufacture methamphetamine, in violation of Iowa Code §
124.401(1)(c). Newcomb objected, arguing that his prior convictions did not meet
the definition of “controlled substance offense” under U.S.S.G. § 4B1.2.

       At sentencing, the government provided evidence to support each prior felony
drug offense, including two additional convictions the government argued also
qualified as predicate offenses: (1) possession of pseudoephedrine with intent to
manufacture methamphetamine, in violation of Iowa Code § 124.401(4)(b); and
possession of precursors with intent to manufacture a controlled substance, in
violation of Iowa Code § 124.401(4). The government also illuminated Newcomb’s
Iowa conspiracy conviction by offering Shepherd documents to show that Newcomb
was charged with conspiracy to manufacture methamphetamine under §
124.401(1)(c)(6), and later convicted of “the lesser and included offense” of
conspiracy to manufacture methamphetamine under Iowa Code §§ 124.401(1)(c),
706.1, and 706.3.




      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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       The district court held that each of Newcomb’s five felony drug convictions
qualified as predicate offenses under the career offender guideline. Newcomb was
in Criminal History Category VI, with or without the career offender designation.
The application of the career offender guideline did, however, increase his total
offense level from 25 to 31, increasing the guideline range from 110 to 137 months
to 188 to 235 months. The court sentenced Newcomb to 188 months. On appeal,
Newcomb renews his argument that his prior Iowa convictions do not meet the
definition of “controlled substance offense” in U.S.S.G. § 4B1.2.

       We review de novo a district court’s decision that a prior conviction qualifies
as a sentencing enhancement predicate, including application of the career offender
guideline. United States v. Eason, 643 F.3d 622, 623 (8th Cir. 2011). Newcomb is
a career offender under the guideline if his criminal history includes “at least two
prior felony convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1. A “controlled substance offense” is “an offense . . . 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.” U.S.S.G. §4B1.2(b). In the commentary to § 4B1.2, the Sentencing
Commission specified that “controlled substance offense” includes the offenses of
aiding and abetting and conspiracy. U.S.S.G. § 4B1.2, comment. (n.1).

       Newcomb’s claim that convictions under Iowa Code § 124.401(1)(c) do not
qualify as predicate offenses because Iowa’s law is broader than the federal
definition of “controlled substance offense” is foreclosed by precedent. United States
v. Boleyn, 929 F.3d 932, 940 (8th Cir. 2019) (explaining that Iowa’s aiding and
abetting law is “substantially equivalent to” the federal standard for purposes of
determining whether a controlled substance conviction is a qualifying predicate
offense).



                                         -3-
      Newcomb also argues that one of his prior convictions under § 124.401(1)(c)
for conspiracy to manufacture methamphetamine is not a predicate offense because
his conviction references §§ 706.1 and 706.3, which set forth the definition and
penalty for generic conspiracy. Whether a person is convicted under § 124.401(1)(c),
a Class C felony, or under §§ 706.1 and 706.3, a Class D felony, the crime of
conviction is the same – conspiracy to manufacture methamphetamine.

       Under Iowa law, the object of the conspiracy is an element of the conspiracy
offense, which must be proven beyond a reasonable doubt. See State v. Boyer, 342
N.W.2d 497, 499 (Iowa 1984) (“[W]e hold that section 706.1 requires that the
conspirators actually agree at some point on the criminal act that serves as the object
of the conspiracy.”). We have held that “conspiracy to commit a controlled substance
offense is itself a controlled substance offense as defined by the Guidelines.” United
States v. Merritt, 934 F.3d 809, 811 (8th Cir. 2019). Newcomb’s prior Iowa
conviction for conspiracy to manufacture methamphetamine under § 124.401(1)(c)
is a predicate offense.

      Newcomb has two qualifying prior convictions that meet the definition of
“controlled substance offense” under U.S.S.G § 4B1.2. Because Newcomb was
properly designated a career offender, we do not consider his other contentions. The
judgment of the district court is affirmed.
                ________________________________________




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