                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2500
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                   Edward Merritt

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                            Submitted: April 18, 2019
                             Filed: August 16, 2019
                                 ____________

Before SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.
                              ____________

KELLY, Circuit Judge.

       Edward Tyrone Merritt pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the
district court1 determined that Merritt’s prior conviction under 21 U.S.C. §§

      1
        The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
841(a)(1), (b)(1)(A), and 846 for conspiracy to possess with intent to distribute 50
grams or more of cocaine qualified as a “controlled substance offense.” As a result,
it calculated a base offense level of 20 under United States Sentencing Guidelines
§ 2K2.1(a)(4)(A) (2016) and an advisory Guidelines range of 46 to 57 months of
imprisonment. The district court sentenced Merritt to 46 months. Merritt appeals his
sentence, arguing that his prior drug conspiracy conviction is not a controlled
substance offense under the Guidelines.

      When reviewing a sentence for procedural error, “we review the district court’s
construction and application of the sentencing [G]uidelines de novo and its factual
findings for clear error.” United States v. Maldonado, 864 F.3d 893, 897 (8th Cir.
2017) (cleaned up) (quoting United States v. Hagen, 641 F.3d 268, 270 (8th Cir.
2011)).

       The Guidelines define a controlled substance offense as “an offense under
federal or state law . . . that prohibits . . . the possession of a controlled substance .
. . with intent to . . . distribute.” USSG § 4B1.2(b). The commentary states that a
“‘controlled substance offense’ include[s] the offenses of aiding and abetting,
conspiring, and attempting to commit such offense[].” USSG § 4B1.2(b), cmt. (n.1).

       Merritt first argues that drug conspiracy convictions do not fall within this
definition because Note 1 cannot add conspiracy offenses to the definition in §
4B1.2(b), which he argues specifically omits inchoate offenses. This argument is
foreclosed by United States v. Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995) (en
banc), in which our en banc court determined that conspiracy to commit a controlled
substance offense is itself a controlled substance offense as defined by the Guidelines.
See id. at 694. Our panel may not overrule a decision of the en banc court. United
States v. Lucas, 521 F.3d 861, 867 (8th Cir. 2008).




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       Merritt argues in the alternative that, under the categorical approach, § 846
conspiracy is broader than generic conspiracy because it does not require an overt act.
Because Merritt did not raise this argument before the district court, we review for
plain error. See United States v. Thomas, 886 F.3d 1274, 1275 (8th Cir. 2018). To
succeed on plain error review, Merritt must show (1) an error; (2) that is plain; (3)
that affects his substantial rights; and (4) that seriously affects “the fairness, integrity,
or public reputation of judicial proceedings.” United States v. Boman, 873 F.3d
1035, 1040 (8th Cir. 2017) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)).

       This court has not yet considered whether courts must apply the categorical
approach to determine whether a conviction under § 846, a federal statute, qualifies
as a controlled substance offense. In analogous circumstances, our sister circuits
appear split as to whether it is necessary to determine whether a federal conspiracy
statute is a categorical match for generic conspiracy. Compare United States v.
Rivera-Constantino, 798 F.3d 900, 903–04 (9th Cir. 2015) (concluding there is no
need to ascertain whether § 846 conspiracy is a categorical match for generic
conspiracy to determine that § 846 conspiracy qualifies as a “drug trafficking
offense” within the meaning of USSG § 2L1.2); United States v. Sanbria-Bueno, 549
F. App’x 434, 438–39 (6th Cir. 2013) (same); United States v. Rodriguez-Escareno,
700 F.3d 751, 753–54 (5th Cir. 2012) (same); with United States v. McCollum, 885
F.3d 300, 305–09 (4th Cir. 2018) (holding conspiracy to commit murder in aid of
racketeering under 18 U.S.C. § 1959(a)(5) is not a categorical match for generic
conspiracy and therefore not a “crime of violence” within the meaning of USSG
§ 4B1.2(a)); United States v. Martinez-Cruz, 836 F.3d 1305, 1313–14 (10th Cir.
2016) (holding § 846 conspiracy is not a categorical match for generic conspiracy and
therefore not a “drug trafficking offense” within the meaning of USSG § 2L1.2).
“[G]iven the lack of authority on this issue in this circuit and a split in authority in
other circuits, even if there were error, it would not be plain or obvious.” United
States v. Jordan, 877 F.3d 391, 396 (8th Cir. 2017).

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       Because Merritt cannot show any error “that is clear or obvious under current
law” he cannot satisfy the requirements of plain error review. United States v.
Lovelace, 565 F.3d 1080, 1092 (8th Cir. 2009). Accordingly, we affirm the judgment
of the district court.
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