                                                                              FILED
                           NOT FOR PUBLICATION                                  JUL 22 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30335

              Plaintiff - Appellee,              D.C. No. 6:13-cr-00006-CCL-1

 v.
                                                 MEMORANDUM*
VEGAS CLAY CALDER,

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Montana
                Charles C. Lovell, Senior District Judge, Presiding

                             Submitted July 6, 2015**
                                Portland, Oregon

Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

      Vegas Clay Calder appeals his 100-month sentence for being a felon in

possession of firearms, in violation of 18 U.S.C. § 922(g)(1), as enhanced by

U.S.S.G. § 2K2.1(a)(4). We have jurisdiction under 28 U.S.C. § 1291. Reviewing


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for plain error, United States v. Charles, 581 F.3d 927, 933 (9th Cir. 2009), we

affirm.

      Calder argues that the district court improperly concluded, without

conducting a categorical analysis, that his 2005 Montana conviction for conspiracy

to possess with intent to distribute methamphetamine in violation of Mont. Code

Ann. §§ 45-4-102 and 45-9-103 was a controlled substance offense under the

Sentencing Guidelines (“Guidelines”). We agree with Calder that the district court

erred by failing to conduct a categorical analysis, but this error did not affect

Calder’s substantial rights because his prior Montana conviction is a controlled

substance offense under the Guidelines.

      In assessing whether a prior state law conviction qualifies as a controlled

substance offense under the Guidelines, we employ the categorical and modified

categorical approaches from Taylor v. United States, 495 U.S. 575 (1990), and its

progeny to both the underlying drug offense and the conspiracy offense. See

United States v. Gomez-Hernandez, 680 F.3d 1171, 1174 (9th Cir. 2012).

      Montana’s criminal possession with intent to distribute statute, Mont. Code

Ann. § 45-9-103, is a divisible statute and therefore the modified categorical

approach may be used. Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014);

Coronado v. Holder, 759 F.3d 977, 983-85 (9th Cir. 2014); see also Montana


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Criminal Jury Instructions Nos. 9-104, 9-104(a) (jury instructed only as to

particular drug at issue). The judicially noticeable document in the record

demonstrates that Calder’s 2005 Montana conviction involved methamphetamine,

which is a controlled substance under both Montana and federal law. Mont. Code

Ann. § 50-32-101; 21 U.S.C. § 812.

      Montana’s conspiracy statute, Mont. Code Ann. § 45-4-102, is an indivisible

statute and therefore the categorical approach must be applied. Descamps v.

United States, 133 S. Ct. 2276, 2285 (2013). After surveying state and federal

conspiracy statutes, the Model Penal Code, and scholarly commentary, United

States v. Garcia-Santana, 774 F.3d 528, 534 (9th Cir. 2014), we find that

Montana’s conspiracy statute has the same elements as the generic definition of

conspiracy.

       Although the district court failed to conduct a categorical analysis, it

reached the correct result. Calder’s 2005 Montana conviction for conspiracy to

possess with intent to distribute methamphetamine in violation of Mont. Code Ann.

§§ 45-4-102 and 45-9-103 is a controlled substance offense and therefore

warranted the higher base offense level under U.S.S.G. § 2K2.1(a)(4).

      AFFIRMED.




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