United States v. Edward Merritt
934 F.3d 809
8th Cir.2019Background
- Defendant 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 court treated Merritt’s prior conviction under 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (conspiracy to possess with intent to distribute ≥50g cocaine) as a “controlled substance offense” under the Sentencing Guidelines.
- The court applied USSG § 2K2.1(a)(4)(A), resulting in a base offense level of 20 and an advisory range of 46–57 months; Merritt was sentenced to 46 months.
- Merritt appealed, arguing his § 846 conspiracy conviction is not a “controlled substance offense” under USSG § 4B1.2(b).
- The court reviewed guideline interpretation de novo and factual findings for clear error; Merritt’s alternative challenge (categorical approach / overt-act requirement) was reviewed for plain error because it was not raised below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a conviction under 21 U.S.C. § 846 (conspiracy) qualifies as a "controlled substance offense" under USSG § 4B1.2(b) | Merritt: § 846 conspiracy is not a controlled substance offense for Guidelines purposes | Government: § 4B1.2(b) plus Note 1 includes conspiracy; Mendoza-Figueroa controls | Court: Affirmed that conspiracy conviction qualifies; Mendoza-Figueroa (en banc) forecloses Merritt’s contention |
| Whether courts must apply the categorical approach to § 846 and whether failure to do so is reversible error (overt-act issue) | Merritt: § 846 is broader than generic conspiracy because it lacks an overt-act requirement, so it is not a categorical match | Government: Even if broader, Eighth Circuit law and split authority elsewhere mean any error is not plain | Court: Reviewed for plain error and held Merritt cannot show clear or obvious error under current law; affirming sentence |
Key Cases Cited
- United States v. Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995) (en banc) (conspiracy to commit a controlled substance offense is itself a controlled substance offense under the Guidelines)
- United States v. Lucas, 521 F.3d 861 (8th Cir. 2008) (panel may not overrule en banc precedent)
- United States v. Rivera-Constantino, 798 F.3d 900 (9th Cir. 2015) (concluding § 846 need not be a categorical match to qualify under certain Guidelines provisions)
- United States v. McCollum, 885 F.3d 300 (4th Cir. 2018) (applying categorical approach and finding certain conspiracies do not categorically match generic offense)
- United States v. Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016) (holding § 846 is not a categorical match for generic conspiracy for Guideline purposes)
- United States v. Jordan, 877 F.3d 391 (8th Cir. 2017) (split authority elsewhere makes purported error non-plain)
- United States v. Lovelace, 565 F.3d 1080 (8th Cir. 2009) (plain error requires error that is clear or obvious under current law)