United States v. Robert A. Tate, 2016 U.S. App. LEXIS 9099

Robert A. Tate convicted by jury of conspiring to manufacture methamphetamine (Feb 2013–June 2014) and one count of distribution (controlled buy). He does not challenge the convictions.
At sentencing the district court held Tate responsible for 400 grams of methamphetamine (based on testimony of Brandy Pierce and a proffer by Denise Huston), resulting in an adjusted offense level of 28.
The district court also designated Tate a career offender under U.S.S.G. § 4B1.1 based on two prior state felonies (one for unlawful delivery of cocaine; one for attempted procurement/possession of anhydrous ammonia with intent to manufacture methamphetamine), raising the offense level to 32 and the range to 210–262 months. Tate was sentenced to 210 months.
Tate challenged (1) the district court’s relevant-conduct drug-quantity findings and (2) the career-offender classification based on the anhydrous-ammonia conviction.
The Seventh Circuit reviewed the drug-quantity findings for clear error (giving deference to credibility determinations) and the career-offender question de novo. The court affirmed the drug-quantity findings but held the anhydrous-ammonia conviction does not qualify as a "controlled substance offense" under § 4B1.2(b) and binding application note.
Because the district court did not state it would have imposed the same sentence absent the career-offender enhancement, the sentence was vacated and the case remanded for resentencing without treating Tate as a career offender.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court erred in finding Tate responsible for ~400g methamphetamine as relevant conduct	Pierce/Huston testimony unreliable; prior convictions/inconsistencies undermine estimates	Testimony and proffer show regular "cooks" and supply of precursors supporting 360g + 40g estimates	No clear error; credibility determinations entitled to deference; relevant-conduct finding affirmed
Whether Illinois conviction for attempted procurement/possession of anhydrous ammonia with intent to manufacture meth qualifies as a "controlled substance offense" under U.S.S.G. § 4B1.2	Tate: statute does not prohibit manufacture/distribution or possession of a "listed chemical," so it falls outside § 4B1.2(b) and application note	Government: practical similarity to listed-chemical/equipment offenses supports inclusion for career-offender treatment	Held for Tate: conviction does not qualify; anhydrous ammonia is not a "listed chemical" under federal definitions and the Guideline application note is limited to listed chemicals/equipment; career-offender classification was erroneous

United States v. Acosta, 85 F.3d 275 (7th Cir.) (drug quantity often controls Guidelines sentence; reasonable estimates permitted)
United States v. Austin, 806 F.3d 425 (7th Cir.) (clear-error review of drug-quantity factual findings)
United States v. Dyer, 464 F.3d 741 (7th Cir.) (application note treating possession of a listed chemical with intent to manufacture as a controlled-substance offense; binds circuit)
Stinson v. United States, 508 U.S. 36 (1993) (Sentencing Commission commentary binding unless inconsistent with law)
United States v. Walterman, 343 F.3d 938 (8th Cir.) (possession of an unlisted chemical with intent to manufacture is not a controlled-substance offense)
United States v. Hill, 645 F.3d 900 (7th Cir.) (Guideline calculation error can be harmless if judge indicates sentence would be same without the error)