United States v. Dozier, No. 15-4532 (4th Cir. 2017)Annotate this Case
After defendant pled guilty to distribution of a quantity of cocaine base, he appealed the district court's application of the modified categorical approach when it determined that his prior state court attempt conviction qualified as a controlled substance offense under USSG 4B1.2. Defendant also argued that West Virginia’s general attempt statute criminalized more conduct than a generic controlled substance offense. The court concluded that the district court erred in applying the modified categorical approach to the West Virginia general attempt statute; held that sentencing courts must compare the state and generic elements of such statutes as well as the elements of the underlying substantive statutory offense when determining whether a prior attempt conviction qualifies as a controlled substance offense; and concluded that the district court failed to make these required comparisons. The court explained, however, that under the correct approach, defendant's attempt conviction properly constitutes a controlled substance offense under USSG 4B1.2. Therefore, the court affirmed the judgment.