United States v. Merritt, No. 18-2500 (8th Cir. 2019)
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The Eighth Circuit affirmed defendant's sentence imposed after he pleaded guilty to being a felon in possession of a firearm. The court held that defendant's argument that his prior drug conspiracy convictions did not fall within the definition of a "controlled substance offense" was foreclosed by United States v. Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995) (en banc).
The court reviewed defendant's alternative claim, that under the categorical approach 21 U.S.C. 846 conspiracy is broader than generic conspiracy because it does not require an overt act, for plain error. Because this court has not yet considered the issue, defendant failed to show any error that was clear or obvious under current law.
Court Description: Kelly, Author, with Smith, Chief Judge, and Kobes, Circuit Judge] Criminal case - Sentencing. Defendant's argument that a conspiracy to distribute a controlled substance is not a controlled substance offense as defined by the guidelines is foreclosed by U.S. v. Mendoza-Figeuroa, 65 F.3d 691 (8th Cir. 1995)(en banc); argument that a Section 846 conspiracy is broader than generic conspiracy because it does not require an overt act was raised for the first time on appeal and would be reviewed under the plain error standard; there is no authority on this issue in this circuit and a split of authority in other circuits, so even if there was error, it could not be plain or obvious.
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