United States Court of Appeals

For the Eighth Circuit 

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No. 19-1291

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United States of America

 Plaintiff - Appellee

v.

Dion Clayborn

 Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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Submitted: January 17, 2020

 Filed: March 4, 2020 

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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges. 

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GRUENDER, Circuit Judge.

Dion Clayborn pleaded guilty to possession with intent to distribute a 

controlled substance. See 21 U.S.C. §§ 841(a)(1), (b)(2)(c), 860. The presentence 

investigation report recommended classifying Clayborn as a career offender under 

U.S.S.G. § 4B1.1 based on a controlled substance conviction in Illinois, see 720 Ill. 

Comp. Stat. 570/407(b)(2), and a controlled substance conviction in Iowa, see Iowa 

Code § 124.401(1)(d). 
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Clayborn objected to the classification, but the district court1 overruled his 

objection, adopting an advisory sentencing guidelines range of 188 to 235 months. 

The district court varied downward and sentenced Clayborn to 144 months’ 

imprisonment. Clayborn appeals, arguing that he should not have been classified as

a career offender.

“We review classification as a career offender de novo.” United States v. 

Boose, 739 F.3d 1185, 1186 (8th Cir. 2014). A conviction qualifies as a “controlled 

substance offense” for purposes of the career-offender enhancement if it is an 

offense “punishable by imprisonment for a term exceeding one year, that prohibits 

the manufacture, import, export, distribution, or dispensing of a controlled substance 

. . . or the possession of a controlled substance . . . with intent to manufacture, 

import, export, distribute, or dispense.” § 4B1.2(b).

The Illinois and Iowa statutes under which Clayborn was convicted 

criminalize delivery of a controlled substance. See 720 Ill. Comp. Stat. 

570/407(b)(2); Iowa Code § 124.401(1)(d). Clayborn first argues the statutes are 

“categorically not career offender predicates” because delivery does not “involve 

some commercial aspect.” As a result, it does not fall within the guidelines’ 

definition of a controlled substance offense. According to Clayborn, the definition 

of controlled substance offense in § 4B1.2(b) applies only to commercial drug 

trafficking crimes. He highlights the fact that the guidelines use the word 

“distribution” rather than “deliver,” and he thus argues that his Illinois and Iowa 

convictions are not career-offender predicates. 

Under the categorical approach, we ask whether the state statutes fit within 

the federal definition of a controlled substance offense. See United States v. 

Maldonado, 864 F.3d 893, 897 (8th Cir. 2017). “We interpret the Sentencing 

Guidelines using the ordinary tools of statutory interpretation.” United States v. 

1

The Honorable Leonard T. Strand, Chief Judge, United States District Court 

for the Northern District of Iowa.
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Martinez, 870 F.3d 1163, 1166 (9th Cir. 2017). Our inquiry “will most often begin 

and end with the text and structure of the Guidelines.” Id. “The language of the 

Sentencing Guidelines, like the language of a statute, must be given its plain and 

ordinary meaning.” United States v. Fulford, 662 F.3d 1174, 1177 (11th Cir. 2011). 

Black’s Law Dictionary defines distribute as, “[t]o apportion; to divide among 

several,” “[t]o arrange by class or order,” “[t]o deliver,” and “[t]o spread out; to 

disperse.” Distribute, Black’s Law Dictionary (11th ed. 2019). Nothing in this 

ordinary definition requires a “commercial aspect.” Indeed, the definition of 

distribute includes “deliver.” We are similarly unpersuaded by Clayborn’s argument

that the words surrounding distribute require a commercial aspect. Import, for 

example, is defined as “[t]he process or activity of bringing foreign goods into a 

country.” Import, Black’s Law Dictionary (11th ed. 2019); see also United States 

v. Gilmore, 631 F. App’x 711, 713 (11th Cir. 2015) (per curiam) (“But, the plain 

language of the ‘controlled substance offense’ definition in the guidelines when Mr. 

Gilmore was sentenced, which includes ‘possession of a controlled substance . . . 

with intent to . . . distribute[] or dispense,’ illustrates that remuneration is not 

required.” (alteration in original)). 

Clayborn also points to the statute that directed the creation of the guidelines’ 

career-offender provisions. See 28 U.S.C. § 994(h). He argues this statute “was

very clearly aimed” at drug trafficking offenses. But this statute explicitly refers to 

the substance offenses described in § 401 of the Controlled Substances Act, 21 

U.S.C. § 841, which we have said does not require an actual sale of drugs, see United 

States v. Hernandez, 986 F.2d 234, 238 (8th Cir. 1993) (“[N]either possession nor 

an actual sale by a defendant need be proved by the government on a charge of 

distributing or aiding and abetting the distribution of drugs [under § 841].”). In other 

words, § 841 does not require a commercial activity. We thus decline to find that 

the Illinois and Iowa statutes are categorically not career-offender predicates because 

they include the word “deliver,” which may not involve a commercial activity. 
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Next, Clayborn argues that his Illinois and Iowa convictions are overbroad 

because they encompass inchoate offenses. Application Note 1 to § 4B1.2 provides 

that “controlled substance offense” includes “aiding and abetting, conspiring, and 

attempting to commit such offenses.” Clayborn argues that Note 1 is “inconsistent 

with” or “a plainly erroneous reading” of § 4B1.2. See Stinson v. United States, 508 

U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines Manual that interprets or 

explains a guideline is authoritative unless it violates the Constitution or a federal 

statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”). 

But Clayborn concedes that we have previously held that Note 1 “is a reasonable 

interpretation of the career offender guidelines.” United States v. MendozaFigueroa, 65 F.3d 691, 694 (8th Cir. 1995); see also United States v. Garcia, 946 

F.3d 413, 417 (8th Cir. 2019). Clayborn therefore argues that the Illinois and Iowa 

statutes are overbroad even if we consider Note 1 because “the Commentary does 

not reference attempted transfers or constructive transfers, as does Iowa law” in its 

definition of deliver, or “soliciting or mere agreeing, as does Illinois law.” 

Both of these arguments fail. As to Clayborn’s argument about the Iowa 

statute, we held in United States v. Maldonado, 864 F.3d at 899-901, that a charge 

for possession with intent to deliver under Iowa Code section 124.401 was 

categorically a controlled substance offense. Further, “[t]he actual or constructive 

transfer of a controlled substance is rationally understood to be distribution, which 

is specifically included in the definition of a controlled substance offense set forth 

in § 4B1.2.” United States v. Roberts, 255 F. App’x 849, 851 (5th Cir. 2007) (per 

curiam); see also United States v. Glass, 904 F.3d 319, 323 (3d Cir. 2018); United 

States v. Redden, 875 F.3d 374, 375 (7th Cir. 2017) (“Any conduct meeting the 

state’s definition of ‘delivery’ comes within § 4B1.2(b) because ‘transfer’ is just 

another word for distribute or dispense.”). As to Clayborn’s argument about the 

Illinois statute, it is true that an individual can be charged in Illinois for aiding and 

abetting or solicitation. 720 Ill. Comp. Stat. 5/5-2(c). But Clayborn was not 

convicted under that statute—he was convicted under 720 Ill. Comp. Stat. 

570/407(b)(2), so the solicitation statute is not relevant to whether Clayborn could 

be classified a career offender.
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Finally, Clayborn argues that his Illinois conviction is too old to qualify as a 

career-offender predicate. Section 4A1.2(e) of the Guidelines provides the 

applicable time periods for computing criminal history. As relevant here, 

§ 4A1.2(e)(1) imposes a time period that includes any prior sentence imposed within 

fifteen years of “commencement of the instant offense” if the sentence exceeded one 

year and one month. Application Note 8 explains that the term “commencement of 

the instant offense” includes “any relevant conduct.” U.S.S.G. § 4A1.2 n.8. Based 

on this Note, the district court found that Clayborn’s “relevant conduct” dated back 

to 2014, and Clayborn does not challenge this finding on appeal. Accordingly, the 

district court determined that Clayborn’s Illinois conviction, the sentence for which 

was imposed in January 2000, was a career-offender predicate. 

Clayborn argues that Note 8 is inconsistent with or a plainly erroneous reading 

of the guidelines. But in United States v. Rosenkrans, 236 F.3d 976, 977-78 (8th 

Cir. 2001), we considered whether Note 8 was contrary to the plain meaning of 

§ 4A1.2(e)(2). We concluded that the “commentary is not plainly erroneous or 

inconsistent with the guideline it interprets,” and we follow that holding here. Thus, 

the district court did not err in concluding that Clayborn’s Illinois conviction 

qualified as a career-offender predicate offense.

For the foregoing reasons, we affirm.

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