NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v. VEGAS CLAY CALDER, Defendant - Appellant. No. 13-30335 D.C. No. 6:13-cr-00006-CCL-1
MEMORANDUM *

Appeal from the United States District Court for the District of Montana Charles C. Lovell, Senior District Judge, Presiding Submitted July 6, 2015 ** Portland, Oregon Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges. Vegas Clay Calder appeals his 100-month sentence for being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1), as enhanced by U.S.S.G. § 2K2.1(a)(4). We have juri sdiction under 28 U.S.C. § 1291. Reviewing 

# FILED
JUL 22 2015 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).for plain error, United States v. Charles , 581 F.3d 927, 933 (9th Cir. 2009), we affirm. Calder argues that the district c ourt improperly concluded, without conducting a categorical analysis, that his 2005 Montana conviction for conspiracy to possess with intent to distribute meth amphetamine in violation of Mont. Code Ann. §§ 45-4-102 and 45-9-103 was a controlled substance offense under the Sentencing Guidelines (“Guidelines”). We agree with Calder that the district court erred by failing to conduct a categorical analysis, but this error did not affect Calder’s substantial rights because his pr ior Montana conviction is a controlled substance offense under the Guidelines. In assessing whether a prior state la w conviction qualifies as a controlled substance offense under the Guidelines, we employ the categorical and modified categorical approaches from Taylor v. United States , 495 U.S. 575 (1990), and its progeny to both the underlying drug offense and the conspiracy offense. See United States v. Gomez-Hernandez , 680 F.3d 1171, 1174 (9th Cir. 2012). Montana’s criminal possession with intent to distribute statute, Mont. Code Ann. § 45-9-103, is a divisible statute and therefore the modified categorical approachmay be used. Ragasa v. Holder , 752 F.3d 1173, 1176 (9th Cir. 2014); Coronado v. Holder , 759 F.3d 977, 983-85 (9th Cir. 2014); see also Montana 2Criminal Jury Instructions Nos. 9-104, 9-104(a) (jury instructed only as to particular drug at issue). The judici ally noticeable document in the record demonstrates that Calder’s 2005 Montan a conviction involved methamphetamine, which is a controlled substance under both Montana and federal law. Mont. Code Ann. § 50-32-101; 21 U.S.C. § 812. Montana’s conspiracy statute, Mont. Code Ann. § 45-4-102, is an indivisible statute and therefore the categorical approach must be applied. Descamps v. United States , 133 S. Ct. 2276, 2285 (2013). After surveying state and federal conspiracy statutes, the Model Pena l Code, and scholarly commentary, United States v. Garcia-Santana , 774 F.3d 528, 534 (9th Cir. 2014), we find that Montana’s conspiracy statute has the same elements as the generic definition of conspiracy. Although the district court failed to conduct a categorical analysis, it reached the correct result. Calder’s 2005 Montana conviction for conspiracy to possess with intent to distribute methamphe tamine in violation of Mont. Code Ann. §§ 45-4-102 and 45-9-103 is a controlled substance offense and therefore warranted the higher base offense level under U.S.S.G. § 2K2.1(a)(4). AFFIRMED
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