United States Court of Appeals

For the Eighth Circuit

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No. 14-1833

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Christopher John Mayne

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Dubuque

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 Submitted: February 12, 2015

 Filed: April 14, 2015

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Before BYE, BEAM, and BENTON, Circuit Judges.

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BENTON, Circuit Judge. 

Police searched Christopher John Mayne’s vehicle, seizing 180

pseudoephedrine pills, methamphetamine, and other items used tomanufacture meth. 

He pled guilty to possession of pseudoephedrine knowing it would be used to

manufacture meth, in violation of 21 U.S.C. § 841(c)(2). Mayne had three prior
felonies. The district court determined he was a career offender under section 4B1.1 1

of the federal sentencing guidelines. Mayne appeals. Having jurisdiction under 28

U.S.C. § 1291, this court affirms. 

This court reviews the “interpretation and application of the sentencing

guidelines de novo.” United States v. Mohr, 772 F.3d 1143, 1145 (8th Cir. 2014). 

A defendant is a career offender if (1) the defendant was at least

eighteen years old at the time the defendant committed the instant

offense of conviction; (2) the instant offense of conviction is a felony

that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a

crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). Mayne believes he is not a career offender because he interprets

“controlled substance offense” not to include his instant offense.

A “controlled substance offense” is a law “punishable by imprisonment for a

term exceeding one year, that prohibits the manufacture, import, export, distribution,

or dispensing of a controlled substance (or a counterfeit substance) or the possession

of a controlled substance (or a counterfeit substance) with intent to manufacture,

import, export, distribute, or dispense.” Id. § 4B1.2(b). Mayne relies on Application

Note 1 of section 4B1.2, which specifically lists § 841(c)(1) as a “controlled

substance offense,” but does not list § 841(c)(2). Id. § 4B1.2, cmt. n.1.

2

The Honorable Linda R. Reade, Chief Judge, United States District Court for

1

the Northern District of Iowa.

21 U.S.C. § 841(c) provides: 2

Any person who knowingly or intentionally—

(1) possesses a listed chemical with intent to manufacture a controlled

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Mayne’s interpretation is not persuasive. In 28 U.S.C. § 994, Congress

directed the Sentencing Commission to promulgate the sentencing guidelines. 

Subsection (h) provides:

(h) The Commission shall assure that the guidelines specify a sentence

to a term of imprisonment at or near the maximum term authorized for

categories of defendants in which the defendant is eighteen years old or

older and—

(1) has been convicted of a felony that is— 

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled

Substances Act (21 U.S.C. 841), sections 1002(a), 1005,

and 1009 of the Controlled Substances Import and Export

Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of

title 46; and

(2) has previously been convicted of two or more prior felonies,

each of which is—

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled

Substances Act (21 U.S.C. 841), sections 1002(a), 1005,

and 1009 of the Controlled Substances Import and Export

Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of

title 46.

substance except as authorized by this subchapter;

(2) possesses or distributes a listed chemical knowing, or having reasonable

cause to believe, that the listed chemical will be used to manufacture a

controlled substance except as authorized by this subchapter; . . .

. . . .

shall be fined in accordance with Title 18 or imprisoned not more than 20 years

in the case of a violation of paragraph (1) or (2) involving a list I chemical or

not more than 10 years in the case of a violation of this subsection other than

a violation of paragraph (1) or (2) involving a list I chemical, or both.

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28 U.S.C. § 994(h) (emphases added). In response, the Commission created section

4B1.1, the Career Offender guideline. Section 994(h) includes any § 841 offense

(that is a felony conviction). Section 994(h) “does not define the only crimes for

which the Commission may specify a sentence at or near the maximum.” United

States v. Baker, 16 F.3d 854, 857 (8th Cir. 1994). But, § 994(h) “merely declaresthat

the enumerated crimes must be so treated.” Id.

Application Note 1 does not provide an exhaustive list of “controlled substance

offenses.” The Commission addressed § 841(c)(1) in response to a circuit conflict

about whether possession of a listed chemical with intent to manufacture a controlled

substance is a “controlled substance offense.” United States Sentencing

Commission, Guidelines Manual, app. C., amend. 568 (2003) (eff. Nov. 1, 1997). 

TheCommission did not address § 841(c)(2) in Application Note 1 because it was not

at issue in the circuit cases. Compare United States v. Calverley, 11 F.3d 505, 511-

12 (5th Cir. 1993) (holding that possession of listed chemical with intent to

manufacture controlled substance is “controlled substance offense”), aff’d en banc,

37 F.3d 160, 165 (5th Cir. 1994), with United States v. Wagner, 994 F.2d 1467, 1475

(10th Cir. 1993) (contra), superseded by U.S.S.G. § 4B1.2, cmt. n.1 (1997) as

recognized in United States v. Smith, 433 F.3d 714, 717 (10th Cir. 2006). The

Commission’s omission of § 841(c)(2) in Application Note 1 does not override the

directive of § 994(h). See United States v. Stoneking, 60 F.3d 399, 402 (8th Cir.

1995) (en banc) (explaining that Commission’s commentary is binding unless

trumped by a federal statute).

This court holds that a conviction under § 841(c)(2) is a “controlled substance

offense” for purposes of section 4B1.1, the Career Offender guideline. 

* * * * * * *

The judgment is affirmed. 

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