United States Court of Appeals

For the Eighth Circuit

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No. 20-3430

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Tony Lee Bone

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Central

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Submitted: October 18, 2021

Filed: January 28, 2022 

[Unpublished]

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

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PER CURIAM.

Tony Bone pleaded guilty to one count of possessing methamphetamine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and to one

count of possessing a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c). The district court1

 found him to be a career offender on the

basis of two prior convictions for controlled-substance conspiracies under Iowa law.

On appeal, Bone argues that the court erred in concluding that he was a career

offender. We affirm.

I. Background

Using a confidential informant, the police made three methamphetamine

purchases from Bone at his Des Moines, Iowa residence in September and October

2019. Thereafter, they obtained a search warrant for his home. The subsequent search

revealed 42 grams of methamphetamine, a loaded .380 semiautomatic handgun, and

other items relating to drug distribution. After having his rights read to him, Bone

admitted to possessing and selling methamphetamine and to owning the handgun. 

Bone pleaded guilty to one count of possessing methamphetamine with intent

to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and to one count of

possessing a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c). The presentence report (PSR) attributed 453.6 grams of

methamphetamine to Bone, correlating to a base offense level of 32 under U.S.S.G.

§ 2D1.1(c)(4). Subtracting three points for acceptance of responsibility resulted in a

total offense level of 29. The PSR calculated a criminal history category of IV, based

on nine criminal history points. This put Bone’s Guidelines sentencing range at

121–151 months’ imprisonment for possession with intent to distribute and 60

months for possessing a firearm in furtherance of drug trafficking, which together

resulted in an overall sentencing range of 181–211 months’ imprisonment. Bone was

designated a career offender, based upon his 2004 and 2009 convictions in Iowa state

court of conspiracy to manufacture controlled substances. This designation increased

1The Honorable Rebecca Goodgame Ebinger, United States District Judge for

the Southern District of Iowa.

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Bone’s criminal history category to VI and thereby his Guidelines range to 211–248

months’ imprisonment (151–188 months for the drug offense plus 60 months for the

firearm offense). This range was further increased pursuant to U.S.S.G.

§ 4B1.1(c)(2)(B) and (c)(3), resulting in a total Guidelines sentencing range of

262–237 months’ imprisonment. 

Bone objected to being classified as a career offender. He argued that his prior

convictions for controlled-substance conspiracies were categorically overbroad as

career-offender predicate offenses under § 4B1.1(c)(2)(B). The district court

overruled his objection pursuant to Eighth Circuit precedent holding that controlledsubstance conspiracy convictions constitute valid predicate offenses for determining

whether a defendant is a career offender. R. Doc. 79, at 9–10 (citing United States v.

Roberts, 975 F.3d 709 (8th Cir. 2020); United States v. Clayborn, 951 F.3d 937 (8th

Cir. 2020)).

Nevertheless, the district court granted Bone a downward variance to 144

months’ imprisonment as to his drug charge, based upon a number of factors,

including Bone’s health, his drug addiction, his presentence rehabilitation, and the

COVID-19 pandemic. The court also imposed the mandatory 60-month consecutive

sentence for firearm possession, for a total of 204 months’ imprisonment and five

years’ supervised release. 

II. Discussion

To qualify as a career offender, a defendant must have “at least two prior felony

convictions of . . . a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3).

“[C]ontrolled substance offense” is defined under § 4B1.2(b) to include felony

offenses for “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,

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distribute, or dispense.” Application Note 1 to § 4B1.2 states that this term

“include[s] the offenses of aiding and abetting, conspiring, and attempting to commit

such offenses.”

Bone had two prior convictions, in 2004 and 2009, for conspiring to

manufacture methamphetamine. Both of these offenses were in violation of Iowa

Code § 124.401(1)(c)(6) and constitute class C felonies. Bone argues that the

Sentencing Commission exceeded its authority by adding inchoate offenses in a note,

and therefore his conspiracy convictions may not form the basis for a career-offender

designation. In making this argument, Bone relies on precedent from other circuits.

See, e.g., United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam)

(“[T]he Commission used Application Note 1 to add an offense not listed in the

guideline. But application notes are to be ‘interpretations of, not additions to, the

Guidelines themselves.’” (citation omitted)). However, controlling Eighth Circuit

precedent says otherwise. This court holds that § 124.401(1) constitutes a controlled

substance offense as defined by § 4B1.2(b). See United States v. Maldonado, 864

F.3d 893, 897–901 (8th Cir. 2017). Bone also argues that the statute is overbroad

because it includes inchoate offenses. This claim, however, is foreclosed by this

court’s recent holding in United States v. Merritt, 934 F.3d 809, 811 (8th Cir. 2019),

which reaffirmed the same holding from United States v. Mendoza-Figueroa, 65 F.3d

691, 694 (8th Cir. 1995) (en banc). And as the Merritt panel explained, “Our panel

may not overrule a decision of the en banc court.” 934 F.3d at 811; see also United

States v. Roberts, 975 F.3d 709, 718 (8th Cir. 2020) (“We have rejected this argument

repeatedly and are bound by these prior decisions.”). Given our circuit’s controlling

authority, Bone’s argument fails.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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