United States v. Vegas Calder , 618 F. App'x 878 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 22 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30335
Plaintiff - Appellee, D.C. No. 6:13-cr-00006-CCL-1
v.
MEMORANDUM*
VEGAS CLAY CALDER,
Defendant - Appellant.
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 jurisdiction under 28 U.S.C. § 1291. Reviewing
*
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 court improperly concluded, without
conducting a categorical analysis, that his 2005 Montana conviction for conspiracy
to possess with intent to distribute methamphetamine 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 prior Montana conviction is a controlled
substance offense under the Guidelines.
In assessing whether a prior state law 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
approach may 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
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Criminal Jury Instructions Nos. 9-104, 9-104(a) (jury instructed only as to
particular drug at issue). The judicially noticeable document in the record
demonstrates that Calder’s 2005 Montana 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 Penal 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 methamphetamine 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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