United States v. Vegas Calder

MEMORANDUM

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 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 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), and its…