United States v. Allen (P)

The appellant’s conviction under 21 U.S.C. § 843(b) is a “controlled substance offense” that served as a valid predicate offense for enhancing his base offense level under U.S. Sentencing Guidelines § 2K2.1(a)(2).

Commentary to Guidelines § 4B1.2 states that a conviction is a “controlled substance offense” if the “underlying offense” is a “controlled substance offense.” This particular provision serves an explanatory function by describing one way in which a “controlled substance offense” may be committed: by using a communication facility. The inclusion of § 843(b) in Application Note One as a “controlled substance offense,” when the underlying offense also is a “controlled substance offense,” is authoritative and controlling.

Affirmed.

United States v. Allen (P), No. 17-4308, Nov. 28, 2018. 4th Cir. (Keenan) from WDNC at Asheville (Cogburn).



Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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