United States of America v. Mario Montell Rivers

United States Court of Appeals
For the Eighth Circuit
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No. 21-2382
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Mario Montell Rivers
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: June 13, 2022
Filed: July 13, 2022
[Unpublished]
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Before LOKEN, ARNOLD, and KELLY, Circuit Judges.
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PER CURIAM.
Mario Rivers pleaded guilty to being a felon in possession of a firearm. See 18
U.S.C. §§ 922(g)(1), 924(a)(2). In calculating a recommended sentencing range for
Rivers's offense, a presentence investigation report determined his base offense level
was 22 in part because Rivers had previously been convicted of a "controlled
substance offense." See USSG § 2K2.1(a)(3). Rivers objected and argued that his

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2018 Iowa conviction for possessing marijuana with intent to deliver, see Iowa Code
§ 124.401(1)(d), was not a "controlled substance offense" as the Sentencing
Guidelines define that term. The district court1 rejected Rivers's argument and
sentenced him to seventy months in prison.
Rivers maintains on appeal that the district court erred when it deemed his Iowa
conviction a controlled substance offense. The Guidelines define "controlled
substance offense" to include "an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits . . . the possession of a
controlled substance (or a counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense." See USSG § 4B1.2(b); see also USSG § 2K2.1 app.
n. 1. Though at first blush it might seem obvious that possession of marijuana with
intent to deliver fits this definition hand in glove, Rivers contends that his prior
conviction "is categorically overbroad as a 'controlled substance offense,' because at
the time of his conviction, Iowa law included hemp in its definition of marijuana,"
and Iowa has since amended its laws so that hemp is no longer criminalized. See Iowa
Code § 124.401(6). So, Rivers explains, since it is possible that his prior conviction
stemmed only from his possession of hemp with intent to deliver, and Iowa law no
longer criminalizes that activity, he has not been convicted of a controlled substance
offense.
Our court has already rejected Rivers's argument. See United States v. Jackson,
No. 20-3684, 2022 WL 303231, at *2 (8th Cir. Feb. 2, 2022) (unpublished per
curiam). In Jackson we explained that "we may not look to current state law to define
a previous offense," and so "prior marijuana convictions under the hemp-inclusive
version of Iowa Code § 124.401(1)(d) categorically qualified as controlled substance
1The Honorable Stephanie M. Rose, then United States District Judge for the
Southern District of Iowa, now Chief Judge, United States District Court for the
Southern District of Iowa.
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offenses." See id. Rivers invites us to reject Jackson and chart our own course since
Jackson is unpublished, and therefore does not control our panel. See United States
v. Jordan, 812 F.3d 1183, 1187 (8th Cir. 2016). But another panel of this court
recently adopted, in a published decision, the reasoning of Jackson. See United States
v. Bailey, No. 21-3231, 2022 WL 2124881, at *1–2 (8th Cir. June 14, 2022) (per
curiam). Our precedent therefore forecloses Rivers's argument.
Affirmed.
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