United States of America v. Demetrius Bailey, also known as Murda

United States Court of Appeals
For the Eighth Circuit
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No. 21-3231
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United States of America
Plaintiff - Appellee
v.
Demetrius Bailey, also known as Murda
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: April 14, 2022
Filed: June 14, 2022
[Published]
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Before SHEPHERD, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
After Demetrius Bailey pled guilty to one count of receipt or possession of an
unregistered firearm, in violation of 26 U.S.C. §§ 5841 and 5861(c)-(d), the district
court sentenced him to 100 months imprisonment, followed by 3 years of supervised
release. Bailey appeals his sentence, arguing that the district court erred in
calculating his base offense level under United States Sentencing Guidelines

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(USSG) § 2K2.1(a)(3) and in applying a two-level enhancement under USSG
§ 2K2.1(b)(3)(B) for an offense involving a destructive device. Having jurisdiction
under 28 U.S.C. § 1291, and agreeing with Bailey’s second point of error, we remand
for resentencing without application of the destructive-device enhancement.
Bailey’s conviction arises from an incident in which he threatened another
individual with a firearm. After he was arrested and officers seized a 14-gauge
shotgun from his person, Bailey was indicted on one count of receipt or possession
of an unregistered firearm and one count of being a felon in possession of a firearm.
Bailey ultimately entered a guilty plea only to the unregistered firearm count. At
sentencing, the district court adopted the Presentence Investigation Report (PSR),
which, relying on USSG § 2K2.1(a)(3), calculated Bailey’s base offense level at 22
because the offense involved a specified firearm and because he had previously been
convicted of a controlled substance offense, possession of marijuana with intent to
deliver, in violation of Iowa Code § 124.401. The PSR also applied a two-level
enhancement pursuant to USSG § 2K2.1(b)(3)(B) because Bailey’s offense involved
a destructive device. The district court ultimately calculated Bailey’s total offense
level at 25, with a criminal history Category VI, resulting in a Guidelines range of
110 to 120 months imprisonment. The district court imposed a downward variance,
sentencing Bailey to 100 months imprisonment. The district court then dismissed
the felon-in-possession charge.
Bailey first asserts that the district court erred in calculating his base offense
level, arguing that his previous marijuana conviction under Iowa law cannot serve
as a predicate controlled substance offense for the purposes of USSG § 2K2.1(a)(3)
because, at the time of his previous conviction, Iowa law criminalized the possession
of hemp, which is broader than the definition of marijuana in the Controlled
Substances Act (CSA). “[W]e review de novo whether a prior conviction qualifies
as a crime of violence or controlled substance offense under the Guidelines.” United
States v. Williams, 926 F.3d 966, 969 (8th Cir. 2019).

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We are unpersuaded by Bailey’s argument. Although United States v.
Jackson, No. 20-3684, 2022 WL 303231 (8th Cir. Feb 2, 2022) (per curiam),1 is not
precedential, see 8th Cir. R. 32.1A, we find its reasoning persuasive, and so we adopt
that reasoning here. There, we stated:
We determined in [United States v. Henderson, 11 F.4th 713 (8th
Cir. 2021)] that U.S.S.G. § 4B1.2(b)[, which defines “controlled
substance offense,”] contains “no requirement that the particular
substance underlying the state offense is also controlled under [the
CSA].” Instead, we agreed with the Fourth Circuit’s interpretation that
the “ordinary meaning of . . . ‘controlled substance,’ is any type of drug
whose manufacture, possession, and use is regulated by law.” Jackson
concedes he was convicted of delivering and possessing with intent to
deliver marijuana, a drug regulated by Iowa law. Whether the statute
additionally proscribed hemp within the definition of marijuana is
immaterial.
Attempting to distinguish Henderson, Jackson emphasizes that
Iowa, too, has removed hemp from its marijuana definition since his
convictions occurred. See Iowa Code § 124.401(6). But we may not
look to “current state law to define a previous offense.” Jackson’s
uncontested prior marijuana convictions under the hemp-inclusive
version of Iowa Code § 124.401(1)(d) categorically qualified as
controlled substance offenses for the career offender enhancement.
Id. at *1–2 (third and fourth alterations in original) (citations omitted). The district
court thus did not err in its calculation of Bailey’s base offense level.
Bailey next asserts that the district court erred in applying the two-level
enhancement under USSG § 2K2.1(b)(3)(B), which dictates that the district court
increase the offense level by two points when the offense of conviction involved a
destructive device. Bailey did not object to the application of this enhancement at
sentencing, so our review is for plain error. United States v. Coleman, 961 F.3d
1 Bailey acknowledges in his brief to this court that his argument raises the
same issue this Court considered in Jackson. Appellant Br. ii.

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1024, 1027 (8th Cir. 2020), cert. denied, 141 S. Ct. 2819 (2021). Plain error occurs
when there is “(1) an error, (2) that is plain, and (3) that affects [the defendant’s]
substantial rights.” Id.
Section § 2K2.1(b)(3)(B) incorporates the meaning of “destructive device” set
forth in 26 U.S.C. § 5845(f), which provides that a “destructive device” includes
“any type of weapon . . . which may be readily converted to . . . expel a projectile by
the action of an explosive or other propellant, the barrel or barrels of which have a
bore of more than one-half inch in diameter, except a shotgun or shotgun shell which
the Secretary finds is generally recognized as particularly suitable for sporting
purposes.” It is undisputed that the shotgun involved in the offense of conviction
was a .410 caliber weapon, meaning that its bore diameter was less than one-half
inch, and the government concedes error, suggesting that this Court remand for
resentencing. We agree with Bailey and the government that the application of this
enhancement when the weapon involved in the offense of conviction does not meet
the definition of “destructive device” is plain error that affects Bailey’s substantial
rights. See United States v. Zarate, 993 F.3d 1075, 1076 (8th Cir. 2021) (per curiam)
(“We thus conclude the district court plainly erred in imposing the destructive-
device enhancement [because the weapon involved was a .410 caliber shotgun with
a bore diameter of less than one-half inch]. Further, the error affected Zarate’s
substantial rights, as his Guidelines imprisonment range would have been lower
without the enhancement, and the error seriously affects the fairness of the
proceedings.”). We therefore vacate Bailey’s sentence and remand with directions
to the district court to resentence Bailey without application of this enhancement.
For the foregoing reasons, we remand for resentencing.
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