United States of America v. Scott William Cupples

United States Court of Appeals
For the Eighth Circuit
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No. 23-1606
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Scott William Cupples
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: February 12, 2024
Filed: June 27, 2024
[Published]
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Before LOKEN, COLLOTON,1 and KELLY, Circuit Judges.
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PER CURIAM.
Scott William Cupples pleaded guilty to one count of possessing
methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and
1Judge Colloton became chief judge of the Circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).

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(b)(1)(B). The government agreed not to file an information under 21 U.S.C. § 851,
stating that it would rely on Cupples’s prior convictions at sentencing. The
Presentence Investigation Report (“PSR”) found that Cupples is a career offender
under USSG § 4B1.1(a) in part because his prior Iowa conviction for conspiracy to
manufacture less than five grams of methamphetamine is a “controlled substance
offense” as defined in § 4B1.2(b) and its Application Note 1 then in effect, which
provided that “‘controlled substance offense’ include[s] the offenses of aiding and
abetting, conspiring, and attempting to commit such offenses.”
Cupples timely objected to that portion of the PSR, arguing that his Iowa
methamphetamine conspiracy conviction was not a controlled substance offense
because the Sentencing Commission improperly added inchoate offenses to the
definition of controlled substance offense. In United States v. Mendoza-Figueroa, 65
F.3d 691, 693-94 (8th Cir. 1995) (en banc), applying the Supreme Court’s guidance
in Stinson v. United States, 508 U.S. 36 (1993), we held this § 4B1.2(b) commentary
should be applied to a predicate drug conspiracy conviction because it was within the
Commission’s authority and was not an erroneous reading of the Guideline. In
United States v. Merritt, 934 F.3d 809 (8th Cir. 2019), and other later cases, we held
that Mendoza-Figueroa is controlling on this issue. The district court noted that other
circuits have recently held that the inclusion of inchoate offenses in Application Note
1 improperly expanded the controlled substance offenses included in the plain
language of the § 4B1.2(b) Guideline, interpreting the Supreme Court’s decision in
Kisor v. Wilkie, 588 U.S. 558 (2019), as weakening the deference to Guidelines
commentary required by Stinson.
We recently considered these conflicting circuit authorities but concluded our
panels are still bound by Mendoz-Figueroa “until it is overruled by the Court sitting
en banc.” United States v. Rivera, 76 F.4th 1085, 1091 (8th Cir. 2023). The district
-2-

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court agreed, concluded Merritt and Mendoza-Figueroa are binding Eighth Circuit
precedents, overruled Cupples’s objection, and sentenced him as a career offender.2
Cupples appeals that ruling. We denied his request for initial en banc hearing.
He acknowledges that Merritt and Mendoza-Figueroa are binding precedent that can
only be overruled by the court en banc, and urges that we do so. Merritt and
Mendoza-Figueroa are binding panel precedent that foreclose Cupples’s argument,
and we therefore affirm the judgment.
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2Effective November 1, 2023, responding to this circuit conflict, the Sentencing
Commission amended § 4B1.2 by striking that portion of Application Note 1 and
adding § 4B1.2(d) to the Guideline itself, which incorporates verbatim the deleted
language in Application Note 1 that had included inchoate offenses. USSG
Amendment 822, 2023 Guidelines Manual, Supp. to Appendix C at 245-47.
-3-

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