United States of America v. Brian Dyer

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4587
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
B RIAN D YER ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
Nos. 05 CR 30039 & 05 CR 30056—Jeanne E. Scott, Judge.
____________
A RGUED J UNE 6, 2006—D ECIDED S EPTEMBER 28, 2006
____________
Before F LAUM , Chief Judge, and P OSNER and K ANNE ,
Circuit Judges.
K ANNE , Circuit Judge. Brian Dyer is no stranger to the
criminal justice system, or to illegal drugs and violence
for that matter. His latest run-in with the law (two actu-
ally) resulted in him pleading guilty to three federal felony
charges. Dyer appeals the district court’s application of the
career offender enhancement under the Sentencing Guide-
lines, arguing his offenses of conviction were not “controlled
substance offenses.” We disagree and affirm Dyer’s sen-
tence.

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2 No. 05-4587
I. HISTORY
On January 13, 2004, police officers responded to a call
from Nichole Meyer, then Dyer’s live-in girlfriend. Meyer
asked police to meet her at the home to ensure that Dyer
was not around before she entered. Earlier that day, Meyer
had reported to police that Dyer had taken her daughter
from her and had attempted to run his car into Meyer’s
father’s car. Six months earlier, Dyer pled guilty to battery
after headbutting Meyer in the face. This time when the
officers responded, they searched the residence, and
recovered a rifle and marijuana paraphernalia. The state
drug charge was dropped in lieu of the federal indictment,
returned on May 6, 2005, charging Dyer with a single-count
of being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g).
On May 17, 2005, police officers were executing a search
warrant at another residence when Dyer arrived in his
car. Police arrested Dyer, and a police dog alerted officers
to the presence of an illegal substance inside Dyer’s car.
The officers searched the car and found a cooler and a
plastic bottle with a tire hose attached to it, an apparatus
commonly used to steal anhydrous ammonia. The search
also revealed purchase receipts for pseudoephedrine, a
chemical used in the manufacture of methamphetamine.
Officers searched Dyer’s residence with the permission of
Meyer, who by then had married Dyer and taken his
surname.
Inside the Dyers’ house, officers found more methamphet-
amine manufacturing materials, including a glass jar with
a liquid containing lithium strips, a jug of anhydrous
ammonia, and 9.81 grams of pseudoephedrine. Officers also
found a semi-automatic pistol and ammunition.
On July 8, 2005, the government charged Dyer by infor-
mation with a second count of being a felon in possession of
a firearm and with possession of pseudoephedrine with

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No. 05-4587 3
intent to manufacture methamphetamine, in violation of 21
U.S.C. § 841(c)(1). The two cases were consolidated, and
Dyer pled guilty to the charges without a prior plea agree-
ment.
At Dyer’s sentencing hearing, the district court applied
the 2004 version of the Sentencing Guidelines. The court
determined that Dyer qualified as a career offender under
§§ 4B1.1 and 4B1.2 of the Sentencing Guidelines. Specifi-
cally, the court found that Dyer was over 18 years of age at
the time he committed the instant offense, the instant
offense of conviction was a “controlled substance offense,”
and Dyer had at least two prior felony convictions for
“crimes of violence.” Dyer had argued his offenses of
conviction were not “controlled substance offenses” as
defined by § 4B1.2.
After classifying Dyer as a career offender under the
advisory Guidelines, the court found Dyer’s base offense
level was 32 and reduced that three levels for acceptance of
responsibility. With a criminal history category of VI and a
final offense level of 29, the court calculated Dyer’s advisory
Guidelines range to be 151 to 188 months’ imprisonment.
With the government’s acquiescence, the court imposed a
below-Guideline prison sentence of 144 months. Dyer
appeals his sentence.
II. ANALYSIS
Both sides agree that Dyer is a career offender under the
Guidelines if any of his instant offenses is either a crime of
violence or a controlled substance offense; Dyer concedes
the other requirements of predicate offenses and age are
met. See U.S.S.G. § 4B1.1(a). At issue is whether Dyer’s
offense of conviction for possession of pseudoephedrine with
intent to manufacture methamphetamine, is a controlled
substance offense under the Guidelines. This is a question

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4 No. 05-4587
of law we review de novo. United States v. Hankton, 432
F.3d 779, 795 (7th Cir. 2005).
The term “controlled substance offense” is defined by the
Guidelines as follows:
an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that
prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance
(or a counterfeit substance) with intent to manufacture,
import, export, distribute or dispense.
U.S.S.G. § 4B1.2(b).
Although methamphetamine is a controlled substance, see
United States v. Macedo, 371 F.3d 957, 962 (7th Cir. 2004),
Dyer did not possess any. Pseudoephedrine is not
a controlled substance but merely a listed chemical. See
21 U.S.C. § 802(34)(K). Therefore, Dyer did not possess a
controlled substance, which makes the last portion of
§ 4B1.2(b) inapplicable. Dyer argues his conviction for
possession of pseudoephedrine with the intent to manufac-
ture methamphetamine falls outside the first portion of
§ 4B1.2(b) because he was not convicted of actually manu-
facturing the controlled substance.
Years ago, Dyer’s argument had some appeal. In United
States v. Wagner, the Tenth Circuit narrowly interpreted
§ 4B1.2(b) to find that possession of a listed chemical did
not constitute a controlled substance offense. 994 F.2d 1467,
1474-75 (10th Cir. 1993). But the Sentencing Commission
did not agree with Wagner and issued an application note
to § 4B1.2 providing, “Unlawfully possessing a listed
chemical with intent to manufacture a controlled substance

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No. 05-4587 5
1 The application note cites to § 841(d)(1) (emphasis added). In
2000, § 841 was amended and recodified, with subsection (d) being
re-designated subsection (c). Pub. L. No. 106-172, § 9, 114 Stat. 7,
13 (2000). The application note does not reflect this change.
(21 U.S.C. § 841([c] 1 )(1)) is a ‘controlled substance offense.’”
The purpose of the application note, the Commission stated,
was to resolve a circuit split between the Tenth Circuit in
Wagner and the Fifth Circuit in United States v. Calverley,
11 F.3d 505, 508-12 (5th Cir. 1993) (holding possession of a
listed chemical with intent to manufacture to be a con-
trolled substance offense under § 4B1.2). U.S.S.G. app. C,
amend. 568. According to the Commission, “there is such a
close connection between possession of a listed chemical . .
. with intent to manufacture a controlled substance and
actually manufacturing a controlled substance that the
former offense[. . . is] fairly considered as [a] controlled
substance trafficking offense[ ].” Id. In light of the applica-
tion note, the Tenth Circuit recently noted that Wagner is
inconsistent with the new Guidelines provision in United
States v. Smith, 433 F.3d 714, 716-18 (10th Cir. 2006).
An application note is binding authority “unless it
violates the Constitution or a federal statute, or is inconsis-
tent with, or a plainly erroneous reading of” that Guideline.
Stinson v. United States, 508 U.S. 36, 38 (1993); see United
States v. Mitchell, 353 F.3d 552, 556 (7th Cir. 2003); United
States v. LeBlanc, 45 F.3d 192, 194-95 (7th Cir. 1998); see
also U.S.S.G. § 1B1.7. Dyer claims the application note is
inconsistent with the Guideline. Dyer refers to the statutory
definition of “manufacture,” but this does him more harm
than good. “Manufacture” is defined broadly and can mean
the “preparation . . . of a drug or other substance, either
directly or indirectly or . . . by means of chemical synthesis.”
See 21 U.S.C. § 802(15). The possession of a List I chemical,
a chemical which is “used in manufacturing a controlled
substance . . . and is important to the manufacture of the

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6 No. 05-4587
controlled substances,” 21 U.S.C. § 802(34), with the intent
to manufacture the drug comes remarkably close to prepa-
ration of a drug by chemical synthesis. And whatever may
be missing conceptually between possession and manufac-
ture, presumably some type of manipulation of the ingredi-
ent, does not give rise to an inconsistency between the two.
Because we read the Guidelines and commentary as a
whole, see LeBlanc, 45 F.3d at 194, the application note
shall be given effect.
Therefore, possession of pseudoephedrine with the in-
tent to manufacture methamphetamine is a controlled
substance offense under § 4B1.2, and the district court’s
determination of Dyer to be a career offender under § 4B1.1
was correct.
Dyer does not otherwise challenge the reasonableness of
his below-Guideline sentence.
III. CONCLUSION
Dyer’s sentence is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-28-06

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