Conviction Under 21 USC 843 Is "Controlled Substance Offense"

USv. Allen: Allen pleaded guilty to being a felon in possession of a firearm. One of his prior felonies was a conviction under 21 USC 843 for using a communication facility to facilitate a drug trafficking crime. At sentencing, the district court concluded that Allen’s prior conviction qualified as a “controlled substance offense” and enhanced his sentence accordingly.

The Fourth Circuit affirmed. The Court noted that in 1995 it had held that 843 convictions were controlled substance offenses under the Guidelines and commentary as they then existed. Since then, the commentary has been revised (to fix a circuit split) to specifically include 843 convictions as controlled substance offenses, so long as the offense that was facilitated was itself a controlled substance offense. Because Allen’s prior conviction facilitated possession of crack with the intent to distribute it, it counted as a controlled substance offense.