Argued: October 27, 2016
from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:15-cr-00078-1)
Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant.
A. Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY,
Beckley, West Virginia, for Appellee.
Christian M. Capece, Federal Public Defender, Rachel E.
Zimarowski, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for
A. Casto, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appellee.
SHEDD and KEENAN, Circuit Judges, and DAVIS, Senior Circuit
by published opinion. Senior Judge Davis wrote the opinion,
in which Judge Shedd and Judge Keenan joined.
Senior Circuit Judge.
Dozier pled guilty to distribution of a quantity of cocaine
base, in violation of 21 U.S.C. § 841(a)(1), and he was
sentenced as a career offender to 151 months imprisonment. On
appeal, Dozier contends (1) the district court erroneously
applied the modified categorical approach when determining
whether a prior state court attempt conviction qualified as a
"controlled substance offense" under U.S.S.G.
§ 4B1.2, and (2) because West Virginia's general
attempt statute criminalized more conduct than a generic
controlled substance offense, he should not be designated a
conclude that the district court erred in applying the
modified categorical approach to the West Virginia general
attempt statute. Given the unique complexity of general
attempt statutes, we hold that sentencing courts must compare
the state and generic elements of such statutes as well as
the elements of the underlying substantive statutory offense
when determining whether a prior attempt conviction qualifies
as a controlled substance offense. The district court failed
to make these required comparisons. However, even when
analyzed under the correct approach, Dozier's prior
attempt conviction under West Virginia law properly
constitutes a controlled substance offense under § 4B1.2
of the Sentencing Guidelines. We therefore affirm the
April 2015, Dozier was charged with knowingly and
intentionally distributing a quantity of crack cocaine in
violation of 21 U.S.C. § 841(a)(1). After Dozier entered
his guilty plea, the probation officer prepared a Presentence
Investigation Report ("PSR") to assist the district
court at sentencing. The PSR identified the relevant conduct
attributable to Dozier, which produced a base offense level
of 20. The PSR then recommended a two-level enhancement for
possession of a firearm, a Chapter Four enhancement for
qualifying as a career offender, and a three-level reduction