Divisibility of West Virginia’s Controlled Substances Act: “Manufacture” (Including Cultivation) Qualifies as a Guidelines Controlled Substance Offense Despite Campbell

I. Introduction

In United States v. Charles Wable (4th Cir. July 10, 2026), the Fourth Circuit affirmed a 180-month concurrent sentence imposed for unlawful possession of a firearm (18 U.S.C. §§ 922(g)(1), 924(a)(2)) and witness tampering by corrupt persuasion (18 U.S.C. § 1512(b)(1)).

The appeal presented two sentencing questions: (1) whether the district court plainly erred in setting Wable’s firearms base offense level at 26 under U.S.S.G. § 2K2.1(a)(1) by treating a prior West Virginia marijuana “cultivation” felony as a qualifying “controlled substance offense”; and (2) whether the court abused its discretion by allegedly failing to address a nonfrivolous mitigation argument—Wable’s claim that he was “chemically assaulted” by correctional officers pretrial.

II. Summary of the Opinion

The Fourth Circuit affirmed. On the Guidelines issue, the court held that Wable failed to show plain error in the district court’s use of base offense level 26 because: (a) the state court records were too unclear to establish, under plain-error review, that the conviction was under West Virginia’s general attempt statute; and (b) even assuming the conviction fell under the West Virginia Uniform Controlled Substances Act, that statute is divisible, and Wable’s “cultivation” offense corresponds to the statute’s manufacturing alternative, which does not include attempt conduct and therefore remains a qualifying “controlled substance offense” notwithstanding United States v. Campbell.

On mitigation, the court found no abuse of discretion because the sentencing record showed the district court considered Wable’s submissions and arguments as part of its individualized § 3553(a) assessment, even if it did not discuss the “chemical assault” allegation at length.

III. Analysis

A. Precedents Cited

  • United States v. Green, 436 F.3d 449 (4th Cir. 2006): Cited for the baseline proposition that sentencing must be guided by the Sentencing Guidelines and 18 U.S.C. § 3553(a), framing the district court’s overall obligations.
  • Gall v. United States, 552 U.S. 38 (2007): Supplies the sequencing requirement—first correctly calculate the Guidelines range, then consider the parties’ arguments and § 3553(a) factors— and anchors both the procedural reasonableness inquiry and the need for adequate explanation.
  • United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008) & Kimbrough v. United States, 552 U.S. 85 (2007): Used to articulate the “sufficient, but not greater than necessary” principle and the obligation to consider all § 3553(a) factors in arriving at a sentence.
  • United States v. Olano, 507 U.S. 725 (1993): Governs plain-error review—error, plainness, effect on substantial rights, and discretionary correction only if fairness/integrity/public reputation is implicated. This precedent is central because Wable’s key Guidelines theory was raised for the first time on appeal.
  • United States v. Lawson, 128 F.4th 243 (4th Cir. 2025): Establishes that when a defendant objected below on one theory but advances a different theory on appeal, review is for plain error. The panel relied on this to apply Olano rather than a more searching standard.
  • United States v. Lewis, 606 F.3d 193 (4th Cir. 2010): Cited for using the Guidelines in effect at the time of sentencing (and U.S.S.G. § 1B1.11(a)), important here because the opinion notes a later (2023) amendment expanding “controlled substance offense” to include inchoate crimes, but that amendment did not govern Wable’s sentencing.
  • United States v. Fowler, 58 F.4th 142 (4th Cir. 2023) & United States v. Townsend, 886 F.3d 441 (4th Cir. 2018): Provide the authority for taking judicial notice of certain undisputed, material documents not presented below—here, the murky West Virginia state court records.
  • United States v. Campbell, 22 F.4th 438 (4th Cir. 2022): Held that the Guidelines definition of “controlled substance offense” (pre-2023 amendment) unambiguously covers completed offenses, not attempts; thus, a statute that criminalizes both completed and attempted conduct (as to the element at issue) cannot categorically qualify. Wable argued Campbell knocked out his West Virginia conviction; the panel limited Campbell to the “delivery” alternative because the definition of “delivery” in West Virginia includes “attempted transfer.”
  • Mathis v. United States, 579 U.S. 500 (2016): Supplies the divisibility framework and the “modified categorical approach,” permitting courts to determine which alternative element (which “crime”) formed the basis of the conviction by consulting a limited set of documents.
  • United States v. Boyd, 55 F.4th 272 (4th Cir. 2022): Used by analogy to support treating West Virginia’s statute—listing “manufacture, deliver, or possess with intent” in the disjunctive—as divisible.
  • United States v. Groves, 65 F.4th 166 (4th Cir. 2023); United States v. Miller, 75 F.4th 215 (4th Cir. 2023); United States v. Davis, 75 F.4th 428 (4th Cir. 2023); United States v. Suncar, 142 F.4th 259 (4th Cir. 2025); United States v. Nelson, 151 F.4th 577 (4th Cir. 2025): Cited as the post-Campbell line drawing a key distinction—Campbell’s concern arises where the statute’s definition of the substantive offense itself includes attempt conduct; where it does not, the conviction can qualify. Wable extends this logic to West Virginia “manufacturing,” distinguishing it from West Virginia “delivery.”
  • United States v. Lynn, 592 F.3d 572 (4th Cir. 2010) & United States v. Blue, 877 F.3d 513 (4th Cir. 2017): Establish the sentencing court’s duty to address nonfrivolous arguments and the appellate lens for assessing adequacy of explanation from the sentencing record, emphasizing a case-by-case, non-mechanical approach.

B. Legal Reasoning

1. Plain-error posture and the burden problem

A pivotal feature of the opinion is procedural: because Wable raised his main statutory-identification theory for the first time on appeal, he had to satisfy plain-error review under Olano. That altered the practical burden of uncertainty. The panel expressly noted that had Wable made a timely, specific objection at sentencing, the ambiguity in state records could have cut differently because the Government bears the burden of proving qualifying predicates in the district court. On appeal, however, Wable needed a clear showing of error, and “murky” records were not enough to make the district court’s assumption “plainly” wrong.

2. Divisibility of W. Va. Code § 60A-4-401(a)

The court then addressed Wable’s core Campbell argument by separating two questions: (a) whether the West Virginia Uniform Controlled Substances Act is divisible, and (b) if divisible, whether Wable’s specific alternative of conviction qualifies.

Applying Mathis v. United States, the panel held the statute divisible because it lists in the disjunctive distinct crimes—“manufacture, deliver, or possess with intent to manufacture or deliver.” Citing United States v. Boyd as a close analogue, the opinion treated the enumerated verbs as alternative elements creating separate offenses, not mere alternative means.

3. Campbell’s limit: “delivery” includes attempt; “manufacture” does not

The court’s central doctrinal move is narrowing United States v. Campbell to the “delivery” alternative. Campbell found that West Virginia “delivery” is defined to include “attempted transfer,” making the offense overbroad relative to the Guidelines definition (pre-2023) that excludes attempt.

By contrast, the opinion reasoned that West Virginia “manufacturing”—including “production,” and “planting, cultivation, growing or harvesting”—does not incorporate attempt conduct in its definitions. Thus, a cultivation-based manufacturing conviction is a completed offense and fits within U.S.S.G. § 4B1.2(b)’s definition of “controlled substance offense,” supporting the base offense level of 26 under U.S.S.G. § 2K2.1(a)(1). The court reinforced this conclusion with post-Campbell cases (including United States v. Groves, United States v. Miller, United States v. Davis, United States v. Suncar, and United States v. Nelson) that uphold predicate status where the substantive offense definition does not itself sweep in attempts.

4. Consideration of nonfrivolous mitigation

On the “chemical assault” claim, the panel applied United States v. Lynn and United States v. Blue to review for abuse of discretion. While acknowledging the obligation to consider nonfrivolous arguments, the court relied on the sentencing record: the judge repeatedly referenced having reviewed Wable’s submissions, conducted an individualized § 3553(a) analysis, and explained the upward variance chiefly in terms of seriousness of the conduct, intimidation of the witness, lack of remorse, extensive violent history, and recidivism. Under Blue’s “no mechanical approach,” the panel deemed the explanation sufficient.

C. Impact

  • Clarifies Campbell’s reach in West Virginia: After Wable, defendants cannot treat Campbell as categorically disqualifying all convictions under W. Va. Code § 60A-4-401(a). Campbell continues to matter for “delivery” (because “delivery” includes “attempted transfer”), but “manufacture”/cultivation convictions may still qualify.
  • Divisibility holding drives predicate litigation: By deeming the West Virginia statute divisible, Wable channels future disputes into the “modified categorical approach” and the availability/clarity of Shepard-type documents (indictments, jury instructions, plea materials).
  • Plain-error strategy warning: The opinion underscores the practical cost of failing to make a focused Guidelines objection in the district court. Ambiguous state records that might defeat the Government’s burden below may not establish “plain” error on appeal.
  • Sentencing-explanation challenges remain record-bound: Wable reinforces that appellate courts will uphold explanations where the record reflects consideration of submissions and § 3553(a) factors, even without an explicit, granular response to every mitigation narrative—especially when the judge provides a detailed rationale for the chosen variance.
  • Temporal note on the Guidelines: The opinion’s reference to the 2023 amendment to U.S.S.G. § 4B1.2 (including inchoate offenses) signals that future cases sentenced under newer Guidelines may present different issues, but Wable remains important for pre-amendment sentencings and for interpretive method.

IV. Complex Concepts Simplified

  • Base offense level: The starting number in the Guidelines calculation. For firearms under U.S.S.G. § 2K2.1, it increases with aggravating features (e.g., certain weapons) and prior convictions. Here, two prior “controlled substance offenses” plus the type of firearm pushed the base level to 26.
  • Controlled substance offense (Guidelines): A term of art defined in U.S.S.G. § 4B1.2(b), focusing on completed trafficking/manufacturing-type crimes. Before the 2023 amendment, “attempt” crimes generally did not count unless the Guideline text covered them.
  • Categorical vs. modified categorical approach: Courts generally compare the statute of conviction to the Guideline definition “in the abstract” (categorical approach). If a statute lists alternative crimes (is “divisible”), courts may consult a limited set of records to identify which alternative the defendant was convicted of (modified categorical approach).
  • Divisible statute: A law that sets out multiple crimes by listing alternative elements (e.g., “manufacture OR deliver OR possess with intent”). If divisible, some alternatives may qualify as predicate offenses while others do not.
  • Plain error: A demanding appellate standard for issues not properly raised below. The appellant must show a clear (plain) mistake that likely mattered to the outcome. Uncertainty in the record typically defeats “plainness.”
  • Downward departure vs. variance: A “departure” is an adjustment within the Guidelines framework; a “variance” is a sentence outside the Guidelines range based on § 3553(a). Wable sought leniency; the district court instead imposed an upward variance.
  • Nonfrivolous sentencing argument: A colorable mitigation claim the judge must consider. The judge need not address it in a particular formula, but the record must show reasoned consideration consistent with § 3553(a).

V. Conclusion

United States v. Charles Wable establishes (and operationalizes) an important post-Campbell clarification for West Virginia drug predicates: W. Va. Code § 60A-4-401(a) is divisible, and a conviction corresponding to its manufacturing alternative—such as marijuana cultivation—does not inherit Campbell’s “attempt” overbreadth that disqualifies the statute’s “delivery” alternative. The decision also highlights how decisively plain-error review can shape outcomes when predicate records are unclear, and it confirms the Fourth Circuit’s deferential, record-based review of whether a district court adequately considered nonfrivolous mitigation at sentencing.