Time-of-Conviction Prevails: Fourth Circuit Clarifies “Controlled Substance Offense” Analysis and Upholds Use of Virginia § 18.2-248 and 21 U.S.C. § 841(a)(1) Convictions for Career-Offender Status

United States v. Alante Nelson, No. 22-4658, 75 F.4th ___ (4th Cir. Aug. 15, 2025) — Opinion by King, J., joined by Diaz, C.J., & Flanagan, D.J.

Introduction

The Fourth Circuit’s published decision in United States v. Nelson addresses two recurring questions in federal sentencing:

When does a state drug-distribution statute qualify as a “controlled substance offense” under U.S.S.G. § 4B1.2(b) after United States v. Campbell, 22 F.4th 438 (4th Cir. 2022)?
Does the court look to the federal drug schedules at the time of the prior conviction or at the time of the current sentencing when determining whether the prior conviction is categorically overbroad?

Defendant-appellant Alante Martel Nelson pleaded guilty to (i) heroin distribution and (ii) felon-in-possession charges. The district court designated him a career offender, relying on (a) a 2017 Virginia conviction for drug distribution under Va. Code § 18.2-248 and (b) a 2012 federal conviction for crack-cocaine distribution under 21 U.S.C. § 841(a)(1), (b)(1)(C). On appeal Nelson argued that neither predicate fits the Guideline definition. The Fourth Circuit rejected both challenges and affirmed a 151-month sentence, producing two key holdings that refine the circuit’s post-Campbell jurisprudence and interpret the Supreme Court’s 2024 decision in Brown v. United States, 602 U.S. 101.

Summary of the Judgment

Virginia § 18.2-248 qualifies. Because Virginia criminalizes “attempt” offenses in a separate statute (§ 18.2-257), § 18.2-248’s reference to “attempted transfer” merely describes completed distribution. Under United States v. Groves, 65 F.4th 166 (4th Cir. 2023), the statute therefore aligns with U.S.S.G. § 4B1.2(b).
Time-of-conviction approach reaffirmed. For federal sentencing-guideline purposes, courts evaluate whether a prior drug conviction involved a federally controlled substance as of the date of that conviction, not as of the current sentencing. The panel relies on United States v. Johnson, 114 F.3d 435 (4th Cir. 1997), and interprets Brown as leaving this guideline-specific precedent intact.
Outcome. Both predicates stand; the career-offender enhancement and resulting 151-month sentence are affirmed.

Analysis

1. Precedents Cited and Their Influence

United States v. Campbell, 22 F.4th 438 (4th Cir. 2022) — Held that a West Virginia drug statute did not categorically match § 4B1.2(b) because it encompassed attempted delivery. Nelson relied heavily on this authority.
United States v. Groves, 65 F.4th 166 (4th Cir. 2023) — Distinguished Campbell by interpreting 21 U.S.C. § 841(a)(1); concluded “attempted transfer” within the definition of “delivery” signifies a completed distribution, not an attempt crime, where Congress separately criminalizes attempts in § 846.
United States v. Miller, 75 F.4th 215 (4th Cir. 2023); Davis, 75 F.4th 428 (4th Cir. 2023); Suncar, 142 F.4th 259 (4th Cir. 2025) — Extended Groves to North Carolina, South Carolina, and Pennsylvania drug statutes; show a pattern of rejecting Campbell-type arguments when the state scheme has a separate attempt provision.
United States v. Johnson, 114 F.3d 435 (4th Cir. 1997) — Adopted the time-of-conviction rule for Guideline career-offender predicates.
Brown v. United States, 602 U.S. 101 (2024) — ACCA decision mandating time-of-conviction under 18 U.S.C. § 924(e); its footnote 7 comments on Guidelines yet leaves discretion to lower courts.
Contrasting Circuit Authority: United States v. Minor, 121 F.4th 1085 (5th Cir. 2024) (time-of-sentencing); United States v. Clark, 46 F.4th 404 (6th Cir. 2022) and Drake, 126 F.4th 1242 (6th Cir. 2025) (time-of-conviction). The Fourth Circuit sides with the Sixth.

2. Legal Reasoning

(a) Categorical Approach & “Attempted Transfer”

Using the categorical approach, the court compares statutory elements with the Guideline definition. Under Virginia law, “distribute” is defined via “deliver,” which includes “actual, constructive, or attempted transfer.” Nelson argued, per Campbell, that this sweeps in the inchoate offense of “attempted delivery,” creating a mismatch because the 2021 Guidelines did not yet include attempt crimes. The panel rejected that reading:

The Commonwealth separately criminalizes attempt in Va. Code § 18.2-257.
Interpreting § 18.2-248 to include an attempt offense would render § 18.2-257 superfluous and create the same structural redundancy the court avoided in Groves regarding § 841(a)(1) and § 846.
The “attempted transfer” language thus describes a completed distribution effected by an incomplete hand-off (e.g., tossing drugs toward the buyer) rather than an inchoate attempt.

(b) Time-of-Conviction Standard Post-Brown

Nelson contended that because hemp and the radiopharmaceutical ioflupane were removed from Schedules I/II by 2022, his 2012 federal conviction under § 841(b)(1)(C) was categorically overbroad at current sentencing. The court disagreed:

Johnson is binding circuit precedent; nothing in Brown expressly overrules Johnson.
Brown emphasized statutory language specific to ACCA; the Guidelines use past-tense, backward-looking phrasing (“prior felony convictions”).
Following Johnson promotes certainty and avoids impractical re-litigation of every predicate each time the drug schedules change.

3. Impact of the Decision

a. On Fourth Circuit Jurisprudence

Closes the “Campbell loophole” for Virginia drug-distribution convictions; defense counsel can no longer rely on Campbell where the state separates attempt crimes.
Reinforces a uniform rule that the categorical “attempt” problem arises only when the relevant sovereign lacks a distinct attempt statute.
Confirms that Johnson survives Brown, anchoring the time-of-conviction rule at least until the Sentencing Commission or Supreme Court dictates otherwise.

b. National Ripple Effects

Deepens the circuit split with the Fifth Circuit (Minor) on time-of-sentencing vs. time-of-conviction in Guidelines cases, increasing the likelihood of Supreme Court review or Commission clarification.
Provides prosecutors a roadmap: show that the relevant state has a separate attempt statute and Campbell-type arguments fail.
Defendants challenging predicates must now scrutinize both the statutory text and the broader statutory scheme (i.e., whether attempts are elsewhere criminalized) before asserting an “attempt” mismatch.
Stabilizes Guideline practice against future legislative or administrative drug-schedule changes, preserving historical predicates and limiting resentencing motions.

Complex Concepts Simplified

Career Offender (U.S.S.G. § 4B1.1) — Enhances the advisory range if (1) the defendant is at least 18, (2) the instant offense is a drug or violent felony, and (3) the defendant has two prior qualifying felonies.
Controlled Substance Offense (U.S.S.G. § 4B1.2(b)) — Generally, manufacturing, distributing, or possessing with intent to distribute a federally controlled substance.
Categorical Approach — Courts compare statutory elements, not facts, to see if the statute’s “least culpable conduct” still fits the federal definition.
Attempt vs. Completed Offense — An attempt crime punishes unsuccessful endeavors; a completed offense punishes success. If a statute’s text collapses both, courts examine whether a separate attempt provision exists to avoid redundancy.
Time-of-Conviction Rule — The court looks at the legal landscape (e.g., drug schedules, felony thresholds) when the defendant was convicted of the prior offense, not at later changes.
Time-of-Sentencing Rule — The alternative view, looking at current law when the defendant is being sentenced on the new federal case.

Conclusion

United States v. Nelson crystallizes two doctrinal points for the Fourth Circuit. First, a state drug-distribution statute that includes “attempted transfer” language still categorically matches § 4B1.2(b) when the state separately outlaws attempts, aligning with Groves and repudiating expansive readings of Campbell. Second, the court re-affirms the time-of-conviction standard for determining whether a prior drug conviction involves a federally controlled substance, notwithstanding the Supreme Court’s recent commentary in Brown.

These holdings shore up stability in federal sentencing, limit collateral attacks based on evolving drug schedules, and provide clear guidance for practitioners assessing the viability of career-offender predicates in the Fourth Circuit. Until either Congress, the Sentencing Commission, or the Supreme Court intervenes, counsel should evaluate predicates through a backward-looking lens and scrutinize state statutory schemes for separate attempt provisions before invoking categorical-match defenses.