UNITED STATES OF AMERICA v. DESHAWN DOZIER
US Court of Appeals for the Fourth Circuit, Davis, Jan. 30, 2017,
Sentencing – Career Offender- A West Virginia conviction for attempted cocaine distribution can be used as a predicate for a Career Offender sentence enhancement

Turned down “Shepard document” lane a bit too soon, but still got to the right answer

Career Offender–
(1) Defendant was 18 when he committed the instant offense
(2) the instant offense is a felony that is either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense

“controlled substance offense” includes offenses under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits distribution or PWID of CDS (among other crimes) and includes attempts and conspiracies.

Though it narrows the statute further than the generic version (and therefore would not disqualify its use as a predicate), the Court does not address an important difference between generic and WVA “attempt”:
Under West Virginia law, “Every person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished as follows…”
The generic offense, on the other hand, requires a substantial step “more than mere preparation but less . . . than completion of the crime,” but that is different than having failure as an element.
Both the WVA and generic versions of attempt begin in similar places. As noted by the Court: Both “act” elements require a direct act toward the commission of the crime, beyond mere preparation, that strongly corroborates the defendant’s criminal purpose. However, the WVA statute requires failure and the generic version does not. Therefore, there are examples where a completed act might result in an attempt conviction under the generic definition but not the WVA version.

Note – In Maryland, attempt doesn’t require failure. For example: a batter “attempts” to hit a baseball when he takes a substantial step toward hitting the ball, regardless of whether he makes contact or not.