In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 18‐2905 UNITED STATES OF AMERICA, Plaintiff‐Appellee, v.
TOM SMITH, III, also known as THOMAS SMITH, III, Defendant‐Appellant. ____________________
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 17‐cr‐00072 — Sarah Evans Barker, Judge. ____________________
ARGUED MARCH 25, 2019 — DECIDED APRIL 22, 2019 ____________________
Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit Judges. FLAUM, Circuit Judge. Tom Smith, III appeals the district court’s determination that he is a career offender under § 4B1.1 of the United States Sentencing Guidelines, and is eli‐ gible for the corresponding career‐offender sentencing en‐ hancement. The district court applied the enhancement after concluding that Smith had two prior convictions that quali‐ fied as controlled substance offenses under § 4B1.2(b) of the
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Guidelines. Smith maintains that one of those convictions— the one under Indiana’s “Dealing in cocaine or narcotic drug” statute, Ind. Code § 35‐48‐4‐1—criminalizes more conduct than the Guidelines’ definition of a controlled substance of‐ fense. As such, Smith contends that his conviction under the overbroad statute cannot serve as a predicate controlled sub‐ stance offense for purposes of a career‐offender designation. Smith asks that we vacate his sentence for improperly includ‐ ing a career‐offender enhancement. We disagree with Smith’s interpretation of the statute and thus affirm the district court’s judgment. I. Background A. The Indictment and Guilty Plea In March 2017, Smith sold cocaine on two occasions to a confidential informant. When law enforcement searched his home, he had 12.83 grams of cocaine base, 111.57 grams of co‐ caine powder, a rifle, two panels of a body‐armor vest, and a digital scale. In an indictment, the government charged Smith with one count of possession with intent to distribute a con‐ trolled substance in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); two counts of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and three counts of distribu‐ tion of a controlled substance in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The government also filed an infor‐ mation under 21 U.S.C. § 851, alleging that Smith had a prior felony drug conviction from 2004 for possession with intent
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to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). Smith did not contest the charges. He entered into a writ‐ ten plea agreement pursuant to Federal Rule of Criminal Pro‐ cedure 11(c)(1)(A) and (B). Smith agreed to plead guilty to Count One, possession with the intent to distribute a con‐ trolled substance, which was punishable by a maximum sen‐ tence of thirty years, and Count Two, possession of a firearm by a prohibited person, which was punishable by a maximum sentence of ten years. Smith also stipulated that he had two prior convictions for offenses that were punishable by more than one year of imprisonment. The first was the 2004 convic‐ tion that the government identified in the information. The second was a 2009 state conviction for “Dealing in cocaine or narcotic drug” in violation of Indiana Code § 35‐48‐4‐1. In the event that the court sentenced Smith as a career offender un‐ der § 4B1.1 of the Guidelines, Smith reserved his right to ap‐ peal that determination. Under the Guidelines, a defendant who qualifies as a ca‐ reer offender receives an enhancement to his sentence. U.S.S.G. § 4B1.1. To be a “career offender,” a defendant must be: (1) at least eighteen years old at the time he committed the offense of conviction; (2) the offense of conviction must be a felony that is either a crime of violence or a controlled sub‐ stance offense; and (3) the defendant must have at least two prior felony convictions of either a crime of violence or a con‐ trolled substance offense. Id. § 4B1.1(a). A “controlled sub‐ stance offense” includes any federal or state offense that is punishable by a term of imprisonment of over one year and prohibits “the manufacture, import, export, distribution, or
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dispensing of a controlled substance (or a counterfeit sub‐ stance) or the possession of a controlled substance (or a coun‐ terfeit substance) with intent to manufacture, import, export, distribute, or dispense.” Id. § 4B1.2(b). B. The Presentence Investigation Report The United States Probation Office filed an initial presen‐ tence investigation report (“PSR”) on April 16, 2018. Then, on May 18, 2018, the Probation Office filed the final PSR with an addendum containing Smith’s objections and the Probation Office’s responses; the substance of the PSR was otherwise unchanged from the initial filing. According to the PSR, the base offense level for Smith’s controlled substance offense was 20 due to the amount of co‐ caine involved. U.S.S.G. § 2D1.1(a)(5), (c)(10). Smith received a 2‐level enhancement for maintaining a premises for the pur‐ pose of distributing controlled substances, id. § 2D1.1(b)(12), so his adjusted offense level for the controlled substance of‐ fense was 22. For Smith’s firearm offense, the total offense level was 26, id. § 2K2.1(a)(1); and because he received no en‐ hancements for that offense, his adjusted offense level was also 26. The PSR used the greater of the two adjusted offense levels—here, 26. Next, the PSR determined that Smith should receive the career‐offender enhancement. Id. § 4B1.1(b)(2). As a result, Smith’s offense level increased to 34. Finally, Smith received a 2‐level deduction for accepting responsibility for the offense and a 1‐level deduction for timely notifying au‐ thorities of his intention to enter a guilty plea. Id. § 3E1.1(a), (b). Thus, Smith’s total offense level was 31. Because the PSR considered Smith a career offender, it calculated his criminal history category at VI. Id. § 4B1.1. Without career‐offender status, Smith’s criminal history category would have been III.
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Given a total offense level of 31 and a criminal history cate‐ gory of VI, the PSR calculated the Guidelines’ imprisonment range as 188 to 235 months. Smith filed ten objections to the PSR. Relevant to this ap‐ peal, Smith argued that his conviction under Indiana Code § 35‐48‐4‐1 was not a “controlled substance offense” under § 4B1.2(b), and therefore, he did not have the requisite two controlled substance offenses to qualify for the career‐of‐ fender enhancement. More specifically, he claimed that the Indiana statute underlying his prior state conviction is broader than the Guidelines’ generic definition of “controlled substance offense.” The probation officer disagreed, explain‐ ing that the elements of the crime of which Smith was con‐ victed under Indiana’s statute fits squarely within § 4B1.2(b)’s definition of “controlled substance offense.” C. The Change of Plea and Sentencing Hearing On August 3, 2018, the court held Smith’s change of plea and sentencing hearing. After the Rule 11 colloquy, the dis‐ trict court accepted Smith’s guilty plea to Counts One and Two. The court also heard arguments about Smith’s objec‐ tions to the PSR but ultimately overruled each of them. The court explained that a career‐offender enhancement was proper because “whether you consider the statute in its en‐ tirety, or you break it down into a divisible non‐categorical sort of approach … the prior conviction of Mr. Smith, the sec‐ ond one under Indiana law, was for a controlled substance vi‐ olation.” Ultimately, the court imposed a sentence of 188 months for Count One and 120 months for Count Two, with both sentences to run concurrently. This appeal followed.
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II. Discussion Smith challenges the career‐offender enhancement to his sentence pursuant to § 4B1.1 of the Guidelines, arguing that his conviction under Indiana’s “Dealing in cocaine or narcotic drug” statute, Ind. Code § 35‐48‐4‐1, is not a predicate con‐ trolled substance offense under § 4B1.2(b) of the Guidelines. We review the determination of whether a prior offense is a controlled substance offense under the Guidelines de novo. See United States v. Tate, 822 F.3d 370, 375 (7th Cir. 2016). The Indiana statute at issue here provides, in relevant part: (a) A person who: … (2) possesses, with intent to: (A) manufacture; (B) finance the manufacture of; (C) deliver; or (D) finance the delivery of; cocaine or a narcotic drug, pure or adul‐ terated, classified in schedule I or II; commits dealing in cocaine or a narcotic drug, a Class B felony, except as provided in [the sub‐ section defining Class A felony offenses]. Ind. Cod. § 35‐48‐4‐1 (2008). To determine whether a prior conviction is a controlled substance offense for purposes of the Guidelines, courts apply a “categorical approach,” whereby they “focus solely on … the elements of the crime of conviction … while ignoring the particular facts of the case” to see if those elements “match”
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the elements of the “generic” offense. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). If the elements of the crime of con‐ viction are the same as, or narrower than, the elements of the generic version of the offense, the crime of conviction qualifies as a predicate offense. Id. at 2247–48. If the elements are broader, we ask whether the statute is “divisible.” A statute is divisible if it lists elements in the alternative, thereby defining multiple crimes. Id. at 2249. When analyzing a divisible stat‐ ute, a sentencing court applies a “modified categorical ap‐ proach.” Id. Under that approach, the court reviews “a limited class of documents”—known as Shepard‐approved docu‐ ments—“to determine what crime, with what elements, a de‐ fendant was convicted of.” Id. (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). The court then “compare[s] that crime … with the relevant generic offense.” Id. Here, the district court explained that a conviction under Indiana Code § 35‐48‐4‐1 qualifies as a controlled substance offense regardless of whether the categorial or modified cate‐ gorical approach applied. We agree. Arguably, the statute has the same elements as § 4B1.2(b), so the career‐offender en‐ hancement should apply under the categorical approach.1 But even if the statute is broader than the Guidelines’ definition, because the statute is divisible, we apply the modified cate‐ gorical approach and reach the same result.
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A. Divisibility Our first task is to determine whether Indiana Code § 35‐ 48‐4‐1 is divisible. To do so, we must discern whether an al‐ ternatively phrased statute, like Indiana’s cocaine‐dealing statute, lists alternative elements or alternative means. Mathis, 136 S. Ct. at 2256. “‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain a conviction.’” Id. at 2248 (quoting Black’s Law Dictionary 634 (10th ed. 2014)). Means are factual cir‐ cumstances or events; “they need neither be found by a jury nor admitted by a defendant.” Id. (citing Black’s Law Diction‐ ary 709). Sometimes this initial inquiry is straightforward, either be‐ cause a state court has decided that the statute’s alternatives are elements or means, or because it is indisputable from the plain language of the statute that the alternatives are elements or means. See id. But when state law does not provide a clear answer, Mathis guides the sentencing court to look at the rec‐ ord of the prior conviction “for ‘the sole and limited purpose of determining whether [the listed items are] element[s] of the offense.’” Id. at 2256–57 (alterations in original) (citation omit‐ ted). This review of the record is truly limited because if by peering into the record the sentencing court learns that the listed items are means, the court must cease further consider‐ ation of the record and return to strictly applying the catego‐ rial approach. Id. at 2257. Smith insists that the statute is indivisible, but he does not offer any reasoning or legal authority to support this position. The government, by contrast, argues that both Indiana law and the record of conviction support its position that the stat‐ ute is divisible.
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1. Indiana Law Turning first to the language of § 35‐48‐4‐1 itself, the gov‐ ernment argues that the statute is divisible because certain subsections impose different punishments. See id. at 2256 (“If statutory alternatives carry different punishments, then … they must be elements.” (citing Apprendi v. New Jersey, 530 U.S. 466 (2000))). Per the statute, a defendant is guilty of a Class B felony if the defendant knowingly or intentionally: (1) manufactured a narcotic drug, (2) financed the manufac‐ ture of a narcotic drug, (3) delivered a narcotic drug, or (4) fi‐ nanced the delivery of a narcotic drug. Ind. Code. § 35‐48‐4‐ 1(a) (2008). Whereas a defendant would be guilty of a Class A felony if: (1) the amount of the drug weighed more than three grams; (2) the defendant delivered or financed the delivery of a narcotic drug to a person under eighteen and at least three years younger than the defendant; or (3) the defendant man‐ ufactured, delivered, or financed the delivery of the drug on a school bus, or in, on, or within one‐thousand feet of a school property, public park, family housing complex, or youth pro‐ gram center. Id. § 35‐48‐4‐1(b)(1)–(3). We, however, do not read § 35‐48‐4‐1(b) as assigning dif‐ ferent punishments to the alternative types of conduct out‐ lined in each subsection of § 35‐48‐4‐1(a). Rather, we read § 35‐48‐4‐1(b) as assigning different punishments for aggra‐ vated versions of that same conduct described in the subsec‐ tions of § 35‐48‐4‐1(a). The legislature punishes drug dealing in larger quantities more harshly than it does drug dealing in smaller quantities, § 35‐48‐4‐1(b)(1); it punishes drug dealing to certain minors more harshly than drug dealing to adults, § 35‐48‐4‐1(b)(2); and it punishes drug dealing near places where children congregate more harshly than drug dealing in
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places where children are less likely to be present, § 35‐48‐4‐ 1(b)(3). While the statutory language does not itself establish that § 35‐48‐4‐1(a) includes alternative elements and is divisible, we do agree that Indiana caselaw supports that conclusion. The government cites two Indiana state court decisions that treat the statute as listing alternative elements that define multiple crimes. See Eckelbarger v. State, 51 N.E.3d 169, 170 & n.1 (Ind. 2016) (per curiam) (characterizing dealing crimes as “dealing in methamphetamine (by delivery)” and “dealing in methamphetamine (by manufacture)”); Collins v. State, 659 N.E.2d 509, 510–11 (Ind. 1995) (isolating the delivery element from the other three alternatives in deciding what the state “must have proved” in the context of double jeopardy challenge on appeal).2 And as we stated in United States v. Anderson—an unpublished order issued after the government filed its appellate brief—“Indiana courts treat § 35‐48‐4‐1(a) as divisible.” No. 18‐1548, slip op. at 6 (7th Cir. Mar. 21, 2019)3;
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see McKinley v. State, 45 N.E.3d 25, 29 (Ind. Ct. App. 2015) (rejecting the State’s argument that subsection (a)(1)’s “knowingly or intentionally” applies to subsection (a)(2) because of the “disjunctive conjunction” between the two subsections); Harper v. State, 963 N.E.2d 653, 658 n.3 (Ind. Ct. App. 2012) (describing the statute as “provid[ing] the elements for the crimes of dealing in cocaine or a narcotic drug”(emphasis added)); Upshaw v. State, 934 N.E.2d 178, 183 (Ind. Ct. App. 2010) (explaining that in order to convict the defendant of a class B felony dealing in cocaine, “the State was required to prove beyond a reasonable doubt that he knowingly or intentionally possessed cocaine with the intent to deliver”). 2. Record of Conviction In any event, even if Indiana law did not provide a clear answer to the elements or means question, the government asserts that a targeted glance at Smith’s record of conviction confirms that the statute’s list of alternatives are elements and not means. See Mathis, 136 S. Ct. at 2256–57. Here, the record included a plea agreement, the judgment of conviction, an in‐ formation, and a transcript of a colloquy with the state court judge. Only the latter two sources provide information at the requisite level of specificity.4 The information describes Smith’s charge in the following terms: “Smith … did knowingly possess with intent to deliver
4 The plea agreement only shows that Smith pleaded guilty to “Count
I‐Dealing in Cocaine, as a class B felony lesser included offense”; it does not cite the relevant subsection of the statute nor does it describe the un‐ derlying criminal conduct. The judgment of conviction indicates that Smith was found guilty of dealing in cocaine or narcotics and that the “Class” for that conviction was “FA.” But under the section for “Judge’s
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a controlled substance, that is: cocaine, in an amount greater than three (3) grams.” And Smith’s colloquy with the state court judge similarly establishes that Smith pleaded guilty to possession with the intent to deliver: THE COURT: … Count I, as a Class B felony, al‐ leges that … you, Tom Smith, … did knowingly possess, with the intent to deliver, a controlled substance, that is: cocaine. Is that the first count you’re pleading guilty to? THE DEFENDANT: Yes. Although neither the information nor the transcript of the col‐ loquy cite to a specific subsection of the statute, it is clear from the descriptions that both documents refer to “possession, with intent to … deliver” under § 35‐48‐4‐1(a)(2)(C). Indeed, they do not mention the terms “manufacture” or “finance,” one of which would be necessary to charge or convict Smith under any of the other subsections in the statute. See Ind. Code § 35‐48‐4‐1(a)(2)(A)–(B), (D). This limited view into the record of conviction shows that the state focused on one of the statute’s alternative subsections to the exclusion of all others in charging Smith and reaching a plea agreement; therefore, it follows that § 35‐48‐4‐1(a)’s alternative subsections are a list of alternative elements. B. Modified Categorical Approach Since Indiana Code § 35‐48‐4‐1 is divisible, we apply the modified categorical approach. First, we review the Shepard‐
Recommendations,” only the following “sentencing comments” ap‐ peared: “Judgment of conviction entered as lesser included dealing in co‐ caine/FB on Count I.”
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approved documents to understand of which crime and ele‐ ments the defendant was convicted. See Mathis, 136 S. Ct. at 2249. Then, we compare the elements of that crime to the ge‐ neric offense. See id. Here, this endeavor is straightforward be‐ cause, as we just explained, the information and Smith’s col‐ loquy with the state court judge confirm that Smith was charged with and ultimately pleaded guilty to knowingly possessing, with the intent to deliver, a controlled substance. See Ind. Code § 35‐48‐4‐1(a)(2)(C). That crime and those ele‐ ments match the Guidelines’ definition of a controlled sub‐ stance: (1) possession (2) of a controlled substance (3) with the intent to distribute that substance. See U.S.S.G. § 4B1.2(b). The distinction between “deliver” in Indiana’s statute and “dis‐ tribute” in the Guidelines’ definition is without a difference. See United States v. Madkins, 866 F.3d 1136, 1144 (10th Cir. 2017) (“Federal law provides that for purposes of [U.S.S.G. § 4B1.2(b)’s] definition, ‘distribute’ means ‘to deliver … a con‐ trolled substance or listed chemical.’” (second alteration in original) (quoting 21 U.S.C. § 802(11))). Smith’s conviction under § 35‐48‐4‐1 qualifies as his sec‐ ond predicate controlled substance offense. We affirm the dis‐ trict court’s decision to apply the career‐offender enhance‐ ment in sentencing Smith. III. Conclusion For the foregoing reasons, we AFFIRM the district court’s judgment.
Footnotes
[1] The application note to § 4B1.2(b) states that a controlled substance offense “include[s] the offenses of aiding and abetting, conspiring, and at‐ tempting to commit such offenses.” U.S.S.G. § 4B1.2, cmt. n.1. That de‐ scribes conduct that might qualify as “financ[ing]” drug‐dealing under In‐ diana Code § 35‐48‐4‐1(a)(2)(B) or (D).
[2] Although the Indiana legislature frequently amends and republishes § 35‐48‐4‐1, for the purposes of this appeal, the versions of the statute re‐ main substantively the same between the approval of Public Law 165 in 1990 through the publication of the pocket part in 2009. See Pub. L. No. 165‐1990, § 3; Pub. L. No. 296‐1995, § 3; Pub. L. No. 65‐1996, § 11; Pub. L. No. 17‐2001, § 19; Pub. L. No. 151‐2006, § 22; Ind. Code § 35–48–4–1 (2008); Ind. Code § 35–48–4–1 (2009).
[3] As we explained in Anderson, our conclusion that Indiana Code § 35‐ 48‐4‐1 is divisible is consistent with our opinion in Lopez v. Lynch, in which we applied the modified categorical approach (without expressly decid‐ ing the issue of divisibility) to determine if a conviction under § 35‐48‐4‐ 1(a) constituted an aggravated felony under the Immigration and Nation‐ ality Act. Anderson, slip op. at 6 (citing Lopez v. Lynch, 810 F.3d 484, 489 (7th Cir. 2016)).