47 F.4th 509
7th Cir.2022Background:
- Turner was convicted in federal court for multiple drug distributions and being a felon in possession of a firearm; at sentencing the district court applied the ACCA because Turner had three prior drug convictions (two Wisconsin state trafficking convictions and one federal conviction).
- ACCA defines a "serious drug offense" to include certain state offenses involving distribution or possession with intent where the federal definition of controlled substances (21 U.S.C. § 802) applies; courts use the categorical approach to compare statutory elements, not underlying facts.
- Turner challenged the two Wisconsin predicates, arguing the state statute is categorically broader because it covers (1) cocaine "analogs" with a "narcotic" effect and (2) "esters and salts of esters" of cocaine—categories not reached by the ACCA definition.
- The government submitted uncontested expert chemistry declarations that: cocaine cannot have a narcotic effect (narcotic = depressant) and, critically, that esters and salts of esters of cocaine are chemically impossible (cocaine already is an ester and has no functional group to form additional esters).
- The district court credited the experts, held the apparent textual mismatches did not actually expand criminalized conduct (because narcotic effects fall under "depressant" and esters/salts of esters cannot exist), and sentenced Turner under the ACCA; the Seventh Circuit affirmed.
Issues:
| Issue | Plaintiff's Argument (Turner) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Turner's Wisconsin convictions qualify as ACCA predicates under the categorical approach | Wisconsin statute is categorically broader (covers conduct ACCA does not), so convictions cannot be ACCA predicates | Apparent overbreadth is illusory because the extra categories either fall within federal categories or are factually impossible | Affirmed: Wisconsin convictions qualify as ACCA predicates |
| Whether inclusion of cocaine "analogs" with a "narcotic" effect creates a mismatch | "Narcotic" is listed separately in Wisconsin statute, so it can cover conduct federal law does not | Expert evidence shows "narcotic" is a subset of "depressant," and federal analogue definition already covers depressant effects | No mismatch: narcotic effect is pharmacologically a depressant effect; Wisconsin not broader |
| Whether esters and salts of esters of cocaine (listed in Wisconsin statute) create a categorical mismatch when federal law does not cover them | Inclusion of esters/salts of esters makes state statute broader than ACCA | Expert evidence establishes esters/salts of esters of cocaine are chemically impossible, so the state does not criminalize any conduct federal law fails to reach | No mismatch: categorical mismatch cannot be based on factually impossible conduct; esters/salts of esters do not exist |
| Whether the court may resolve factual impossibility and whether Turner was entitled to an evidentiary hearing or is implicated by the Sixth Amendment | Finding impossibility invades facts of prior conviction and triggers Sixth Amendment or Turner should get a hearing | The court found a legislative (universal) scientific fact, not adjudicative facts about Turner's prior conviction; Turner waived the hearing by declining to present rebuttal evidence | Court may decide factual impossibility (legislative fact); Turner waived an evidentiary hearing; Sixth Amendment not violated |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (established the categorical approach comparing statutory elements to a "generic" offense)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (realistic‑probability check: courts must consider whether there is a realistic probability a state will apply its law to conduct outside the federal generic definition)
- United States v. Rodriguez‑Gamboa, 972 F.3d 1148 (9th Cir. 2020) (held categorical mismatch cannot rest on scientifically impossible conduct; "scientific reality over abstract legal doctrine")
- United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) (recognized factual‑impossibility arguments remain open but rejected inadequate evidence of impossibility)
- United States v. De La Torre, 940 F.3d 938 (7th Cir. 2019) (declined to resolve impossibility on appeal where evidence was not developed in district court)
- Shular v. United States, 140 S. Ct. 779 (2020) (described conduct‑based variant of categorical approach applicable to drug‑offense predicates)
- Mathis v. United States, 579 U.S. 500 (2016) (limits on using facts about how a prior conviction was committed; distinguishes adjudicative facts from legislative facts)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (prohibits judicial factfinding that increases penalties beyond statutory maximums except prior convictions)
- Alleyne v. United States, 570 U.S. 99 (2013) (extends Apprendi principles to mandatory minimum increases)