UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DANNY TURNER, Defendant-Appellant.
No. 21-2309
United States Court of Appeals For the Seventh Circuit
ARGUED APRIL 8, 2022 — DECIDED AUGUST 25, 2022
Before WOOD, HAMILTON, and JACKSON-AKIWUMI, Circuit Judges.
Like the Ninth Circuit in a similar case, “we opt for scientific reality over abstract legal doctrine.” United States v. Rodriguez-Gamboa, 972 F.3d 1148, 1150 (9th Cir. 2020). Under the ACCA, a categorical mismatch cannot be based on truly impossible conduct. Wisconsin‘s drug statute does not expand the scope of conduct actually treated as criminal beyond the definition in the ACCA, despite superficial textual differences. We therefore affirm Turner‘s sentence as an armed career criminal.
I. Factual and Procedural Background
Defendant Turner was arrested after making four sales of cocaine and one sale of heroin to an undercover police officer. The arresting officers found a loaded handgun in Turner‘s waistband. A federal grand jury indicted Turner on eight counts: six counts for distributing and possessing controlled substances in violation of
Turner‘s conviction for being a felon in possession of a firearm would ordinarily carry a maximum sentence of ten years. See
To determine whether a prior conviction qualifies as a serious drug offense or a violent felony under the ACCA, courts apply what is known as the “categorical approach,” which stems from Taylor v. United States, 495 U.S. 575 (1990). See Johnson v. United States, 24 F.4th 1110, 1116 (7th Cir. 2022). The categorical approach “focuses only on the elements of the crime of conviction, not the actual facts of the defendant‘s conviction.” United States v. Williams, 931 F.3d 570, 575 (7th Cir. 2019). If the elements of the crime of conviction sweep more broadly than the definition of a “serious drug offense” in the ACCA, “so that it is possible to violate the underlying statute without committing a ‘serious drug offense’ within the meaning of the ACCA, then a conviction under the statute cannot serve as a predicate ‘serious drug offense’ under the ACCA.” Id. (emphasis added).
Before sentencing in this case, the presentence report recommended that Turner be deemed an armed career criminal under
Turner identified two apparent mismatches between the ACCA definition and the Wisconsin drug laws under which he was convicted. The Wisconsin statute extends to dealing in (1) narcotic analogs of cocaine and (2) esters and salts of esters of cocaine. The government acknowledged the apparent textual mismatches, but it argued the mismatches were “in name only” because the allegedly overbroad conduct is factually impossible. Relying on two declarations from expert chemists, the government explained that it is chemically impossible for cocaine to have a “narcotic” effect and impossible to create an ester or a salt of an ester of cocaine. Also, one of the government‘s experts testified in his declaration that a “narcotic effect” is a type of “depressant effect.” If that is correct, then even if cocaine could have a narcotic effect, federal law would still apply to trafficking in it since federal law covers cocaine analogs with depressant effects. See
Our case law has expressly left the door open to just these sorts of arguments of factual impossibility under the categorical approach. See United States v. Ruth, 966 F.3d 642, 648 (7th Cir. 2020) (“There may be an occasion where a state statute covers unquestionably nonexistent conduct, but we do not need to predetermine how that analysis will look.“); see also United States v. De La Torre, 940 F.3d 938, 952 n.5 (7th Cir. 2019) (“Our opinion takes no position on the scientific merits, nor should it be read as limiting the government‘s ability to present [factual impossibility] argument[s] in future proceedings.“). The government relied on this point in Ruth in making its arguments in the district court.
Turner responded by twice asking for time to consult an expert in hopes of refuting the government‘s experts in an evidentiary hearing. The district court granted both of his extension requests and scheduled a hearing. Two months after his first request, though, Turner changed course. He told the district court that he did not plan to call witnesses or present evidence related to factual impossibility. The parties then filed a joint motion to vacate the evidentiary hearing, which the court granted.
In a written opinion prior to sentencing, the district court overruled Turner‘s objection to his classification as an armed career criminal. Relying on the unrebutted testimony from the government‘s experts, the court found that esters of cocaine and narcotic analogs of cocaine simply do not exist. The court also found that even if a narcotic analog of cocaine could exist, the ACCA definition of a serious drug offense would reach it under the Controlled Substances Act,
We review de novo the district court‘s legal determination that Turner had three prior serious drug offenses and therefore qualified as an armed career criminal. United States v. Lockett, 782 F.3d 349, 352 (7th Cir. 2015). The district court‘s factual findings related to esters and narcotic analogs of cocaine are subject to review for clear error, id., though the evidence before the court was not disputed.
Turner‘s two prior state drug convictions were under Wisconsin Statutes §§ 961.41(1)(cm)1 & (1m)(cm)1.3 As explained, we apply the categorical approach here, focusing only on the elements of the Wisconsin drug law—not the actual facts of Turner‘s prior convictions—to determine if those elements sweep more broadly than the definition of a “serious drug offense” in the ACCA. Williams, 931 F.3d at 575. Turner identifies two apparent textual mismatches between that statute and the ACCA definition: (1) narcotic analogs of cocaine and (2) esters and salts of esters of cocaine. Factual impossibility is dispositive for only one of those apparent mismatches.4
A. Cocaine Analog with a “Narcotic” Effect
The first apparent mismatch applies to a cocaine analog with a supposedly “narcotic” effect. The Wisconsin drug law criminalizes dealing in an analog of cocaine, defined as a chemically similar substance that has a “stimulant, depressant, narcotic or hallucinogenic effect.”
The district court rejected that argument, and we do too. The court relied on the government‘s expert to reach its conclusion. As a preliminary matter, there is a pharmacological question of whether cocaine or a cocaine analog can produce a “narcotic” effect at all. According to the government‘s expert testimony, “cocaine is not a narcotic.” Narcotics are defined to have depressant effects on the central nervous system. Cocaine, by contrast, is classified as a stimulant and produces a “stimulatory” effect on the central nervous system. It is therefore chemically impossible for cocaine to have a truly narcotic effect.
We need not decide that issue on that basis, however. As the district court explained, “there is a more fundamental problem with Turner‘s argument.” According to the undisputed expert testimony, a narcotic effect is a type of depressant effect. That means that even if cocaine could have a “narcotic effect,” it would be a subset of “depressant effects.” In that sense, a defendant could be convicted in federal court of distributing an analog of cocaine that had a supposedly narcotic effect because that conduct would fall under the classification of distributing a cocaine analog with a depressant effect, which is treated as criminal under federal law.
Turner argues that we should not deem a narcotic effect a subset of depressant effects. He relies on the text of the Wisconsin statute, arguing that since the state legislature chose to list “depressant” and “narcotic” separately, the two terms must have different meanings and capture distinct types of conduct. This textual argument has its roots in the anti-surplusage canon, under which courts read statutory text with an eye toward avoiding rendering any language superfluous. See, e.g., In re Southwest Airlines Voucher Litig., 799 F.3d 701, 710 (7th Cir. 2015).
There are two problems with this argument. First, Turner has not articulated an interpretation of narcotic effect that would not also be considered a depressant effect from a pharmacological standpoint. In that sense, he has failed to supply a
B. Salts and Esters of Cocaine—Factual Impossibility
The second apparent textual mismatch squarely presents the problem of factual impossibility. Wisconsin‘s definition of cocaine includes “any of [its] salts, esters, isomers and salts of esters and isomers that are theoretically possible within the specific chemical designation.”
As one of the government experts explained, esters and salts of esters of cocaine simply do not exist as a matter of chemistry. Cocaine itself is an ester of a compound called ecgonine, and a cocaine molecule contains two functional groups that are classified as esters. Because of this chemical structure, there “are no functional groups … that can form any additional esters,” which means “there are no esters of cocaine.” And since it is not chemically possible to have an ester of cocaine, it also is not possible to have a salt of an ester of cocaine.
The district court relied on this expert‘s declaration to conclude that esters and salts of esters of cocaine are factually impossible. Turner did not offer any evidence to dispute that finding, and it was not clearly erroneous. The district court then concluded that a categorical mismatch cannot be based on impossible conduct. Unlike the court‘s factual findings, that legal determination does not receive deference. Lockett, 782 F.3d at 352. We turn to that legal issue now.
The central legal question in this appeal is whether a defendant can avoid being deemed an armed career criminal by showing that he could have been convicted under a state statute for conduct that is factually impossible because the state statute
The Wisconsin statute‘s inclusion of esters and salts of esters of cocaine creates an apparent textual mismatch with the ACCA definition here. In the government‘s view, when the conduct that creates the mismatch is factually impossible, the mismatch is “in name only” and there is no overbreadth. Turner argues that this inquiry into factual impossibility is not permitted under the conduct-based categorical approach, asserting that this court has already rejected such “‘theoretical challenges’ to state-statute overbreadth.” We have done no such thing. As explained next, we have expressly left open the question whether a categorical mismatch can be based on “unquestionably nonexistent conduct.” United States v. Ruth, 966 F.3d 642, 648 (7th Cir. 2020).
1. Seventh Circuit Case Law
In the past few years, we have been asked twice to address factual impossibility under the categorical approach. Each time we declined the invitation. First, in United States v. De La Torre, the state statute in question was categorically broader than the applicable federal definition because the state law made it a crime to deal in geometric isomers of methamphetamine while federal law did not. 940 F.3d 938, 951 (7th Cir. 2019). The government argued that the two “statutes actually mirror[ed] each other” because geometric isomers of methamphetamine did not exist. Id. The issue had not been raised in the district court, however, so the government had (understandably) not presented evidence in the district court as to the factual impossibility of geometric isomers of methamphetamine. In applying plain-error review, we
In De La Torre we said that the government‘s argument regarding impossibility was not “pertinent … when the plain language chosen by the [state] legislature dictates that the [state] statute is categorically broader than the federal definition of felony drug offense.” 940 F.3d at 952. Relying on this language, Turner argues that De La Torre expressly rejected factual impossibility arguments under the categorical approach.
That sentence cannot carry the weight Turner gives it. First, in rejecting the government‘s attempt to rely on evidence presented in other cases because the issue had not been raised before the appeal, we explained: “Our opinion takes no position on the scientific merits, nor should it be read as limiting the government‘s ability to present [factual impossibility] argument[s] in future proceedings.” 940 F.3d at 952 n.5. Second, De La Torre itself acknowledged that the issue of impossibility did not make a difference in the outcome since the decision was not “solely dependent on the definition of methamphetamine and which of its isomers do or do not exist.” Id. at 952. The state statute was overbroad in other respects. Third, in Ruth—decided less than a year later—the government again argued that an apparent mismatch between a state and federal statute was based on factually impossible conduct (dealing in positional isomers of cocaine). Ruth, 966 F.3d at 648. In Ruth we recognized that De La Torre had “left the door ajar for future science based arguments.” Id.
In Ruth, the government‘s factual impossibility argument ultimately fell short because the evidence was deficient. As in De La Torre, the government failed to supply convincing evidence that positional isomers of cocaine did not exist. The expert declaration in Ruth asserted that the expert had never detected positional isomers in analyzing over 50,000 samples of cocaine. That is not quite the same as declaring that certain compounds cannot exist. And contrary to Turner‘s assertions, Ruth did not shut the door to factual impossibility arguments in rejecting this evidence: “There may be an occasion where a state statute covers unquestionably nonexistent conduct, but we do not need to predetermine how that analysis will look.” 966 F.3d at 648.7
Nor did Aguirre-Zuniga v. Garland, 37 F.4th 446 (7th Cir. 2022), a case decided after oral argument in this appeal, close the door that Ruth and De La Torre left open. The state statute in Aguirre-Zuniga criminalized dealing in optical and positional isomers of methamphetamine. Federal law, by contrast, criminalized only optical isomers of methamphetamine. We observed that positional isomers exist as a matter of chemistry: “Methamphetamine has optical and positional isomers, and methamphetamine itself exists in two isomeric forms, l-methamphetamine and d-methamphetamine,
2. Impossible Conduct
Unlike in Ruth, De La Torre, and Aguirre-Zuniga, the district court here made an express factual finding that the conduct—dealing in esters and salts of esters of cocaine—that creates the apparent mismatch cannot occur. As noted, that finding was not clearly erroneous; it was based on unchallenged expert testimony. Thus, whether Turner qualifies as an armed career criminal under the ACCA turns on whether state statute overbreadth can stem from conduct that is factually impossible. It cannot.
Every Supreme Court decision applying the categorical approach has contemplated real rather than imaginary discrepancies between the elements of state and federal statutes. Starting with Taylor v. United States, the Court instructed lower courts to evaluate prior state court convictions for “burglary” to see whether the “statutory definition substantially corresponds to ‘generic’ burglary,” or if “the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.” 495 U.S. 575, 602 (1990) (emphases added). That analysis is “abstract” in the sense that it directs courts to evaluate the elements of a prior offense, not the actual underlying facts of the defendant‘s prior conviction. But Taylor cautioned against invoking “technical definitions and labels under state law” to create faux mismatches. Id. at 590. Asking whether the elements “substantially correspond” or if a jury was “actually required” to find certain elements was designed to keep the objective inquiry at least tethered to reality.
As noted above, since Taylor the categorical approach has been criticized as not sufficiently tethered to reality. See also, e.g., United States v. Doctor, 842 F.3d 306, 312–13 (4th Cir. 2016) (Wilkinson, J., concurring) (explaining that the categorical approach has moved “beyond what the Supreme Court originally anticipated” and “has pushed criminal sentencing to the very last place that sentencing ought to be, that is at an untenable remove from facts on the ground“). But at least one reality check remains. In Gonzales v. Duenas-Alvarez, the Supreme Court offered a significant clarification:
549 U.S. 183, 193 (2007) (emphases added); see also Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute‘s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.
We decline Turner‘s invitation to ignore this general lesson from Duenas-Alvarez. We also reject his argument that Duenas-Alvarez does not apply here because it concerned only the generic-offense branch of the categorical approach, as distinct from a conduct-based test.
To explain this difference, the Supreme Court recently clarified that the categorical approach differs slightly based on the federal statutory language at issue. Shular, 140 S. Ct. at 783. Where the federal recidivist statute lists covered offenses, courts must identify “generic” versions of the crimes with the elements of “the offense as commonly understood,” and then compare those generic elements to the elements of the crime of the prior conviction. Id. We have described that approach as the “generic-offense method.” Ruth, 966 F.3d at 646. The second approach, and the one Shular directed courts to use in cases like Turner‘s, is the “conduct-based method.” Id. As explained, that requires us to ask “only whether [Turner‘s] prior conviction‘s elements necessarily entail the conduct identified” in the ACCA‘s definition of a serious drug offense. Id. at 647; see
In Ruth we said that rules derived from cases applying the generic-offense method did “not apply equally under the conduct-based method at play” in that case. 966 F.3d at 648. And as mentioned, Duenas-Alvarez applied the offense-based method. This language in Ruth, Turner says, prevents any consideration of Duenas-Alvarez or cases like it because his case also concerns only the conduct-based method. We disagree. Ruth explained that offense-based method precedents do “not apply equally” to conduct-based method cases, not that they do not apply at all. Id. (emphasis added). The warning from Duenas-Alvarez to avoid imaginative inquiries reaches beyond the case‘s categorization. Accord, United States v. Rodriguez-Gamboa, 972 F.3d 1148, 1153–54 (9th Cir. 2020) (“teaching of Duenas-Alvarez” is not limited to cases involving generic offenses). We do not read Shular or Ruth as barring courts from distinguishing between possible and impossible conduct when applying either method.
To be clear, asking about genuine factual impossibility is not the “realistic probability” test stated in different terms. Factual impossibility is distinct and comes one step before such an inquiry into realistic probabilities, if any. See Aguirre- Zuniga, 37 F.4th at 450 (explaining that courts apply the realistic probability test only when the statutory language is ambiguous or has an indeterminate reach).
After identifying an apparent mismatch, the next logical question—though one that rarely needs to be asked out loud—is whether that supposedly overbroad conduct can actually occur. If it cannot, then there is plainly no overbreadth. The reason is simple. Where a state criminal statute seems to apply to conduct that would be factually impossible while the federal statute does not, the state statute does not actually make criminal any conduct that its federal counterpart does not. The conduct that the federal statute would not reach simply cannot happen. Factual impossibility prevents courts from venturing into the land of the imaginary and reaching absurd outcomes.
“Without question,” the Court said, “many who commit the crime of attempted Hobbs Act robbery do use, attempt to use, or threaten to use force.” Taylor, 142 S. Ct. at 2022. But “some cases are not all cases.” Id. As the court explained,
individuals arrested “before they can threaten anyone may be convicted too.” Id. Since people could commit attempted Hobbs Act robbery without actually threatening force, the Court held that the offense swept more broadly than the ACCA definition and could not qualify as a predicate. The key point for purposes of this case is that it was actually possible to commit the overbroad conduct. Id. at 2035 (Alito, J., dissenting) (“[T]he Court infers that attempted Hobbs Act robbery is not a “crime of violence” under
In Turner‘s case, by contrast, it simply is not possible to deal in esters or salts of esters of cocaine—since esters and salts of esters cannot exist chemically—so Wisconsin‘s drug law does not sweep in more conduct than the ACCA‘s definition of a “serious drug offense.”8
The Ninth Circuit has agreed. In Rodriguez-Gamboa, the court opted for “scientific reality over abstract legal doctrine” in considering a factual impossibility rebuttal to an overbreadth challenge. 972 F.3d at 1150. The state statute at issue there criminalized dealing in geometric isomers of methamphetamine while the federal counterpart did not, creating a similar apparent mismatch. As the district court in that case found, however, geometric isomers of methamphetamine do not exist as a matter of chemistry. In a persuasive opinion, the Ninth Circuit held that a categorical mismatch cannot be based on nonexistent conduct. Id. at 1152–54. As the court put it:
Because we know as a scientific fact that dragons have never existed, we would not find overbroad a state statute criminalizing the possession of dangerous animals, defined to include dragons, if the
relevant federal comparator outlawed possession of the same animals but did not include dragons. We see no reason to reach a different result here.
Id. at 1155. We agree.
If we had doubts on this score, they would be assuaged because the Wisconsin statute here acknowledges the question of factual impossibility. The statute defines cocaine as “any of [its] salts, esters, isomers and salts of esters and isomers that are theoretically possible within the specific chemical designation.”
To avoid this result, Turner would have us end the analysis after identifying one type of conduct that is not in the federal counterpart, even if that conduct could not possibly occur and the plain language of the state statute indicated that the state legislature did not intend to convey that it thought such conduct occurs. It is easy to think of some resulting absurdities from this approach. The Ninth Circuit, for its part, hypothesized a state statute outlawing possession of dangerous animals defined to include dragons. Rodriguez-Gamboa, 972 F.3d at 1155. We hypothesized at argument here a statute making it a crime to assault human beings, leprechauns, and zombies. The mismatch based on a theoretically possible assault on a leprechaun or zombie would not reach beyond the actual scope of a violent felony under the ACCA. The categorical approach does not require courts to ignore whether mismatched “conduct” is actually impossible as a matter of scientific fact.
3. Turner‘s Additional Arguments
Turner offers two additional arguments. First, he asserts that a factual impossibility inquiry violates the Sixth Amendment. It does not. The Sixth Amendment prohibits judges from making factual findings at sentencing that increase a defendant‘s minimum or maximum penalty other than a prior conviction. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Alleyne v. United States, 570 U.S. 99, 115–16 (2013). By finding that Turner could not have been convicted under the Wisconsin statute for possessing cocaine esters, Turner argues, the district court explored the facts of his particular prior offense, which Apprendi and Alleyne should bar. We disagree.
Apprendi and Alleyne bar courts from going “beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense.” Mathis v. United States, 579 U.S. 500, 511 (2016). A judge cannot “mak[e] a disputed determination about ‘what the defendant and state judge must have understood as the factual basis of the prior plea’ or ‘what the jury in a prior trial must have accepted as the theory of the crime.‘” Id., first quoting Shepard v. United States, 544 U.S. 13, 25 (2005) (plurality opinion), and then quoting Descamps v. United States, 570 U.S. 254, 269 (2013). Such findings address adjudicative facts related to the specific manner in which a defendant committed his prior offense or how a jury and/or judge might have viewed his conduct. Adjudicative facts
The type of fact-finding required to understand whether conduct included in statutory language can possibly occur is different. The district court here was not making findings about Turner‘s individual conduct. Instead, it was finding what amounts to a legislative fact: that cocaine esters do not exist and cannot exist, so neither Turner nor anyone else could be convicted for trafficking in them. This is a type of legislative fact-finding that judges conduct regularly in challenges to legislation. “The concept of a legislative fact comes into its own when there is no reason to believe that certain facts pertinent to a case vary from locality to locality, or from person to person....” Frank v. Walker, 773 F.3d 783, 795 (7th Cir. 2014) (Posner, J., dissenting from denial of rehearing en banc). Legislative facts “are not unique to a particular case and provide therefore an appropriate basis for legislation of general application.” Id. Asbestosis, for example, either is a progressive disease or it is not. Nothing supports the idea that it is progressive in some cases but not in others. Similarly here, we see no risk that cocaine esters could exist in Illinois but not Wisconsin. The question of factual impossibility in this case presents a legislative fact that applies broadly to the state of the world; it does not require making a finding specific to Turner‘s prior convictions. Apprendi and Alleyne concern the latter.
In addition, courts regularly engage in analogous fact-finding under the categorical approach. Consider the “realistic probability” test. See Duenas-Alvarez, 549 U.S. at 193. That test asks whether there is “a realistic probability ... that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Id.; see also Portee v. United States, 941 F.3d 263, 271–73 (7th Cir. 2019) (applying the realistic probability test to Indiana‘s “felony intimidation” statute). While ultimately a legal determination, this analysis requires courts to determine a fact about the world: whether “State A” realistically prosecutes “Conduct B.” It could not be the case that, for one defendant, State A would realistically apply its statute to Conduct B, but for another defendant, it would not. Apprendi and Alleyne do not bar judges from making such a “factual” determination related to state prosecutorial practices. The Supreme Court has expressly endorsed such an inquiry. Following that guidance, determining whether overbroad conduct actually exists must be permissible fact-finding under the Sixth Amendment.
Finally, Turner argues that a factual impossibility approach will lead to inconsistent outcomes, which the categorical approach was designed in part to prevent. We are not convinced. If district courts split over whether it is factually possible to create esters of cocaine, we will resolve the issues on appeal. That possible future challenge does not convince us that we should make a decision here by assuming that a scientific impossibility is real, just as we would not base a decision on the assumption that leprechauns or zombies are real.
To sum up, a categorical mismatch cannot be based on factually impossible conduct. Since esters of cocaine cannot exist chemically, there is no genuine mismatch between the Wisconsin statute under which Turner was convicted and the ACCA‘s definition of a “serious drug offense.” Turner was properly classified as an armed career criminal based on his
C. Evidentiary Hearing?
There is one issue left. In his appellate briefs, Turner asserts that if we reject his arguments against considering factual impossibility, we should order a limited remand for an evidentiary hearing on the chemistry question of factual impossibility. We deny this request. After the government presented its evidence of factual impossibility in the district court, Turner twice asked for more time to consult an expert. He also suggested that an evidentiary hearing might be necessary to address the government‘s evidence. The district court granted his requests and scheduled a hearing. Two months after his first request for more time, Turner changed his mind and together with the government asked the court to vacate the hearing since he did not plan on presenting evidence to rebut the government‘s evidence of factual impossibility. That‘s textbook waiver. United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005) (“The touchstone of waiver is a knowing and intentional decision.“).
As we have explained: “To waive an argument on appeal, a defendant must have had some strategic reason for waiving the argument in the trial court.” United States v. Hammond, 996 F.3d 374, 399 (7th Cir. 2021). Ruth and De La Torre put Turner on notice that the government could argue factual impossibility. After having been allowed ample time to track down contrary evidence, Turner chose not to dispute the factual impossibility of esters of cocaine in the district court (or on appeal) and chose to rely instead on the legal arguments we have rejected above. Turner cannot now assert that we should give him the evidentiary hearing that he forwent because he “had no reason to rebut the government‘s evidence.” Turner was not entitled first to try out his legal theory to block consideration of facts and then, upon the failure of that strategy on appeal, start again in the district court with a different strategy. Forgoing the promised evidentiary hearing was a strategic choice, not an inadvertent one.
AFFIRMED.
JACKSON-AKIWUMI, Circuit Judge, concurring. I agree with the majority opinion regarding Turner‘s argument about the “narcotic effect” of cocaine: The plain meaning of the Wisconsin statute, as confirmed by the record before us, shows that narcotic effects are a subset of depressant effects. So, the Wisconsin statute is not categorically broader than its federal counterpart in this way.
As for Turner‘s esters and salts of esters of cocaine argument, I agree with the majority opinion that the Wisconsin statute explicitly contemplates the question of “theoretical possibility.” As I see it, that statutory language permits us to decide this case using the traditional categorical approach. After doing so, I, like my colleagues, conclude that the Wisconsin statute does not sweep more broadly than its federal counterpart on this axis either.
I concur only in the judgment because I worry that the majority opinion‘s approach of adding a new inquiry to the analysis—determining whether there is a factual impossibility before reaching the realistic probability test—risks plunging trial courts into fact-intensive inquiries and risks appellate courts creating binding precedent on rapidly changing scientific developments.
Before I explain these two concerns, I briefly summarize how, in my view, this case can be resolved using the traditional
Wisconsin statute is facially broader than federal law—it could be broader, or not. Without clarity in the statute (or in other statutes that inform the statute of conviction) on how to determine theoretical possibility under the statute, I turn to the realistic probability test. Turner does not point to any cases where someone was prosecuted for esters or salts of esters of cocaine (because, as best as we know right now, esters of cocaine do not exist). Thus, there is no realistic probability that the state would prosecute someone for esters or salts of esters of cocaine. Consequently, the Wisconsin statute does not criminalize more conduct than its federal counterpart and Turner‘s prior convictions under the Wisconsin statute qualify as ACCA predicates. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
The majority opinion does not travel this road. Instead, the majority develops an intermediary step where “[a]fter identifying an apparent mismatch,” a court must determine “whether that supposedly overbroad conduct can actually occur.” This rule invites two practical problems that courts may now face: (1) categorical approach cases can turn into full-blown battle-of-the-expert mini-trials over chemistry concepts at the district court level; and (2)
As for the first potential problem, one of the core reasons the Supreme Court adopted the categorical approach was to avoid “the practical difficulties and potential unfairness of a factual approach.” Taylor v. United States, 495 U.S. 575, 601 (1990). The Court was concerned that trial courts would have to sift through the charging papers, review trial evidence, and even present additional witnesses—all to show that an underlying conviction qualified, in the case of Taylor, as generic burglary. Id. This concern, among others, is why the Supreme Court declined to apply the modified categorical approach to indivisible statutes. See Descamps v. United States, 570 U.S. 254, 270–71 (2013). Although today‘s decision does not deal with the papers and evidence underlying a prior state conviction, it nonetheless welcomes a factual inquiry into categorical approach cases. This seems as if it will result in parties presenting competing expert testimony as to whether an ester, isomer, or salt of cocaine, methamphetamine, fentanyl, or another illegal drug exists. In turn, the parties will file Daubert motions or otherwise attempt to undermine the other side‘s view. All in all, district courts at sentencing will now have to engage in lengthy, drawn-out factual discussions of the chemistry of these substances. This did not happen in Turner‘s case, but it easily could in another case. Such a result undermines the spirit of the categorical approach.2
As for the second potential problem, the majority opinion states that “[t]he question of factual impossibility in this case presents a legislative fact that applies broadly to the state of the world,” and that “[i]f district courts split over whether it is factually possible to create esters of cocaine, we will resolve the issues on appeal.” This pledge turns issues of evolving science into precedent. If we as an appellate court determine that, as a matter of law, there are no esters of cocaine or whatever the substance at issue is, we fail to account for the constant efforts of drug manufacturers to iterate and develop their products. Take, for example, the history of fentanyl analogues. Just between 2012 and 2016, “seventeen fentanyl analogues were reported to the UNODC ... [but] only one of them, acetylfentanyl, has been placed under international control.” United Nations Office on Drugs & Crime, Global SMART Update: Fentanyl and its Analogues – 50 Years On, at 4 (Mar. 2017), https://tinyurl.com/8efp6wck; see also Harold E. Schueler, Emerging Synthetic Fentanyl Analogs, Academic Forensic Pathology 36, 38 (2017) (listing six fentanyl analogues developed over two years). In UNODC‘s view, “[t]he countless possibilities to create new compounds by small changes in chemical structures pose a growing challenge to international control of the opioid trade.” United Nations Office on Drugs & Crime, Global SMART Update: Fentanyl and its Analogues – 50 Years On, at 4. The rapid development of fentanyl analogues highlights how the scientific methods involved in these illicit substances are ever-changing. Therefore, I worry that our caselaw will ossify these “legislative facts” of chemistry in a way
Because I would resolve this case using the classic application of the categorical approach, and the majority‘s new rule potentially presents two applicability problems, I concur only in the judgment.
Notes
Taylor suggests that the realistic probability test applies when a state statute “clearly overlap[s]” with its federal counterpart and does not apply when two federal statutes have “no overlap to begin with.” But it is unclear how Taylor‘s logic affects the realistic probability test in situations where two federal statutes “clearly overlap” or where a state statute and its federal counterpart have “no overlap to begin with.” We need not parse these nuanced situations today. Neither Turner nor the government believe Taylor is of any consequence—neither side offered any explanation of the case‘s relevance in a letter pursuant to
For the first time on appeal, Turner offers an additional apparent mismatch related to narcotic analogs of cocaine. Wisconsin law defines analogs to include those in which the defendant “represents or intends” the substance as having a narcotic effect.
966 F.3d at 648. If this sentence were read in isolation, it would tend to support his argument. But read with the rest of Ruth in mind, this argument fails to persuade. The sentence did not trump everything else in the opinion, which expressly left open the question of genuine factual impossibility.It is enough for us to say that where, as here, the state statute of conviction is plain and intentional, our job is straightforward: we compare the state statute to the federal recidivism statute at issue and ask only if the state law is the same as or narrower than federal law.