UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH A. WILLIAMS, Defendant-Appellant.
No. 18-2662
United States Court of Appeals For the Seventh Circuit
ARGUED JULY 9, 2019 — DECIDED JULY 23, 2019
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:16-CR-100-JD-MGG-1 — Jon E. DeGuilio, Judge.
Before KANNE, HAMILTON, and SCUDDER, Circuit Judges.
I. Factual and Procedural Background
Police arrested Williams for selling cocaine and then found a gun in his pocket. After he pleaded guilty to federal firearm and cocaine charges, the government sought a sentencing enhancement under
The district court concluded that Williams was an armed career criminal under the ACCA,
II. Analysis
On appeal, Williams argues that the district court improperly enhanced his guideline range because his dealing-cocaine offense is not a predicate “serious drug offense” under the ACCA. The statute defines a “serious drug offense” to include crimes “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.”
Williams first contends that his conviction for dealing cocaine is not a predicate offense because the district court did not know which statute the Indiana court used to convict him. He concedes that he pleaded guilty to delivering cocaine, but he points out that the state court judgment refers only to the “lesser included offense of Dealing Cocaine” and does not cite a more specific statutory provision. Therefore, Williams reasons, the district court plainly erred in deciding that his statute of conviction meets the definition of a “serious drug offense” under the ACCA. We disagree for two independent reasons, one legal and one factual.
First, as a matter of law, even assuming the state court documents were ambiguous, the ambiguity would not establish plain error. Williams did not object at sentencing to the court‘s reliance on this conviction as a predicate offense. Naturally, then, the parties did not put energy into building a thorough record on the issue. The court was entitled to accept the undisputed assertion in the presentence investigation report as a finding of fact. See United States v. Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir. 2010). Even if the documents may not resolve the issue beyond all reasonable doubt, this is plain-error review. It is the appellant‘s burden to show that an error actually occurred, not merely that an error might have occurred. United States v. Ramirez, 606 F.3d 396, 398–99 (7th Cir. 2010) (rejecting government‘s confession of error on plain-error review; in absence of objection in district court, record did not show definitively whether defendant‘s prior convictions qualified as crimes of violence under Sentencing Guidelines). On appeal, Williams points to no evidence suggesting that he was convicted of a crime other than
Second, as a matter of fact, the context here actually removes uncertainty about the nature of the Indiana conviction. The information charged Williams with delivering cocaine, and it cited
That brings us to Williams’ second argument, that even if he was convicted under
First, circuit precedent forecloses one premise of his argument—that the Indiana statute is indivisible. We held in United States v. Smith, 921 F.3d 708, 715 (7th Cir. 2019), that this Indiana statute is divisible—that is, it contains multiple crimes under one heading or section. See Descamps v. United States, 570 U.S. 254, 261–62 (2013) (explaining divisibility). Williams admits that he was convicted of “delivering” cocaine, not “financing” it. And the ACCA unquestionably covers delivering cocaine. See Meherg, 714 F.3d at 459–60. By that reasoning, the ACCA enhancement was proper under
Williams counters that Smith was decided wrongly. He asks us to seek guidance on the divisibility of
The second reason Williams’ challenge fails is that even if
As we explained in Anderson, under the ACCA, we apply the “categorical” method that focuses only on the elements of the crime of conviction, not the actual facts of the defendant‘s conviction. 766 Fed. App‘x at 380, citing Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). Under that method, if the elements of the crime of conviction reach 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. See Mathis, 136 S. Ct. at 2248, citing Taylor v. United States, 495 U.S. 575, 600–01 (1990).
The principal point of dispute is the Indiana statute‘s application to financing of cocaine manufacture or delivery. The Indiana statute under which Williams was convicted provided in 2007:
(a) A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
cocaine or a narcotic drug, or methamphetamine, pure or adulterated, classified in schedule I or II; or
(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, or methamphetamine, pure or adulterated, classified in schedule I or II;
commits dealing in cocaine or a narcotic drug, or methamphetamine, a Class B felony, except as provided in subsection (b).
Williams argues that by including financing the manufacturing or delivery of cocaine, the Indiana statute reaches more broadly than the ACCA definition of a serious drug crime. We disagree.
Recall that the ACCA‘s text covers crimes “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.”
As we explained in our order in Anderson, federal courts interpret the word “involving” as having “expansive connotations.” 766 Fed. App‘x at 382, quoting United States v. King, 325 F.3d 110, 113 (2d Cir. 2003). In King, the Second Circuit ruled that the word “must be construed as extending the focus of
Williams argues that Indiana courts have interpreted the “financing” language to apply to a defendant‘s purchase of drugs for his own personal use. The Indiana Court of Appeals persuasively rejected that broad reading in Hyche v. State, 934 N.E.2d 1176, 1179 (Ind. App. 2010), explaining that the term “is commonly construed as applying to one who acts as a creditor or an investor and not one who merely acts as a purchaser.” In Hyche, the defendant had been convicted of felony murder in a drug deal in which he was trying to buy ecstasy for his personal use. The state court reversed his conviction because he had not been “financing” the purchase with his own money for his own use. The defendant had acted “merely as a purchaser and not as a creditor or an investor,” and “he could no more be deemed to be financing the delivery of ecstasy than a grocery shopper could be deemed to be financing the supermarket‘s inventory.” Id. at 1180.
To counter Hyche, Williams cites two Indiana appellate cases that he contends ruled differently. In Kibler v. State, 904 N.E.2d 730 (Ind. App. 2009) (non-precedential), the court vacated a conviction for dealing in heroin on double jeopardy grounds but based its conclusion on the unexplained and unjustified theory that the defendant had “financed” his own purchase of heroin for his own use. In Vausha v. State, No. 13A01-0607-CR-280, 2007 WL 2595427 (Ind. App. 2007) (nonprecedential), the defendant and her husband had teamed up to sell methamphetamine to a neighbor who was cooperating with the police, and the defendant had participated in negotiating the price of the sale.
These cases do not convince us that the Indiana statute actually reaches activity that would not be a serious drug offense under the federal ACCA. Both are non-precedential, and both predate Hyche, which is precedential and well-reasoned. Also, Vausha was not even a personal-use case. The defendant there financed drug dealing in part by buying “600 cold pills” to make more than three grams of methamphetamine that she then tried to sell. 2007 WL 2595427, at *5.
Hyche provides the most authoritative guidance on the scope of the Indiana crimes of “financing” the manufacture and delivery of cocaine. That scope falls within the federal definition of a serious drug offense under the ACCA.
The judgment of the district court is AFFIRMED.