UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NATHANIEL RUTH, Defendant-Appellant.
No. 20-1034
United States Court of Appeals For the Seventh Circuit
Argued June 3, 2020 — Decided July 20, 2020
Appeal from the United States District Court for the Central District of Illinois. No. 19-cr-20005 — Michael M. Mihm, Judge.
Before SYKES, Chief Judge, and BAUER and ST. EVE, Circuit Judges.
I. Background
We can be brief in our summary of the facts because this appeal raises challenges only to the application of sentencing enhancements, which present pure questions of law. In 2018, the Champaign, Illinois police department‘s Street Crime Task Force used a confidential source to conduct multiple controlled buys of drugs from Nathaniel Ruth. That investigation came to a head on December 5, 2018, when officers surveilling Ruth pulled him over while driving and arrested Ruth for driving with a revoked license. During the arrest, Ruth told the officers that there was a firearm in the vehicle. Officers subsequently executed a search warrant at Ruth‘s residence and recovered 2.9 grams of crack cocaine, 5.6 grams of powder cocaine, a counterfeit $100 bill, $2,250 in U.S. currency, and various drug paraphernalia.
A grand jury indicted Ruth on two counts: one count of possession of a firearm by a felon in violation of
After ironing out a defect in the indictment, Ruth eventually pleaded guilty to both counts without a plea agreement. The probation office determined that Ruth was a career offender because at the time of the instant offenses, he had at least two prior felony convictions for controlled substance offenses. See
Ruth objected to his classification as a career offender. He argued that his 2006 Illinois conviction was not a “controlled substance offense” under
The government responded, primarily, that a plain reading of the career-offender guideline covered both federal and state definitions of controlled substance offenses. That is because the Guidelines, for purposes of the career offender enhancement, define a “controlled substance offense” as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits … the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”
The district court agreed with the government “that the wording of the guideline is such that I don‘t think the analysis that defense counsel has made is the one that truly applies” and overruled Ruth‘s objection to the career offender enhancement. The court then sentenced Ruth to 108 months’ imprisonment on each of Count One and Count Two, to be served concurrently. Ruth timely appealed.
II. Discussion
Ruth challenges his sentence on two related grounds—both concerning his 2006 Illinois conviction for possession with intent to deliver cocaine. First, Ruth argues that the district court erred in applying the
A. Predicate Felony Drug Offense
Before sentencing, the government filed an information pursuant to
1. The categorical approach
Section 841(b)(1)(C), the applicable penalty provision for Ruth‘s instant federal cocaine conviction, provides that if a defendant has a “prior conviction for a felony drug offense,” the statutory maximum term of imprisonment increases from twenty years’ imprisonment to thirty years’ imprisonment.
an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.
To determine whether Ruth‘s prior Illinois conviction is a “felony drug offense” within the meaning of federal law, we apply the Taylor categorical approach. United States v. Elder, 900 F.3d 491, 497–501 (7th Cir. 2018) (citing Taylor v. United States, 495 U.S. 575 (1990)). Under the categorical approach, courts look solely to whether the elements of the crime of conviction match the elements of the federal recidivism statute. Id. at 501. “If, and only if, the elements of the state law mirror or are narrower than the federal statute can the prior conviction qualify as a predicate felony drug offense.” United States v. De La Torre, 940 F.3d 938, 948 (7th Cir. 2019).
The Supreme Court recently clarified its categorical-approach jurisprudence in Shular v. United States, 140 S. Ct. 779 (2020). There are “two categorical methodologies,” depending on the statute at issue. Id. at 783. In the first categorical methodology, some statutes require “the court to come up with a ‘generic’ version of a crime—that is, the elements of ‘the offense as commonly understood.‘” Id. (quoting Mathis v. United States, 136 S. Ct. 2243, 2247 (2016)). We will refer to this first method as the generic-offense method. The archetypal example is Taylor itself, which confronted the Armed Career Criminal Act‘s “unadorned reference to ‘burglary‘” and required the Court to “identif[y] the elements of ‘generic burglary’ based on the ‘sense in which the term is now used in the criminal codes of most States.‘” Id. (quoting Taylor, 495 U.S. at 598–99). The Court then matched the elements of the offense of conviction against those of the generic crime. Id. The second categorical-approach method, though, concerns statutes that do not reference a certain offense, but rather “some other criterion” as the measure for prior convictions. Id. The example given for this second methodology was where an immigration statute assigned consequences for a prior conviction for an offense that “involves fraud or deceit,” and the Court simply looked to whether the prior offense‘s elements “necessarily entail fraudulent or deceitful conduct” as the appropriate measure. Id. (quoting Kawashima v. Holder, 565 U.S. 478, 483–85 (2012)). We will call this second method the conduct-based method.
In Shular, the Court held that the second categorical methodology—the conduct-based method—applies to determining whether a state offense is a “serious drug offense” under the Armed Career Criminal Act (ACCA),
The conduct-based categorical approach applies here to
Here the government filed an information pursuant to
Coca leaves and any salt, compound, isomer, salt of an isomer, derivative, or preparation of coca leaves including cocaine or ecgonine, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine (for the purpose of this paragraph, the term “isomer” includes optical, positional and geometric isomers)[.]
Despite the statutory mismatch, the government responds that the Illinois statute nonetheless “substantially corresponds” to the federal statute and thus is not overbroad. The argument finds its roots in Quarles v. United States, where the Supreme Court admonished that “the Taylor Court cautioned courts against seizing on modest state-law deviations from the generic definition of burglary,” and held that the relevant question there was whether the state law “‘substantially corresponds’ to (or is narrower than) generic burglary.” 139 S. Ct. 1872, 1880 (2019) (quoting Taylor, 495 U.S. at 602). But Quarles, like Taylor itself, involved the generic-offense method of the categorical approach that, when the statute at issue “refers generally to an offense without specifying its elements,” requires a court as a preliminary step to “define the offense so that it can compare elements, not labels.” Shular, 140 S. Ct. at 783. This process of the court coming up with a generic version of a crime must allow for some margin of inconsequential discrepancy. Post-Shular, however, it is clear that looking
Flowing from its reliance on the “substantial correspondence” between the Illinois and federal statutes, the government next argues that there is no basis to conclude that positional isomers of cocaine exist in the drug trade. In support of its assertion, during sentencing in the district court, the government submitted an affidavit of a retired DEA research chemist, John Casale. According to Agent Casale, during his tenure at the DEA he analyzed over 50,000 cocaine samples from law enforcement evidentiary seizures and did not identify any positional isomers of cocaine in any of those samples. This may be so, but Agent Casale does not actually aver that positional isomers of cocaine do not exist. And that is an important distinction. It is not the province of the judiciary to rewrite Illinois‘s statute to conform to a supposed practical understanding of the drug trade. This is particularly true here where the Illinois legislature purposefully included positional isomers of cocaine in its statute. Effective January 1, 1984, the legislature added the word “isomer” to the definition of cocaine. People v. Godek, 487 N.E.2d 810, 812 n.3 (Ill. 1986). Shortly thereafter, the legislature again amended the statute to expressly identify optical, positional, and geometric isomers, as it appears today. See Act of Sept. 8, 1985, § 1, 1985 Ill. Laws 2288, 2292–93. Though the government would have us believe that Illinois‘s inclusion of positional isomers of cocaine is “nothing but spilled ink,” it was far from a potential drafting oversight. Illinois went from generically prohibiting “isomers” to expressly identifying the precise types of cocaine isomers it sought to proscribe. We must give effect to the law as written.
We encountered nearly identical facts and arguments in De La Torre, save for the drug at issue being methamphetamine and its isomers, and we reach the same outcome. 940 F.3d at 950–52. Like there, the government offers theoretical challenges to positional isomers of cocaine but cannot avoid the inescapable conclusion that the plain language of the state statute categorically covers a larger swath of conduct than its federal counterpart. To be certain, in De La Torre we noted that we took no position on the scientific merits of the government‘s isomer-related arguments, nor do we here. Id. at 952 n.5. Although we left the door ajar for future science-based arguments, it was not an open-ended invitation to argue that every isomeric mismatch is mere surplusage. 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. 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.
2. Divisibility of 720 ILCS 570/401(c)(2)
Ruth is not quite out of the woods yet. Even if his state statute of conviction is overbroad, the government urges that it is divisible. A statute is divisible if it “sets out one or more elements of the offense in the alternative.” Descamps v. United States, 570 U.S. 254, 257 (2013). If so, we can apply what has been dubbed the modified categorical approach and “consult a limited class of documents” to determine which
We start with the structure of the statute. Section 401, in general, makes it “unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance … , a counterfeit substance, or a controlled substance analog.”
(c) Any person who violates this Section with regard to the following amounts of controlled or counterfeit substances or controlled substance analogs, notwithstanding any of the provisions of subsections (a), (b), (d), (e), (f), (g) or (h) to the contrary, is guilty of a Class 1 felony. The fine for violation of this subsection (c) shall not be more than $250,000:
(1) 1 gram or more but less than 15 grams of any substance containing heroin, or an analog thereof;
(1.5) 1 gram or more but less than 15 grams of any substance containing fentanyl, or an analog thereof;
(2) 1 gram or more but less than 15 grams of any substance containing cocaine, or an analog thereof;
(3) 10 grams or more but less than 15 grams of any substance containing morphine, or an analog thereof;
…
(11) 50 grams or more but less than 200 grams of any substance containing a substance classified in Schedules I or II, or an analog thereof, which is not otherwise included in this subsection.
We pause here, though, to take a step back and clarify the relevant divisibility question. The government argues vaguely that the “relevant subsection” of the Illinois Controlled Substances Act is divisible. Though far from apparent, we think the government suggests merely that subsection (c) is divisible from the rest of section 401 overall. The text makes clear that
No one disputes that Ruth was convicted under subsection (c)(2). So it does not matter for our purposes that the higher
3. Plain error
Because Ruth‘s 2006 Illinois conviction under
An error is plain if it is “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). That is to say that “while the error must be straightforward, it can be so in hindsight.” United States v. Caputo, 978 F.2d 972, 975 (7th Cir. 1992). The error must be plain, “but it needn‘t be blatant.” Id. After all, “plain-error review is not a grading system for trial judges.” Henderson v. United States, 568 U.S. 266, 278 (2013). Though the parties missed the argument, they did not miss the core issue. Ruth objected to the career offender enhancement under the Guidelines based on his 2006 Illinois conviction for the same categorical-overbreadth reasons he now makes in relation to the
The error here affected Ruth‘s substantial rights because the enhancement increased his Guidelines range. Without the
B. Career Offender Enhancement
Ruth also contends that his 2006 Illinois conviction is not a “controlled substance offense” under the Guidelines and thus argues he was erroneously sentenced as a career offender as well. Ruth objected to the career offender enhancement at sentencing and preserved this challenge. Whether a prior offense is a predicate controlled substance offense under the Guidelines is a question of law that we review de novo. United States v. Tate, 822 F.3d 370, 375 (7th Cir. 2016).
A defendant is a career offender if, among other requirements, “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
The fatal flaw in Ruth‘s logic is that the career-offender guideline, and its definition of controlled substance offense, does not incorporate, cross-reference, or in any way refer to the Controlled Substances Act. This is significant. The Sentencing Commission clearly knows how to cross-reference federal statutory definitions when it wants to. Indeed, in the very same definitional section for the career-offender guideline, the Commission defined “crime of violence” to incorporate the definition of
We addressed a similar question in United States v. Hudson, whether, under the Sentencing Guidelines, crimes involving phony versions of illegal drugs are properly characterized as controlled substance offenses, and it guides us here. 618 F.3d 700, 701 (7th Cir. 2010). The defendant in that case was convicted of possession of a firearm by a felon under
Notwithstanding our conclusion in Hudson, Ruth instead points to our decision in United States v. Smith, 921 F.3d 708 (7th Cir. 2019), and asserts that we have already agreed with his reading of the Guidelines. In Smith, the defendant challenged whether “his conviction under Indiana‘s ‘Dealing in cocaine or narcotic drug’ statute,
We recognize that a circuit split exists on this issue, and that the weight of authority favors Ruth. As far as we are aware, the Second, Fifth, Eighth, and Ninth Circuits have all concluded that “controlled substance” in
Our colleagues on the Fifth, Eighth, and Ninth Circuits all considered a different provision of the Guidelines and a different term, but applied the same basic reasoning. The Ninth Circuit held that the meaning of “drug trafficking offense” under
On the other side of the ledger are the Sixth and Eleventh Circuits—albeit in unpublished opinions only. The Sixth Circuit first addressed the issue in United States v. Smith, where the defendant “argue[d] that because the list of controlled substances criminalized under Illinois law [
[B]ecause the Guidelines specifically include offenses under state law in § 4B1.2, the fact that Illinois may have criminalized the ‘manufacture, import, export, distribution, or dispensing’ of some substances that are not criminalized under federal law does not prevent conduct prohibited under the Illinois statute from qualifying, categorically, as a predicate offense. Smith‘s prior convictions under 720 Ill. Comp. Stat. § 570/401(d) thus are predicate offenses.
Id. at 489. Simply, “there is no requirement that the particular controlled substance underlying a state conviction also be controlled by the federal government.” Id. In a subsequent opinion, the Sixth Circuit reiterated Smith‘s holding and added that “[i]n crafting the federal sentencing Guidelines and substantive federal criminal
But we are not joining a side today; we have already staked out our position in Hudson. Granted, in Leal-Vega, the Ninth Circuit distinguished the reasoning of our Hudson decision as to the term “counterfeit substance” because “[t]he word ‘counterfeit’ has a normal, everyday meaning that we all understand,” whereas “[t]he same is not true of the word ‘controlled.‘” Leal-Vega, 680 F.3d at 1166–67. “While the word ‘controlled’ may have a plain and ordinary meaning, whether a substance is ‘controlled’ must, of necessity, be tethered to some state, federal, or local law in a way that is not true of the definition of ‘counterfeit.‘” Id. at 1167. But none of the reasoning in Hudson turned on the specific word “counterfeit” having some sort of special independent, everyday meaning that sets it apart from other words. Indeed, that seems to draw an arbitrary line between how we interpret one term versus another term in the very same definition. We see no textual basis to engraft the federal Controlled Substances Act‘s definition of “controlled substance” into the career-offender guideline.
The career-offender guideline defines the term controlled substance offense broadly, and the definition is most plainly read to “include state-law offenses related to controlled or counterfeit substances punishable by imprisonment for a term exceeding one year.” Hudson, 618 F.3d at 703. A controlled substance is generally understood to be “any of a category of behavior-altering or addictive drugs, as heroin or cocaine, whose possession and use are restricted by law.” Controlled substance, The Random House Dictionary of the English Language (2d ed. 1987). Given the natural meaning of a controlled substance, Ruth‘s 2006 cocaine conviction under Illinois law is a controlled substance offense according to the career-offender guideline.
III. Conclusion
Although the district court properly sentenced Ruth as a career offender, his Guidelines range was further elevated due to the increase in his statutory maximum sentence as a result of the erroneous