Case Information
*1 Before E ASTERBROOK , K ANNE , and H AMILTON , Circuit Judges .
E ASTERBROOK , Circuit Judge
. After pleading guilty to pos- sessing cocaine with intent to distribute, 21 U.S.C. §841(a)(1), Brian Redden was sentenced to 151 months’ imprisonment and 3 years’ supervised release. He appealed, but his ap- pointed lawyer has moved to withdraw under Anders v. Cali- fornia , 386 U.S. 738 (1967), representing that the appeal is frivolous.
We grant that motion, largely for reasons detailed in a nonprecedential order released together with this opinion. One issue raised in Redden’s response to the Anders brief may have significance for other appeals and justifies discus- sion in a published opinion.
The district court treated Redden as a career offender under U.S.S.G. §4B1.1 because of his prior convictions. Red- den contends that one of these—delivery of a controlled sub- stance in violation of 720 ILCS 570/401—should not have been classified as a “controlled substance offense” for the purpose of §4B1.1(a)(3) because the elements of that Illinois crime differ from the definition in §4B1.2(b):
The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a term ex- ceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a coun- terfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, ex- port, distribute, or dispense.
Redden observes that United States v. Hinkle , 832 F.3d 569 (5th Cir. 2016), holds that the Texas offense of delivering a controlled substance includes conduct that falls outside this definition and so is not a “controlled substance offense”. He contends that we should treat Illinois law the same way.
The key phrase in §4B1.2(b) is “manufacture, import, ex- port, distribution, or dispensing”. As with most other recidi- vist enhancements, these words are applied to the elements of the crime of conviction, not to what the accused did in fact. See, e.g., Mathis v. United States , 136 S. Ct. 2243 (2016). Hinkle found that the elements of the Texas crime do not match the specifications in §4B1.2(b) because it is unlawful in Texas to offer a controlled substance for sale, as well as to *3 manufacture, import, export, distribute, or dispense it. See also United States v. Madkins , 866 F.3d 1136, 1145 (10th Cir. 2017) (same conclusion about Kansas law).
Illinois, by contrast, does not make it a crime to offer a controlled substance. The definition that underlies the of- fense established by 720 ILCS 570/401 tells us that “deliver” and “delivery” mean an “actual, constructive or attempted transfer”. 720 ILCS 570/102(h). Any conduct meeting the state’s definition of “delivery” comes within §4B1.2(b) be- cause “transfer” is just another word for distribute or dis- pense. Because Illinois law lacks the feature that made pos- sible a substantive conviction in Texas or Kansas without meeting the requirements of §4B1.2(b), it would be frivolous for counsel to argue that Redden is not a career offender.
Counsel’s motion to withdraw is granted, and the appeal is dismissed as frivolous.
