Elion v. United States
| Docket Number | 20-1725 |
| Decision Date | 07 August 2023 |
| Citation | 76 F.4th 620 |
| Parties | Otis R. ELION, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Illinois. No. 3:17-cv-01349 — J. Phil Gilbert, Judge.
Otis R. Elion, Federal Correctional Institution, Ashland, KY, for Petitioner-Appellant.
James M. Cutchin, Amanda A. Robertson, Attorneys, Office of the United States Attorney, Benton, IL, Peter Reed, Attorney, Office of the United States Attorney, Fairview Heights, IL, for Respondent-Appellee.
Aaron Z. Roper, Attorney, Williams & Connolly LLP, Washington, DC, for Amicus Curiae.
Before Brennan, Scudder, and Kirsch, Circuit Judges.
After Otis Elion pleaded guilty to distributing methamphetamine, a federal district court sentenced him as a career offender under U.S. Sentencing Guideline § 4B1.1. Elion's attorney did not challenge that designation, and the court imposed a 167-month prison term. Through a motion under 28 U.S.C. § 2255, Elion argues his attorney's failure to object amounts to ineffective assistance. The district court denied relief, concluding that Elion was properly sentenced as a career offender and, therefore, did not suffer prejudice from counsel's performance. Though we commend the district court for its close and careful analysis, after our application of the categorical approach, we conclude that Elion does not qualify as a career offender. So, we reverse the denial of Elion's § 2255 motion and remand for an evaluation of counsel's performance.
In 2017, Elion pleaded guilty to three counts of distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Because Elion had prior state and federal drug-related convictions, the United States Probation Office classified him as a career offender. See U.S.S.G. §§ 4B1.1(a), 4B1.2(b). That designation yielded a heightened Guidelines range, which the Probation Office identified as 151-188 months.1 Elion's attorney did not challenge this enhancement, and the district court adopted the Presentence Investigation Report without modification.
Elion timely appealed his sentence, but his attorney moved to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Elion voluntarily dismissed his consolidated direct appeals in September 2017. Then in December 2017, Elion filed a pro se motion in the district court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In his motion Elion argued that had trial counsel objected to the career offender designation at sentencing, he would have received a lower Guidelines range and a much-reduced sentence.
Under Guideline § 4B1.1(a), a federal defendant qualifies as a career offender, and likely faces an elevated Guidelines range, if:
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). Elion was over 18 when convicted of the 2017 felony methamphetamine charges, so all agree he satisfies the first two requirements. Elion's arguments focus entirely on the third requirement: whether he has at least two prior convictions for controlled substance offenses.
A controlled substance offense under § 4B1.1(a) is:
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.
U.S.S.G. § 4B1.2(b). The Presentence Investigation Report identified three of Elion's prior convictions as controlled substance offenses.
Elion argues that neither the 1999 nor the 2000 Illinois conviction is a controlled substance offense, and he asserts constitutionally sufficient counsel would have recognized as much. Reviewing Elion's § 2255 motion, the district court concluded that Elion's 2006 federal conviction and at least his 2000 Illinois conviction qualify as controlled substance offenses. Those determinations meant Elion was properly sentenced as a career offender and could not prevail on his ineffective assistance claim. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (). Still, the district court granted Elion's certificate of appealability, and he timely appealed. We recruited counsel to act as amicus curiae and to make written and oral arguments on Elion's behalf.3
If we were considering Elion's sentencing arguments on direct review, the question for this court would be straightforward: Does Elion qualify as a career offender under Guideline § 4B1.1(a)? But Elion's case arrives by way of his § 2255 motion for ineffective assistance of counsel. Accordingly, we outline Elion's route to potential relief before examining the merits of his arguments.
In relevant part, 28 U.S.C. § 2255 authorizes a prisoner in federal custody to challenge his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Here, Elion claims a Sixth Amendment violation—he argues that he was denied effective assistance of counsel at sentencing. See generally Strickland, 466 U.S. at 685-86, 104 S.Ct. 2052; see also Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (). To prevail on this claim, Elion must satisfy two components. He "must show that counsel's performance was deficient." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Deficient performance turns on whether "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. He must also "show that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. 2052. To establish prejudice, "[Elion] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. As the district court correctly recognized, Elion can show prejudice only if he should not have been sentenced as a career offender. So, we start by analyzing the applicability of Guideline § 4B1.1(a).
To determine whether Elion's previous Illinois convictions qualify as controlled substance offenses for Guideline § 4B1.1(a), we must apply the categorical approach. United States v. Smith, 921 F.3d 708, 712 (7th Cir. 2019); see also Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016); Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The categorical approach is essentially a matching exercise: We look to see whether the Guidelines definition of controlled substance offense is broad enough to encompass the elements of Elion's statutes of conviction. Smith, 921 F.3d at 712; United States v. Carter, 961 F.3d 953, 956 (7th Cir. 2020). "If the elements of the crime of conviction are the same as, or narrower than, the elements of the" Guidelines offense, "the crime of conviction qualifies as a predicate offense." Smith, 921 F.3d at 712 (citation omitted). And, under this approach, we focus solely on the statute of conviction's elements, not the facts of the defendant's conduct. Mathis, 579 U.S. at 504, 136 S.Ct. 2243.
The analysis is straightforward when the Guidelines offense is broad enough to include all the elements of the statute of conviction. See id. at 504-05, 136 S.Ct. 2243. But the inquiry is more complex if one or more elements of the statute of conviction is broader than the elements of the Guidelines offense. Id. Then, we must determine whether the statute is "divisible." Id. at 505-06, 136 S.Ct. 2243.
A statute is divisible if, rather than defining a single set of elements for a single crime, it defines multiple crimes by "list[ing] elements in the alternative." Id. at 505, 136 S.Ct. 2243. When a statute is divisible, we can use the "modified categorical approach" and scrutinize certain record documents "to determine what crime, with what elements, [the] defendant was convicted of." Id. at 505-06, 136 S.Ct. 2243; Shepard, 544 U.S. at 26, 125 S.Ct. 1254. With the precise elements of conviction identified, we "can then compare that crime . . . with the relevant" Guidelines offense. Mathis, 579 U.S. at 506, 136 S.Ct. 2243. If the elements of that crime fall within the coverage of that offense, then there is no mismatch, even if the same statute lists other offenses with broader elements. Id. at 505-06, 136 S.Ct. 2243. By contrast, if a prior statute of conviction is both broader than the Guidelines offense and indivisible, then our work ends. Such a prior conviction cannot serve as a predicate offense even if the Guidelines offense covers the facts of the defendant's actual conduct. See Bridges v. United States, 991 F.3d 793, 800 (7th Cir. 2021) (citation omitted) ("The categorical method presumes that a...
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