United States v. Elder
| Decision Date | 15 August 2018 |
| Docket Number | No. 17-2207,17-2207 |
| Citation | 900 F.3d 491 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Matthew ELDER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Brian L. Reitz, Attorney, Office of the United States Attorney, Indianapolis, IN, Kyle Matthew Sawa, Attorney, Office of the United States Attorney, Evansville, IN, for Plaintiff-Appellee.
Johanna M. Christiansen, Attorney, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before Flaum and Ripple, Circuit Judges, and Gettleman, District Judge.*
In 2015, Matthew Elder was convicted of conspiring to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. At his first sentencing, the district court concluded that Mr. Elder was subject to a mandatory term of life imprisonment under § 841(b)(1)(A) because he had two prior "felony drug offense" convictions. We remanded for resentencing because we concluded that one of his prior convictions did not qualify as a felony drug offense as that term is defined by 21 U.S.C. § 802(44). We also directed the district court to decide whether his second prior conviction, from Arizona in 1999, qualified. United States v. Elder (Elder I ), 840 F.3d 455, 462 n.2 (7th Cir. 2016).
At Mr. Elder’s second sentencing, the district court concluded that the second of Mr. Elder’s prior convictions qualified as a felony drug offense under § 841(b)(1)(A) and, accordingly, that Mr. Elder was subject to a mandatory minimum sentence of twenty years’ imprisonment. The district court calculated Mr. Elder’s guidelines range to be 324 to 405 months’ imprisonment and sentenced Mr. Elder below the guidelines range to 260 months’ imprisonment. Mr. Elder now appeals his new sentence.
For the reasons stated in this opinion, we agree with Mr. Elder that the 1999 Arizona conviction is not a "felony drug offense" as defined by § 802(44). We therefore issue a limited remand under United States v. Paladino , 401 F.3d 471, 483–84 (7th Cir. 2005), to permit the district court to determine whether this error was harmless.
In 2013, Mr. Elder and his father were charged, along with six other codefendants, with having conspired "to traffic large quantities of methamphetamine from Arizona to southwest Indiana." Elder I , 840 F.3d at 457. The six other codefendants pleaded guilty; Mr. Elder and his father pleaded not guilty and went to trial. Mr. Elder was found guilty of conspiring to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846.
At the time of his present conviction, Mr. Elder had two prior Arizona drug convictions. In 1997, Mr. Elder was convicted of possession of drug paraphernalia, in violation of Arizona Revised Statutes section 13-3415. We will refer to Mr. Elder’s 1997 conviction as his "drug paraphernalia" conviction. In 1999, Mr. Elder pleaded guilty to possession of equipment or chemicals for the manufacture of dangerous drugs, in violation of Arizona Revised Statutes section 13-3407(A)(3). We will refer to Mr. Elder’s 1999 conviction as his "dangerous drug" conviction. This conviction is the focus of the present appeal. At the time that Mr. Elder pleaded guilty,1 the statute supporting the "dangerous drug" conviction was structured in the following way:
Ariz. Rev. Stat. § 13-3407(A). Section 13-3407(A) therefore criminalizes conduct related to "dangerous drug[s]" as a broad category, rather than any specific drugs.
"Dangerous drug" is further defined in Arizona Revised Statutes section 13-3401(6). Section 13-3401(6) names broad categories of drugs ("hallucinogenic substances," "stimulant[s]," "depressant[s]," and "anabolic steroids") but then defines only specific chemical compounds within those categories as "dangerous drugs." Id. § 13-3401(6)(a) (hallucinogenic substances); id. § 13-3401(6)(b) (stimulants); id. § 13-3401(6)(c) (depressants); id. § 13-3401(6)(d) (anabolic steroids). For example, the "stimulant" category is broken down into twenty-four specific chemical compounds that are "dangerous drugs," including "amphetamine
," "methamphetamine," and "phentermine." Id. § 13-3401(6)(b)(i), (xii), (xx).
Prior to Mr. Elder’s original sentencing in this case, the Government filed a motion under 21 U.S.C. § 851,2 indicating its intent to rely on the 1997 conviction for possession of drug paraphernalia and the 1999 dangerous drug conviction at sentencing as "felony drug offenses." These two convictions would qualify Mr. Elder for a mandatory life sentence under the three-strikes rule of 21 U.S.C. § 841(b)(1)(A).
Section 841 provides that any person convicted under that section is subject to a mandatory minimum sentence of ten years’ imprisonment. It further provides for a mandatory minimum sentence of either twenty years or life imprisonment for any person convicted under § 841 who has either one or two (or more) prior "felony drug offense" convictions, respectively. "Felony drug offense" is defined at 21 U.S.C. § 802(44) as "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."
Mr. Elder filed a motion to dismiss the information filed pursuant to 21 U.S.C. § 851 ; he argued that neither the drug paraphernalia conviction nor the dangerous drug conviction was a "felony drug offense" because the convictions did not "relat[e] to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances," as 21 U.S.C. § 802(44) defines "felony drug offense" for purposes of § 841. The district court disagreed and believed that § 841(b)(1)(A) required the imposition of a life sentence.
In the first of his two appeals, Mr. Elder renewed the argument made to the district court that his 1999 dangerous drug conviction was not a felony drug offense. He also raised an argument, not made to the district court, that his 1997 drug paraphernalia conviction was not a felony drug offense because it was not punishable by more than one year, a point that all parties and the district court had overlooked. Elder I , 840 F.3d at 461. The Government conceded that the drug paraphernalia conviction was not a felony drug offense and, therefore, that the district court had improperly imposed a life sentence. We held that the district court plainly erred in finding that Mr. Elder had committed two prior felony drug offenses and remanded for a full resentencing. In doing so, we addressed only the drug paraphernalia conviction and left the parties "free to address the significance of the 1999 conviction on remand." Id. at 462 n.2.
At Mr. Elder’s resentencing, the probation officer issued a revised presentence investigation report. She took the view that, even though Mr. Elder’s drug paraphernalia conviction no longer was considered a felony drug offense, his sentencing range (324 to 405 months) had not changed. However, without the 1997 drug paraphernalia conviction, his statutory mandatory minimum dropped from life imprisonment to twenty years’ imprisonment. 21 U.S.C. § 841(b)(1)(A).
For his part, Mr. Elder filed a new motion to dismiss the § 851 information based on the 1999 dangerous drug conviction. First, he argued that the Government had failed to prove that the dangerous drug conviction was a felony drug offense because it had not produced any evidence relating to the conviction.3 Second, he argued that Arizona’s definition of "dangerous drug" in section 13-3401 is broader than the categories of drugs enumerated in the definition of "felony drug offense" under § 802(44). Without a prior felony drug offense conviction that qualified under § 841(b)(1)(A), Mr. Elder’s statutory minimum would drop to ten years’ imprisonment. See § 841(b)(1)(A).
The district court rejected Mr. Elder’s objection to the § 851 information, but it did not elaborate on its reasoning other than to say that it "adopt[ed] the findings and the reasoning in the conclusion" of its original June 2015 sentencing order.4 In the June 2015 proceeding, however, the district court had addressed only Mr. Elder’s argument that his conviction did not "relate to" drugs referred to in the federal definition of felony drug offense, but did not reach Mr. Elder’s more specific arguments: that the Government had not met its burden of producing any evidence related to the 1999 dangerous drug conviction; or, in the alternative, that Arizona’s definition of "dangerous drug" is broader than the list of drugs in § 802(44) and, therefore, that the dangerous drug conviction cannot serve as a predicate offense under § 841(b)(1)(A).
The district court calculated a total offense level of 38 and a criminal history score of 8 (resulting in a criminal history category of IV). That calculation led the district court to a guidelines range of 324 to 405 months, the same range as the one employed at Mr. Elder’s first sentencing. The district court noted that, given what it viewed as one prior felony drug offense conviction (for the 1999 Arizona conviction), the "absolute minimum"...
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