United States v. Garcia

• Decision Date: 22 January 2020
• Docket Number: Nos. 18-1890 & 18-2261,s. 18-1890 & 18-2261
• Citation: 948 F.3d 789
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Trinidad GARCIA, Jr., and Alfonso Pineda-Hernandez, also known as Flaco, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

948 F.3d 789

UNITED STATES of America, Plaintiff-Appellee,

v.Jose Trinidad GARCIA, Jr., and Alfonso Pineda-Hernandez, also known as Flaco, Defendants-Appellants.

Nos. 18-1890 & 18-2261

United States Court of Appeals, Seventh Circuit.

Argued September 20, 2019

Decided January 22, 2020

Matthew J. Lasher, Bob Wood, Attorneys, Joe H. Vaughn, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN, for Plaintiff - Appellee.

Peter W. Henderson, Thomas W. Patton, Attorneys, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Urbana, IL, for Defendant - Appellant JOSE TRINIDAD GARCIA, JR.

Brian James Paul, Attorney, FAEGRE BAKER DANIELS LLP, Indianapolis, IN, Andrew Ball, Kyle Hosmer, Attorneys, FAEGRE BAKER DANIELS LLP, Denver, CO, for Defendant - Appellant ALFONSO PINEDA-HERNANDEZ.

Before Wood, Chief Judge, and Manion and Rovner, Circuit Judges.

Manion, Circuit Judge.

Police found over 80 grams of red methamphetamine in a car. The ensuing investigation—dubbed "Code Red"—lead to the indictment of 12 people for a drug-distribution conspiracy. Eleven, including Garcia, pleaded guilty. Garcia argues the judge improperly enhanced his sentence based on a prior drug conviction. We agree with Garcia. Pineda-Hernandez alone stood trial. He claims multiple errors involving an alleged language-interpretation debacle. He also argues the judge improperly augmented his sentence based on his role. We disagree with Pineda-Hernandez.

I. GARCIA

Pleading guilty, Garcia admitted he participated in or could have reasonably foreseen the distribution of about 3.5 kilograms of a mixture containing meth and at least 1 kilo-gram of heroin. As he admitted the conspiracy involved over 500 grams of a mixture containing meth, he faced a statutory range of 10 years to life in prison with no prior conviction for a "felony drug offense." 21 U.S.C. § 841(b)(1)(A)(viii).¹ But he faced a range of 20 years to life with one prior conviction for a "felony drug offense." Id. The government sought the 20-year minimum based on Garcia’s conviction under Indiana Code § 35-48-4-10(a)(1) for an offense that occurred in March 2014. At that time, Indiana banned manufacturing or delivering "marijuana, hash oil, hashish, or salvia." (The crime was a felony because the recipient or intended recipient was under 18. I.C. 35-48-4-10(b)(1)(A).) The district judge imposed the 20-year mandatory minimum. Garcia appeals.

He concedes plain-error review applies as he failed to object below. But he argues the judge plainly erred by treating the prior conviction as a "felony drug offense" to enhance the sentence. Under plain-error review, Garcia must show "(1) an error occurred, (2) the error was plain, (3) it affected the defendant’s substantial rights, and (4) it seriously affected the fairness, integrity, or public reputation of the proceedings." United States v. Pierson , 925 F.3d 913, 919 (7th Cir. 2019).

When Garcia committed the prior drug offense, Indiana’s statute prohibited dealing in marijuana, hash oil, hashish, or salvia. Here is the text of the statute, arranged in columns:

(a) A person who:

(1) knowingly or intentionally:

(A) manufactures;

(B) finances the manufacture of;

(C) delivers; or

(D) finances the delivery of;

marijuana, hash oil, hashish, or salvia, pure or adulterated ...

commits dealing in marijuana, hash oil, hashish, or salvia, a Class A misdemeanor, except ...

(b) The offense is:

(1) a Class D felony if:

(A) the recipient or intended recipient is under eighteen (18) years of age ....

I.C. 35-48-4-10.

The question is whether Garcia’s prior conviction under this statute is a "felony drug offense" for purposes of the enhancement for his federal crime. Federal law defined "felony drug offense" 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.

21 U.S.C. § 802(44). Federal law also defined these particular substances. "Narcotic drug" generally includes opium, opiates, poppy straw, coca leaves, cocaine, ecgonine, and any compound containing any of these substances. Id. § 802(17). "Marihuana" generally means all parts of Cannabis sativa L. and every compound of this plant. Id. § 802(16). "Anabolic steroid" generally means any drug or hormonal substance related to testosterone

. Id. § 802(41)(A).

"Depressant or stimulant substance" generally means a drug containing barbituric acid or amphetamine

, or lysergic acid diethylamide, or any drug containing a substance the Attorney General designated as having a potential for abuse because of its depressant, stimulant, or hallucinogenic effect. Id. § 802(9). (Foreshadowing: "felony drug offense" includes marijuana but not salvia.)

Courts use the categorical approach to determine whether a conviction under a state statute meets § 802(44) ’s definition of "felony drug offense." United States v. Elder , 900 F.3d 491, 497–501 (7th Cir. 2018). "The categorical approach focuses solely on whether the elements of the crime of conviction sufficiently match the elements of the crime referenced in the federal statute, while ignoring the particular facts of the case." Id. at 498 (internal quotation marks and brackets removed) (quoting Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) ). Under the categorical approach, Garcia’s appeal is easy. The problem for the government is salvia. The Indiana statute plainly prohibits it, but the federal definition of "felony drug offense" plainly does not include it. So the Indiana statute is broader than the federal definition. Indiana may convict a person for violating I.C. 35-48-4-10 even though he never dealt with a drug listed in the federal definition. Thus, under the categorical approach, a conviction under I.C. 35-48-4-10 is not a "felony drug offense" and cannot raise the mandatory minimum sentence for Garcia’s instant federal crime.

The government concedes Indiana’s statute includes salvia and concedes the federal definition of "felony drug offense" does not. The government essentially concedes I.C. 35-48-4-10 is overbroad under the categorical approach. But the government argues I.C. 35-48-4-10 is divisible, so the modified categorical approach applies. When a statute sets out alternative elements rather than merely alternative means, it is divisible, and courts use the modified categorical approach to determine which division formed the basis of the conviction. Here, if the statute’s list of drugs is a list of alternative elements rather than alternative means, then we would apply the modified categorical approach to determine which of the listed drugs supported Garcia’s prior conviction. If that drug were marijuana, then the prior conviction is a "felony drug offense" enhancing the present sentence. If that drug were salvia, then the prior conviction is not a "felony drug offense" and does not enhance the present sentence.

So the ultimate question is whether Indiana’s statute is divisible. Federal courts defer to state courts on the issue of whether a state statute is divisible. Mathis , 136 S. Ct. at 2256 ("This threshold inquiry—elements or means?—is easy in this case, as it will be in many others. Here, a state court decision definitively answers the question ...."). A state supreme court decision on point generally controls. But reliance on a state intermediate court decision is appropriate in the absence of a decision from the State’s highest court or a compelling reason to think the highest court would disagree with the intermediate decision. Mathis itself does not require a federal court to look only to the decisions of the State’s highest court. Indeed, we recently looked to an Indiana Court of Appeals decision for the "most authoritative guidance" regarding the scope of particular Indiana drug crimes for purposes of determining whether that scope fell within the Armed Career Criminal Act’s definition of a "serious drug offense." United States v. Williams , 931 F.3d 570, 576 (7th Cir. 2019) (discussing Hyche v. State , 934 N.E.2d 1176, 1179 (Ind. Ct. App. 2010) ).

Here, decisions by Indiana’s Supreme Court and Court of Appeals show the statute is not divisible. See Duncan v. State , 274 Ind. 457, 412 N.E.2d 770, 775–76 (1980) ; Everroad v. State , 570 N.E.2d 38, 54 (Ind. Ct. App. 1991), rev’d in part but summarily aff’d in relevant part , 590 N.E.2d 567, 571 (Ind. 1992) ; Martin v. State , 176 Ind.App. 99, 374 N.E.2d 543, 545 (1978). The Indiana Court of Appeals decision in Everroad is particularly instructive. The court applied Indiana Supreme Court precedent to an older version of I.C. 35-48-4-10. Indiana charged defendants with two counts under I.C. 35-48-4-10 based on a single occurrence: one for marijuana, one for hashish. On appeal, defendants argued they could only be convicted of one count under this statute even though two drugs itemized in the statute were involved. The intermediate court applied Duncan and concluded possessing marijuana and hashish is only one violation of I.C. 35-48-4-10. Defendants could not be convicted of separate counts for marijuana and hashish based on the same occurrence.

The intermediate decision in Everroad is currently the authoritative resolution of this issue by an Indiana court. Indiana’s Supreme Court has not directly addressed this issue, although its decision in Duncan supported the intermediate decision in Everroad ,² which is clear and unambiguous. Possessing marijuana and hashish is only one violation of I.C. 35-48-4-10. Salvia stands on equal statutory footing.

Thus, the list of drugs in Indiana’s statute lists alternative means of committing a single offense. So the modified categorical approach does not apply. "Marijuana, hash oil, hashish, or salvia" are not alternative elements for alternative crimes. Rather, they are alternative means of committing a single crime. Therefore, under the...