United States v. Ruth, No. 20-1034

• Decision Date: 20 July 2020
• Docket Number: No. 20-1034
• Citation: 966 F.3d 642
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel RUTH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

966 F.3d 642

UNITED STATES of America, Plaintiff-Appellee,

v.Nathaniel RUTH, Defendant-Appellant.

No. 20-1034

United States Court of Appeals, Seventh Circuit.

Argued June 3, 2020

Decided July 20, 2020

Katherine Virginia Boyle, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff - Appellee

Johanes Maliza, Attorney, Office of the Federal Public Defender, Springfield, IL, for Defendant - Appellant

Before Sykes, Chief Judge, and Bauer and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

In what is becoming an all-too-familiar subject, this appeal raises a question about whether a state drug statute sweeps more broadly than its federal counterpart because the former includes a particular isomer of a substance that the latter does not. Nathaniel Ruth pleaded guilty to federal gun and drug charges and received an enhanced sentence due to his prior Illinois conviction for possession with intent to deliver cocaine. The Illinois statute defines cocaine to include its positional isomers, whereas the federal definition covers only cocaine’s optical and geometric isomers. Ruth now appeals and claims that the district court erred in sentencing him because, using the categorical approach, the overbreadth of the Illinois statute disqualifies his prior conviction as a predicate felony drug offense. We agree and therefore vacate Ruth’s sentence and remand for resentencing.

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 18 U.S.C. § 922(g)(1), and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The government then filed an information pursuant to 21 U.S.C. § 851 notifying Ruth that it intended to rely on a prior conviction as a predicate felony drug offense to enhance his sentence. Namely, the government intended to use a 2006 Illinois conviction for possession of a controlled substance with intent to distribute, 720 ILCS 570/401(c)(2). The § 851 enhancement increased the statutory maximum sentence from twenty years in prison to thirty years. See 21 U.S.C. § 841(b)(1)(C). Ruth did not object to the government’s § 851 notice.

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 U.S.S.G. § 4B1.1. One of the prior convictions was the 2006 Illinois cocaine conviction noted above and subject of the § 851 enhancement, and the second was a 2010 Illinois conviction for possession with intent to deliver cannabis. Ruth’s resulting Guidelines range was 188 to 235 months’ imprisonment.

Ruth objected to his classification as a career offender. He argued that his 2006 Illinois conviction was not a "controlled substance offense" under U.S.S.G. §§ 4B1.1(a) and 4B1.2(b) because the Illinois statute he was convicted under, 720 ILCS 570/401(c)(2), is categorically broader than federal law and thus could not serve as a predicate felony controlled substance offense. Specifically, the Illinois statute prohibits possession of positional isomers of cocaine whereas the federal Controlled Substances Act does not. He similarly argued that the Illinois statute’s definition of cocaine "analog" was categorically broader than the federal definition of a controlled substance "analogue." Despite his objections to the career offender designation, Ruth did not object to the § 851 sentencing enhancement based on the same 2006 Illinois conviction.

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." U.S.S.G. § 4B1.2(b) (emphasis added). The government also disputed Ruth’s arguments as to the Illinois statute’s divisibility and categorical breadth.

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 21 U.S.C. § 851 sentencing enhancement because his 2006 Illinois conviction does not qualify as a prior "felony drug offense." And second, Ruth contends that the 2006 Illinois conviction is not a "controlled substance offense" under the Sentencing Guidelines and thus the court erroneously sentenced him as a career offender. As to both, his argument is principally the same: the Illinois statute is categorically broader than federal law. Though Ruth is ultimately correct that the Illinois statute is broader and thus he is entitled to be resentenced without the § 851 enhancement, he is wrong that this conclusion applies equally to his Guidelines challenge to the career offender enhancement.

A. Predicate Felony Drug Offense

Before sentencing, the government filed an information pursuant to 21 U.S.C. § 851 notifying Ruth of its intent to rely on his prior 2006 Illinois cocaine conviction as a qualifying predicate "felony drug offense" to enhance his sentence. Ruth did not object to the § 851 enhancement in the district court and thus forfeited the argument. Our review is for plain error only. Fed R. Crim. P. 52(b).

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. 21 U.S.C. § 841(b)(1)(C). As used in the Controlled Substances Act, 21 U.S.C. § 801 et seq. , the term "felony drug offense" means:

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) ; cf. Burgess v. United States , 553 U.S. 124, 126, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) ("The term ‘felony drug offense’ contained in § 841(b)(1)(A) [ ] ... is defined exclusively by § 802(44)...."). Each of the four categories of covered drugs is also separately defined in § 802. See 21 U.S.C. § 802(17) (defining "narcotic drugs"); id . § 802(16) (defining "marihuana"); id . § 802(41)(A) (defining "anabolic steroid"); id . § 802(9) (defining "depressant or stimulant substance"). Relevant to this appeal, cocaine is a narcotic drug defined in § 802(17)(D), and is listed in the schedules of federally controlled substances at schedule II(a)(4), id . § 812.

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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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 , ––– U.S. ––––, 140 S. Ct. 779, 206 L.Ed.2d 81 (2020). There are "two categorical methodologies," depending on the statute at issue. Id . at 783, 140 S.Ct. 779. 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 , ––– U.S. ––––, 136 S. Ct. 2243, 2247, 195 L.Ed.2d 604 (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...