United States v. Turner
| Decision Date | 25 August 2022 |
| Docket Number | 21-2309 |
| Parties | United States of America, Plaintiff-Appellee, v. Danny Turner, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
ARGUED APRIL 8, 2022
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:20-cr-00038-jdp-1 - James D Peterson, Chief Judge.
Before WOOD, HAMILTON, and JACKSON-AKIWUMI, Circuit Judges.
This appeal presents a new variation on the familiar "categorical approach" to a defendant's prior criminal convictions under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The question is whether a categorical mismatch between a state criminal statute and the federal recidivist statute can be based on physically impossible conduct. Defendant Danny Turner was sentenced under the ACCA based in part on two prior convictions under a Wisconsin drug trafficking statute. He contends that the Wisconsin statute sweeps more broadly than the definition of a "serious drug offense" under the ACCA because the state law makes it a crime to deal in substances that the federal law does not reach. The evidence before the district court shows, however, that the supposed overbreadth concerns only substances that, as a matter of chemistry, do not exist and cannot possibly exist.
Like the Ninth Circuit in a similar case, "we opt for scientific reality over abstract legal doctrine." United States v. Rodriguez-Gamboa, 972 F.3d 1148 1150 (9th Cir. 2020). Under the ACCA, a categorical mismatch cannot be based on truly impossible conduct. Wisconsin's drug statute does not expand the scope of conduct actually treated as criminal beyond the definition in the ACCA despite superficial textual differences. We therefore affirm Turner's sentence as an armed career criminal.
Defendant Turner was arrested after making four sales of cocaine and one sale of heroin to an undercover police officer. The arresting officers found a loaded handgun in Turner's waistband. A federal grand jury indicted Turner on eight counts: six counts for distributing and possessing controlled substances in violation of 21 U.S.C. § 841(a)(1); one for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and one for possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). At trial, Turner was convicted on all eight counts.
Turner's conviction for being a felon in possession of a firearm would ordinarily carry a maximum sentence of ten years. See § 924(a)(2). The district court found, however, that Turner qualified as an armed career criminal under the ACCA, so he faced a mandatory minimum sentence of fifteen years and a maximum of life in prison. See § 924(e)(1). A defendant meets that classification if his "prior criminal record includes at least three convictions for 'serious drug offense[s]' or 'violent felon[ies].'" Shular v. United States, 140 S.Ct. 779, 783 (2020) (alterations in original), quoting § 924(e)(1). The ACCA defines a "serious drug offense" to include an offense under state law "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance [as defined in 21 U.S.C. § 802], for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).
To determine whether a prior conviction qualifies as a serious drug offense or a violent felony under the ACCA, courts apply what is known as the "categorical approach," which stems from Taylor v. United States, 495 U.S. 575 (1990). See Johnson v. United States, 24 F.4th 1110, 1116 (7th Cir. 2022). The categorical approach "focuses only on the elements of the crime of conviction, not the actual facts of the defendant's conviction." United States v. Williams, 931 F.3d 570, 575 (7th Cir. 2019). If the elements of the crime of conviction sweep more broadly than the definition of a "serious drug offense" in the ACCA, "so that it is possible to violate the underlying statute without committing a 'serious drug offense' within the meaning of the ACCA, then a conviction under the statute cannot serve as a predicate 'serious drug offense' under the ACCA." Id. (emphasis added).
Before sentencing in this case, the presentence report recommended that Turner be deemed an armed career criminal under § 924(e) based on three prior drug convictions: two state convictions related to trafficking cocaine and one federal conviction for distributing crack cocaine. See Wis.Stat. §§ 961.41(1)(cm)1 &(1m)(cm)1 (1997-98); 21 U.S.C. § 841(a)(1). Turner objected. He asserted that the state convictions could not qualify as predicate offenses because the Wisconsin drug statute is categorically broader than the ACCA's definition of a "serious drug offense."
Turner identified two apparent mismatches between the ACCA definition and the Wisconsin drug laws under which he was convicted. The Wisconsin statute extends to dealing in (1) narcotic analogs of cocaine and (2) esters and salts of esters of cocaine. The government acknowledged the apparent textual mismatches, but it argued the mismatches were "in name only" because the allegedly overbroad conduct is factually impossible. Relying on two declarations from expert chemists, the government explained that it is chemically impossible for cocaine to have a "narcotic" effect and impossible to create an ester or a salt of an ester of cocaine. Also, one of the government's experts testified in his declaration that a "narcotic effect" is a type of "depressant effect." If that is correct, then even if cocaine could have a narcotic effect, federal law would still apply to trafficking in it since federal law covers cocaine analogs with depressant effects. See 21 U.S.C. § 802(32). The government argued that the state statute's nominal inclusion of narcotic analogs and esters of cocaine thus did not actually broaden the scope of prohibited conduct beyond the scope of the ACCA definition of a serious drug offense.[1]
Our case law has expressly left the door open to just these sorts of arguments of factual impossibility under the categorical approach. See United States v. Ruth, 966 F.3d 642, 648 (7th Cir. 2020) (); see also United States v. De La Torre, 940 F.3d 938, 952 n.5 (7th Cir. 2019) (). The government relied on this point in Ruth in making its arguments in the district court.
Turner responded by twice asking for time to consult an expert in hopes of refuting the government's experts in an evidentiary hearing. The district court granted both of his extension requests and scheduled a hearing. Two months after his first request, though, Turner changed course. He told the district court that he did not plan to call witnesses or present evidence related to factual impossibility. The parties then filed a joint motion to vacate the evidentiary hearing, which the court granted.
In a written opinion prior to sentencing, the district court overruled Turner's objection to his classification as an armed career criminal. Relying on the unrebutted testimony from the government's experts, the court found that esters of cocaine and narcotic analogs of cocaine simply do not exist. The court also found that even if a narcotic analog of cocaine could exist, the ACCA definition of a serious drug offense would reach it under the Controlled Substances Act, 21 U.S.C. § 802, because a narcotic effect is a type of depressant effect. Because the two apparent mismatches did not actually expand the scope of criminalized conduct under state law beyond the ACCA definition, Turner's state convictions qualified as serious drug offenses under the ACCA. The district court then imposed a total sentence of 20 years for Turner's convictions. Turner has appealed.[2]
We review de novo the district court's legal determination that Turner had three prior serious drug offenses and therefore qualified as an armed career criminal. United States v. Lockett, 782 F.3d 349, 352 (7th Cir. 2015). The district court's factual findings related to esters and narcotic analogs of cocaine are subject to review for clear error, id., though the evidence before the court was not disputed.
Turner's two prior state drug convictions were under Wisconsin Statutes §§ 961.41(1)(cm)1 &(1m)(cm)1.[3] As explained we apply the categorical approach here, focusing only on the elements of the Wisconsin drug law-not the actual facts of Turner's prior convictions-to determine if those elements sweep more broadly than the definition of a "serious drug offense" in the ACCA. Williams, 931 F.3d at 575. Turner identifies two apparent textual mismatches between that statute and the ACCA definition: (1) narcotic analogs of cocaine and (2) esters and salts of esters of cocaine. Factual impossibility is dispositive for only one of those apparent mismatches.[4] We proceed as follows. First, we analyze the apparent textual mismatches between the Wisconsin drug statute and the ACCA's definition of a serious drug offense. We conclude that the district court's factual findings related to narcotic analogs and esters of cocaine were not clearly erroneous. Then, we turn to factual impossibility under the categorical approach. We conclude that categorical mismatches cannot be based on impossible conduct. Finally, we deny Turner's alternative request that we order a limited remand for an evidentiary hearing in...
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