United States v. Joseph Williams ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2662
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH A. WILLIAMS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:16-CR-100-JD-MGG-1 — Jon E. DeGuilio, Judge.
____________________
ARGUED JULY 9, 2019 — DECIDED JULY 23, 2019
____________________
Before KANNE, HAMILTON, and SCUDDER, Circuit Judges.
HAMILTON, Circuit Judge. Joseph Williams pleaded guilty
to possessing a gun as a felon, 18 U.S.C. § 922(g)(1), and pos-
sessing cocaine with intent to distribute, 21 U.S.C. § 841(a)(1).
He appeals only his sentence, arguing that the district court
erred by sentencing him under the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(1), based on three prior Indiana convic-
tions: burglary, robbery, and dealing cocaine. He challenges
the use of the cocaine conviction on two grounds. First, he
2 No. 18-2662
says the record does not show just which statute he was con-
victed of violating. Second, he argues that Indiana’s statute on
dealing cocaine, Ind. Code § 35-48-4-1 (2006), is broader than
the ACCA definition of a “serious drug offense.” We disagree
on both points and affirm the sentence under the ACCA.
I. Factual and Procedural Background
Police arrested Williams for selling cocaine and then
found a gun in his pocket. After he pleaded guilty to federal
firearm and cocaine charges, the government sought a sen-
tencing enhancement under 18 U.S.C. § 924(e), which applies
if the defendant has three prior convictions for violent felo-
nies or serious drug offenses on three different occasions. The
government offered evidence of Williams’ three prior convic-
tions for burglary, robbery, and dealing cocaine. For the co-
caine conviction, the government established that the State of
Indiana filed an information in 2007 charging Williams with
a Class A Felony for “Dealing Cocaine.” The information cited
Indiana Code § 35-48-4-1 and two subsections. It also alleged
that Williams knowingly or intentionally delivered cocaine
within one thousand feet of a school. Williams pleaded guilty
under a plea agreement to “the lesser included offense of
Dealing Cocaine as a Class B Felony.” The state court accepted
Williams’ plea of guilty to “the lesser included offense of
Dealing Cocaine.”
The district court concluded that Williams was an armed
career criminal under the ACCA, 18 U.S.C. § 924(e). The par-
ties agree that Williams had two prior convictions for violent
felonies. The ACCA enhancement depends on the cocaine
conviction. The court determined that Williams’ “Dealing Co-
caine” conviction qualified as a predicate “serious drug of-
fense.” The court relied on the presentence report. It said,
No. 18-2662 3
without any dispute from Williams, that the conviction for de-
livering cocaine qualified as a serious drug offense under the
ACCA. With three qualifying convictions, Williams was an
armed career criminal subject to a statutory minimum of fif-
teen years in prison. See 18 U.S.C. § 924(e)(1). The court calcu-
lated a Sentencing Guideline range of 210 to 262 months in
prison based on offense level 32 and criminal history category
VI. The judge found that this range likely overstated the seri-
ousness of Williams’ conduct and sentenced him to 188
months in prison.
II. Analysis
On appeal, Williams argues that the district court improp-
erly enhanced his guideline range because his dealing-cocaine
offense is not a predicate “serious drug offense” under the
ACCA. The statute defines a “serious drug offense” to include
crimes “involving manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled sub-
stance.” 18 U.S.C. § 924(e)(2)(A)(ii). Because Williams did not
raise this issue in the district court, we review the enhance-
ment for plain error. See Fed. R. Crim. P. 52(b); United States
v. Lynn, 851 F.3d 786, 793 (7th Cir. 2017).
Williams first contends that his conviction for dealing co-
caine is not a predicate offense because the district court did
not know which statute the Indiana court used to convict him.
He concedes that he pleaded guilty to delivering cocaine, but
he points out that the state court judgment refers only to the
“lesser included offense of Dealing Cocaine” and does not cite
a more specific statutory provision. Therefore, Williams rea-
sons, the district court plainly erred in deciding that his stat-
ute of conviction meets the definition of a “serious drug
4 No. 18-2662
offense” under the ACCA. We disagree for two independent
reasons, one legal and one factual.
First, as a matter of law, even assuming the state court doc-
uments were ambiguous, the ambiguity would not establish
plain error. Williams did not object at sentencing to the court’s
reliance on this conviction as a predicate offense. Naturally,
then, the parties did not put energy into building a thorough
record on the issue. The court was entitled to accept the un-
disputed assertion in the presentence investigation report as
a finding of fact. See United States v. Aviles-Solarzano, 623 F.3d
470, 475 (7th Cir. 2010). Even if the documents may not resolve
the issue beyond all reasonable doubt, this is plain-error re-
view. It is the appellant’s burden to show that an error actually
occurred, not merely that an error might have occurred. United
States v. Ramirez, 606 F.3d 396, 398–99 (7th Cir. 2010) (rejecting
government’s confession of error on plain-error review; in ab-
sence of objection in district court, record did not show defin-
itively whether defendant’s prior convictions qualified as
crimes of violence under Sentencing Guidelines). On appeal,
Williams points to no evidence suggesting that he was con-
victed of a crime other than § 35-48-4-1(a)(1)(C). See United
States v. Meherg, 714 F.3d 457, 459 (7th Cir. 2013) (affirming
ACCA sentence where defendant failed to come forward with
evidence that PSR description of prior conviction was wrong);
United States v. Black, 636 F.3d 893, 897 (7th Cir. 2011) (same
under career-offender guideline).
Second, as a matter of fact, the context here actually re-
moves uncertainty about the nature of the Indiana conviction.
The information charged Williams with delivering cocaine,
and it cited Indiana Code § 35-48-4-1. Under Indiana’s crimi-
nal code in effect in 2007, this statute had two subsections,
No. 18-2662 5
both of which were also cited in the information. Subsection
(a)(1)(C) defined the base crime—delivery of cocaine—as a
class B felony. Subsection (b)(3) elevated that crime to a Class
A felony if more facts were present, such as proximity to a
school, which the information also alleged. Williams’ plea of
guilty to a “lesser included ... Class B Felony” means that this
additional fact of school proximity was not applied; the crime
of conviction thus was § 35-48-4-1(a)(1)(C).
That brings us to Williams’ second argument, that even if
he was convicted under § 35-48-4-1, a conviction under it can-
not be an ACCA predicate. Asserting that the statute is “indi-
visible” for purposes of applying the categorical approach un-
der the ACCA, he argues its subsections collectively cover
more than “serious drug offenses.” He explains that another
portion of the section criminalizes a person who “finances” an
illegal drug trade. See Ind. Code § 35-48-4-1(a)(1)(D) (2006).
By contrast, he continues, the ACCA definition does not cover
financing; it covers state crimes “involving manufacturing,
distributing, or possessing with intent to manufacture or dis-
tribute, a controlled substance,” without mention of financ-
ing. See 18 U.S.C. § 924(e)(2)(A)(ii). This argument fails for
two independent reasons.
First, circuit precedent forecloses one premise of his argu-
ment—that the Indiana statute is indivisible. We held in
United States v. Smith, 921 F.3d 708, 715 (7th Cir. 2019), that
this Indiana statute is divisible—that is, it contains multiple
crimes under one heading or section. See Descamps v. United
States, 570 U.S. 254, 261–62 (2013) (explaining divisibility).
Williams admits that he was convicted of “delivering” co-
caine, not “financing” it. And the ACCA unquestionably co-
vers delivering cocaine. See Meherg, 714 F.3d at 459–60. By
6 No. 18-2662
that reasoning, the ACCA enhancement was proper under
§ 35-48-4-1(a)(1)(C).
Williams counters that Smith was decided wrongly. He
asks us to seek guidance on the divisibility of § 35-48-4-1 from
the Indiana Supreme Court, which has not addressed that is-
sue under this statute. See United States v. Franklin, 895 F.3d
954 (7th Cir. 2018) (certifying state-law issue of divisibility of
state burglary statute to state supreme court). But certification
is appropriate only when the law is indefinite or unclear. See
Village of Bedford Park v. Expedia, Inc., 876 F.3d 296, 302 (7th Cir.
2017). For the reasons we explained in Smith, the divisibility
of this Indiana statute is sufficiently clear, and much clearer
than the state-law issue that led us to certify in Franklin. More-
over, even if divisibility were unclear, as Williams contends,
he would still lose on plain-error review because only a
“plain” error could justify reversal. See Lynn, 851 F.3d at 793.
In any event, as explained in Smith, most of Indiana’s caselaw
supports treating § 35-48-4-1 as divisible. 921 F.3d at 714–15
(collecting Indiana cases). And Williams’ “disagreement with
a prior holding is an inadequate basis to overturn precedent.”
United States v. Lamon, 893 F.3d 369, 372 (7th Cir. 2018).
The second reason Williams’ challenge fails is that even if
§ 35-48-4-1 were not divisible, the entire statute does not en-
compass more conduct than the ACCA definition of “serious
drug offense.” We reached this conclusion in a non-preceden-
tial order earlier this year, United States v. Anderson, 766
F. App’x 377, 381–82 (7th Cir. 2019). We now adopt the rea-
soning and holding of that decision on the issue in this prece-
dential opinion.
As we explained in Anderson, under the ACCA, we apply
the “categorical” method that focuses only on the elements of
No. 18-2662 7
the crime of conviction, not the actual facts of the defendant’s
conviction. 766 Fed. App’x at 380, citing Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016). Under that method, if the
elements of the crime of conviction reach more broadly than
the definition of a “serious drug offense” in the ACCA, so that
it is possible to violate the underlying statute without com-
mitting 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. See
Mathis, 136 S. Ct. at 2248, citing Taylor v. United States, 495 U.S.
575, 600–01 (1990).
The principal point of dispute is the Indiana statute’s ap-
plication to financing of cocaine manufacture or delivery. The
Indiana statute under which Williams was convicted pro-
vided in 2007:
(a) A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
cocaine or a narcotic drug, or methampheta-
mine, pure or adulterated, classified in schedule
I or II; or
(2) possesses, with intent to:
(A) manufacture;
(B) finance the manufacture of;
(C) deliver; or
(D) finance the delivery of;
cocaine or a narcotic drug, or methampheta-
mine, pure or adulterated, classified in schedule
8 No. 18-2662
I or II;
commits dealing in cocaine or a narcotic drug,
or methamphetamine, a Class B felony, except
as provided in subsection (b).
Ind. Code § 35-48-4-1(a) (2006).
Williams argues that by including financing the manufac-
turing or delivery of cocaine, the Indiana statute reaches more
broadly than the ACCA definition of a serious drug crime. We
disagree.
Recall that the ACCA’s text covers crimes “involving man-
ufacturing, distributing, or possessing with intent to manu-
facture or distribute, a controlled substance.” 18 U.S.C.
§ 924(e)(2)(A)(ii). The word “involving” is broad enough to
reach the Indiana crimes of financing the manufacture or de-
livery of cocaine.
As we explained in our order in Anderson, federal courts
interpret the word “involving” as having “expansive conno-
tations.” 766 Fed. App’x at 382, quoting United States v. King,
325 F.3d 110, 113 (2d Cir. 2003). In King, the Second Circuit
ruled that the word “must be construed as extending the fo-
cus of § 924(e) beyond” the listed offenses to “encompass[ ] ...
offenses that are related to or connected with such conduct.”
325 F.3d at 113. Adopting this reasoning, other courts have
affirmed sentencing enhancements under the ACCA based on
convictions for attempt and conspiracy to manufacture, dis-
tribute or possess with the intent to distribute drugs. See
United States v. Coleman, 700 F.3d 329, 339 (8th Cir. 2012) (at-
tempt); United States v. Williams, 488 F.3d 1004, 1009 (D.C. Cir.
2007) (attempt); United States v. McKenney, 450 F.3d 39, 43–45
No. 18-2662 9
(1st Cir. 2006) (conspiracy); United States v. Winbush, 407 F.3d
703, 707–08 (5th Cir. 2005) (attempt); King, 325 F.3d at 114–15
(attempt). The Third Circuit adopted a similarly expansive
definition of “involving” in United States v. Gibbs, 656 F.3d 180
(3d Cir. 2011), finding that a Delaware conviction for wearing
body armor while committing a felony “involve[d]” a serious
drug offense where the underlying felony was manufactur-
ing, distributing, or possessing with the intent to distribute
drugs. Id. at 184–85, 188.
Williams argues that Indiana courts have interpreted the
“financing” language to apply to a defendant’s purchase of
drugs for his own personal use. The Indiana Court of Appeals
persuasively rejected that broad reading in Hyche v. State, 934
N.E.2d 1176, 1179 (Ind. App. 2010), explaining that the term
“is commonly construed as applying to one who acts as a
creditor or an investor and not one who merely acts as a pur-
chaser.” In Hyche, the defendant had been convicted of felony
murder in a drug deal in which he was trying to buy ecstasy
for his personal use. The state court reversed his conviction
because he had not been “financing” the purchase with his
own money for his own use. The defendant had acted “merely
as a purchaser and not as a creditor or an investor,” and “he
could no more be deemed to be financing the delivery of ec-
stasy than a grocery shopper could be deemed to be financing
the supermarket’s inventory.” Id. at 1180.
To counter Hyche, Williams cites two Indiana appellate
cases that he contends ruled differently. In Kibler v. State, 904
N.E.2d 730 (Ind. App. 2009) (non-precedential), the court va-
cated a conviction for dealing in heroin on double jeopardy
grounds but based its conclusion on the unexplained and un-
justified theory that the defendant had “financed” his own
10 No. 18-2662
purchase of heroin for his own use. In Vausha v. State, No.
13A01-0607-CR-280, 2007 WL 2595427 (Ind. App. 2007) (non-
precedential), the defendant and her husband had teamed up
to sell methamphetamine to a neighbor who was cooperating
with the police, and the defendant had participated in negoti-
ating the price of the sale.
These cases do not convince us that the Indiana statute ac-
tually reaches activity that would not be a serious drug of-
fense under the federal ACCA. Both are non-precedential,
and both predate Hyche, which is precedential and well-rea-
soned. Also, Vausha was not even a personal-use case. The de-
fendant there financed drug dealing in part by buying “600
cold pills” to make more than three grams of methampheta-
mine that she then tried to sell. 2007 WL 2595427, at *5.
Hyche provides the most authoritative guidance on the
scope of the Indiana crimes of “financing” the manufacture
and delivery of cocaine. That scope falls within the federal
definition of a serious drug offense under the ACCA.
The judgment of the district court is AFFIRMED.