United States v. Fernando Godinez ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1215
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERNANDO GODINEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cr-00554-2 — Jorge L. Alonso, Judge.
____________________
ARGUED DECEMBER 4, 2019 — DECIDED APRIL 9, 2020
____________________
Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
RIPPLE, Circuit Judge. Fernando Godinez pleaded guilty to
conspiracy to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and to possession of a firearm in fur-
therance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). The Government filed an information under
21 U.S.C. § 851, advising the district court that Mr. Godinez
had a prior Ohio conviction for possession of cocaine. The
district court determined that this prior state conviction
2 No. 19-1215
made Mr. Godinez eligible for a mandatory minimum sen-
tence of ten years’ imprisonment rather than the otherwise
applicable five-year mandatory minimum. See 21 U.S.C.
§ 841(b)(1)(B) (2010).
Mr. Godinez now submits that, at the time of sentencing,
the district court—and both parties—misapprehended the
legal consequences of the Government’s filing the § 851 in-
formation. Specifically, he submits that the First Step Act of
2018, Pub. L. 115-391, 132 Stat. 5194 (the “First Step Act”),
enacted after the signing of Mr. Godinez’s plea agreement
but before his sentencing, rendered invalid both the infor-
mation and the increased penalties it carried. In his view, the
district court should not have characterized his previous
Ohio conviction as a conviction for “possession with intent
to distribute” cocaine, the qualifying requirement for the
ten-year mandatory minimum. Therefore, Mr. Godinez
submits, he is not subject to the higher mandatory mini-
mum.
Mr. Godinez is correct. By failing to recognize the chang-
es implemented by the First Step Act, the district court
premised its sentencing calculations on a mandatory mini-
mum that was twice what it should have been. This over-
sight constitutes plain error and requires that Mr. Godinez
be resentenced. Accordingly, we vacate the judgment of the
district court and remand the case to the district court for
sentencing.
I.
BACKGROUND
In 2016, federal agents arrested Mr. Godinez and his
brother Adan Godinez (“Adan”) during a controlled drug
No. 19-1215 3
purchase. The brothers previously had arranged to sell ap-
proximately two kilograms of cocaine to an undercover of-
ficer in a mall parking lot. At the scene, both brothers were
armed; Mr. Godinez also came prepared with extra ammuni-
tion. When law enforcement officers surrounded
Mr. Godinez, he surrendered without resistance. Adan, who
was in a separate car, did not. He exchanged fire with the
officers and was wounded before his apprehension.
Mr. Godinez pleaded guilty to one count of conspiracy to
distribute cocaine, a violation of 21 U.S.C. §§ 841(a)(1) and
846 (“Count One”), and one count of possession of a firearm
in furtherance of a drug trafficking crime, a violation of 18
U.S.C. § 924(c)(1)(A)(i). 1 Under Count One, he faced a man-
datory minimum of five years’ imprisonment and a maxi-
2
mum of forty years’ imprisonment. At the time of the plea
agreement, a prior conviction for a “felony drug offense”
triggered increased penalties under § 841(b)(1)(B). A “felony
drug offense” is defined 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).
1 R.96 at 2–3.
2 21 U.S.C. § 841(b)(1)(B). Mr. Godinez pleaded guilty to a violation of 21
U.S.C. § 846, which directs a sentencing court to penalties outlined else-
where, in this case, § 841. Section 846 provides, “Any person who at-
tempts or conspires to commit any offense defined in this subchapter
shall be subject to the same penalties as those prescribed for the offense,
the commission of which was the object of the attempt or conspiracy.”
4 No. 19-1215
On October 20, 2017, the Government filed an infor-
mation under 21 U.S.C. § 851, notifying the district court that
Mr. Godinez had a prior conviction for possession of co-
caine, imposed by an Ohio court in 2008 (the “Ohio convic-
tion”). In the plea agreement, Mr. Godinez had acknowl-
edged the prior Ohio conviction as well as a prior conviction
for possession of a firearm by a fugitive.3
On January 16, 2019, the district court imposed a total
sentence of 204 months’ imprisonment. That sentence in-
cluded a sentence of 144 months’ imprisonment for Count
One, conspiracy to distribute cocaine. In crafting this Count
One sentence, the district court, believing that the Ohio con-
viction rendered Mr. Godinez eligible for a ten-year manda-
tory minimum instead of a five-year minimum sentence,
used that higher mandatory minimum as its starting point.
The court also determined that an upward variance was ap-
propriate based on Mr. Godinez’s carrying extra ammuni-
tion, the similarity of his past criminality to the present epi-
sode, his recent removal from the United States, and the like-
lihood of future illegal reentry.4 Mr. Godinez did not object
at sentencing to the presentence report or to the accuracy of
the statements made at sentencing.
II.
DISCUSSION
Mr. Godinez submits that the district court misappre-
hended the governing law and, consequently, mischaracter-
3 R.96 at 9–10.
4 R.167 at 44.
No. 19-1215 5
ized the nature of his previous Ohio conviction. In his view,
the sentencing court erred when it determined that the Ohio
conviction for possession of cocaine triggered the increased
ten-year mandatory minimum under 21 U.S.C.
§ 841(b)(1)(B).
Because Mr. Godinez did not object at sentencing, we re-
view for plain error. United States v. Taylor, 909 F.3d 889, 893
(7th Cir. 2018). To grant relief under the plain error doctrine,
we must determine that there was an error, that it is “clear”
or “obvious,” and that it affected the defendant’s substantial
rights. United States v. Olano, 507 U.S. 725, 732–34 (1993); Tay-
lor, 909 F.3d at 893. If these conditions are met, we can exer-
cise our discretion to remedy the error “if the error ‘seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Olano, 507 U.S. at 736 (alteration in original)
(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
A.
We begin with an examination of the statutory scheme
governing sentencing in this case. The basic statute, 21
U.S.C. § 841, is the starting point of our analysis. It imposes a
five-year mandatory minimum for offenses such as Count
One, conspiracy to distribute cocaine. Before the passage of
the First Step Act, that five-year mandatory minimum be-
came a ten-year minimum when a defendant had a prior
5
conviction for a “felony drug offense.” 21 U.S.C.
§ 841(b)(1)(B) (2010).
5 A “felony drug offense” is defined 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
(continued … )
6 No. 19-1215
The First Step Act amended this statute. Among other
things, the Act effected sentencing reform by modifying the
penalties for certain federal offenses, including
Mr. Godinez’s crime of conviction. More precisely, the Act
narrowed the category of offenses that triggered the higher
6
ten-year mandatory minimum. Now, a prior conviction
must be a “serious drug felony”—not a felony drug offense—to
increase the mandatory minimum under § 841(b)(1)(B).
The First Step Act does not define the term “serious drug
felony.” Instead, it points to 18 U.S.C. § 924(e)(2) of the
7
Armed Career Criminal Act (“the ACCA”). That section de-
fines a “serious drug offense” as
( … continued)
to narcotic drugs, marihuana, anabolic steroids, or depressant or stimu-
lant substances.” 21 U.S.C. § 802(44).
6 Section 401(a)(2)(B) of the First Step Act provides,
(a) The Controlled Substances Act (21 U.S.C. 801 et seq.)
is amended—
...
(B) in subparagraph (B), in the matter following clause
(viii), by striking “If any person commits such a viola-
tion after a prior conviction for a felony drug offense has
become final” and inserting the following: “If any per-
son commits such a violation after a prior conviction for
a serious drug felony or serious violent felony has become
final”.
First Step Act of 2018, Pub. L. 115-391, § 401(a)(2)(B), 132 Stat. 5194 (em-
phasis added).
7 Section 401(a)(1) of the First Step Act reads,
(continued … )
No. 19-1215 7
(i) an offense under the Controlled Substances
Act (21 U.S.C. 801 et seq.), the Controlled Sub-
stances Import and Export Act (21 U.S.C. 951 et
seq.), or chapter 705 of title 46 for which a max-
imum term of imprisonment of ten years or
more is prescribed by law; or
(ii) an offense under State law, involving man-
ufacturing, distributing, or possessing with in-
tent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Con-
trolled Substances Act (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). Because Mr. Godinez’s prior convic-
tion for possession was an offense under state law, it is a
“serious drug offense” under § 924(e)(2) only if it meets the
requirements of subsection (ii) concerning state law offenses.
In short, a ten-year mandatory minimum is only permissible
if the Ohio conviction is an offense “involving manufactur-
( … continued)
The term “serious drug felony” means an offense de-
scribed in section 924(e)(2) of title 18, United States
Code, for which—
(A) the offender served a term of imprisonment of more
than 12 months; and
(B) the offender’s release from any term of imprison-
ment was within 15 years of the commencement of the
instant offense.
§ 401(a)(1), 132 Stat. 5194.
8 No. 19-1215
ing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance ... .” Id. § 924(e)(2)(A)(ii).
Congress enacted the First Step Act after Mr. Godinez en-
tered his plea, but it was effective before he was sentenced.
By the Act’s own terms, the provisions relevant to
Mr. Godinez “shall apply to any offense that was committed
before the date of enactment of this Act, if a sentence … has
8
not been imposed as of such date of enactment.”
B.
The parties present different perspectives on how this
provision of the First Step Act ought to apply to
Mr. Godinez’s situation.
The Government agrees that the First Step Act applies to
Mr. Godinez. It nevertheless maintains that his offense is a
“serious drug offense” within the meaning of
§ 924(e)(2)(A)(ii). In its view, even though Mr. Godinez’s
Ohio conviction is for possession of cocaine, it is, for purposes
of federal sentencing, an offense “involving … possessing
with intent to … distribute, a controlled substance” and
therefore a “serious drug offense” deserving of the manda-
tory ten-year minimum. Relying on our cases interpreting
the ACCA, it submits that the Ohio conviction need not in-
clude the formal element of “intent to … distribute” to be
considered an offense “involving” “intent to … distribute.”
Rather, the Government continues, the word “involving” in
§ 924(e)(2)(A)(ii) extends more broadly and includes the vio-
8 First Step Act § 401(c).
No. 19-1215 9
lation of a statute that prohibits the possession of a large
quantity of drugs.
There is some force, at least at first glance, to the Gov-
ernment’s analysis. We agree that Congress, by employing
the term “involving,” intended to cover more offenses than
those that explicitly have as an element manufacturing, dis-
tributing, or possessing with intent to distribute. An offense
“involving” specified conduct is an offense that necessarily
entails that conduct. Shular v. United States, 140 S. Ct. 779,
784–85 (2020) (indicating that § 924(e)(2)(A)(ii) refers to of-
fenses that necessarily require certain conduct); Kawashima v.
Holder, 565 U.S. 478, 483–84 (2012) (concluding that a statute
referencing offenses that “involve” fraud or deceit refers to
“offenses with elements that necessarily entail fraudulent or
deceitful conduct”). Indeed, we have construed the term
“involving” to carry “expansive connotations.” United States
v. Williams, 931 F.3d 570, 575 (7th Cir. 2019) (internal quota-
9
tion marks omitted). Notably, the language of a parallel
provision in the same statute supports this interpretation.
Section 924(e)(2) defines the terms “serious drug offense”
and “violent felony.” While a “serious drug offense” under
state law is defined as an offense “involving manufacturing,
distributing, or possessing with intent to manufacture or dis-
9 In United States v. Williams, 931 F.3d 570, 576 (7th Cir. 2019), we con-
cluded that the Indiana offense of financing the manufacture or delivery
of cocaine was a “serious drug offense” because Indiana courts had in-
terpreted the language of the statute to exclude individuals purchasing
the drugs for personal use. Therefore, the Indiana statute reached only
activity that would be a “serious drug offense under the federal ACCA.”
Id.
10 No. 19-1215
tribute, a controlled substance,” a “violent felony” is defined
in relevant part as a crime “involving the use or carrying of a
firearm, knife, or destructive device” that “has as an element
the use, attempted use, or threatened use of physical force
against the person of another.” 18 U.S.C. § 924(e)(2)(A)–(B)
10
(emphasis added). “[W]here Congress includes particular
10 Section 924(e)(2)(A)–(B) reads in full,
(2) As used in this subsection—
(A) the term “serious drug offense” means—
(i) an offense under the Controlled Substances Act
(21 U.S.C. 801 et seq.), the Controlled Substances
Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46 for which a maximum term of
imprisonment of ten years or more is prescribed by
law; or
(ii) an offense under State law, involving manufac-
turing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance (as
defined in section 102 of the Controlled Substances
Act (21 U.S.C. 802)), for which a maximum term of
imprisonment of ten years or more is prescribed by
law;
(B) the term “violent felony” means any crime punisha-
ble by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or car-
rying of a firearm, knife, or destructive device that
would be punishable by imprisonment for such term if
committed by an adult, that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(continued … )
No. 19-1215 11
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Con-
gress acts intentionally and purposely in the disparate inclu-
sion or exclusion.” Russello v. United States, 464 U.S. 16, 23
(1983) (alteration in original) (internal quotation marks omit-
ted).
The Supreme Court in Kawashima concluded, in the con-
text of an immigration statute, that the term “involving”
swept more broadly than “has as an element.” 565 U.S. at
483–84 (reasoning that although fraud and deceit “are not
themselves formal elements of the crime, … [t]he scope of
that clause is not limited to offenses that include fraud or de-
ceit as formal elements”). In Shular, the Court suggested that
Congress might not have used the language “has as an ele-
ment” in § 924(e)(2)(A)(ii) because Congress “may … have
wanted to clarify that the state offense need not include the
identified conduct as a formal element.” 140 S. Ct. at 786.
Even before the Court’s decision in Shular, there was
widespread agreement among our sister circuits that “in-
11
volving” reaches more broadly than “has as an element.”
( … continued)
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that pre-
sents a serious potential risk of physical injury to
another; … .
11 See United States v. Wallace, 937 F.3d 130, 144 (2d Cir. 2019) (attempted
criminal sale of a controlled substance is a “serious drug offense”); Unit-
ed States v. Myers, 925 F.3d 881, 886 (6th Cir. 2019) (initiation of metham-
phetamine manufacture process is a “serious drug offense”); United
States v. Daniels, 915 F.3d 148, 155 (3d Cir. 2019) (attempt to manufacture,
(continued … )
12 No. 19-1215
Nonetheless, not every offense conceivably related to the
manufacture or distribution of drugs “involves” the intent to
manufacture or distribute. “While the term ‘involving’ may
be expansive, it is not limitless.” United States v. Whindleton,
797 F.3d 105, 111 (1st Cir. 2015). The offense conduct of the
state statute must “necessarily entail” the conduct specified
in the ACCA. Kawashima, 565 U.S. at 483–84; see also Shular,
140 S. Ct. at 784–85. In the context of § 924(e)(2)(A)(ii), there-
fore, the conduct of manufacturing, distributing, or pos-
sessing with intent to manufacture or distribute must be in-
herent in the state law offense. For example, our sister cir-
cuits have determined that offenses such as the attempt to
distribute a controlled substance and the initiation of the
methamphetamine manufacture process are “serious drug
offenses.” United States v. Williams, 488 F.3d 1004, 1009 (D.C.
Cir. 2007); United States v. Myers, 925 F.3d 881, 886 (6th Cir.
2019).
We now turn to the case before us. Shular makes clear
that we must determine whether the Ohio state law offense
meets § 924(e)(2)(A)(ii)’s definition of a “serious drug of-
fense” by comparing the elements of the Ohio statute to the
conduct described in the ACCA. To determine whether the
( … continued)
distribute, or possess with intent to manufacture or distribute a con-
trolled substance is a “serious drug offense”); United States v. White, 837
F.3d 1225, 1233–34 (11th Cir. 2016) (collecting cases); United States v. Vick-
ers, 540 F.3d 356, 366 (5th Cir. 2008) (delivery of a controlled substance is
a “serious drug offense”); United States v. McKenney, 450 F.3d 39, 42 (1st
Cir. 2006) (conspiracy to possess with intent to distribute is a “serious
drug offense”); United States v. Brandon, 247 F.3d 186, 190 (4th Cir. 2001)
(interpreting “involving” broadly).
No. 19-1215 13
offense of conviction is one “involving” the intent to manu-
facture or distribute, we therefore must begin by examining
carefully the Ohio statute.
There are—and at the time of Mr. Godinez’s 2008 convic-
tion were—separate statutes in Ohio prohibiting the posses-
sion of a controlled substance and the trafficking of con-
trolled substances. Mr. Godinez was convicted of possession
of cocaine. At the time of his conviction, Ohio Revised Code
Section 2925.11 (2008), the statute of conviction, provided in
relevant part,
(A) No person shall knowingly obtain, possess,
or use a controlled substance.
…
(C) Whoever violates division (A) of this sec-
tion is guilty of one of the following:
…
(4) If the drug involved in the violation is
cocaine or a compound, mixture, prepara-
tion, or substance containing cocaine, who-
ever violates division (A) of this section is
guilty of possession of cocaine. The penalty
for the offense shall be determined as fol-
lows: …
Ohio Rev. Code § 2925.11(A), (C)(4) (2008). What followed
was a graduated set of penalties based on the quantity pos-
sessed. On one end of the spectrum, possession of five to less
than twenty-five grams of powder cocaine or one to less
than five grams of crack cocaine was a fourth-degree felony
that carried a presumption of a prison term. Id.
14 No. 19-1215
§ 2925.11(C)(4)(b). At the other end, possession of one thou-
sand or more grams of powder cocaine or one hundred or
more grams of crack cocaine was a first-degree felony that
carried a mandatory prison term of the maximum prison
term prescribed for a first-degree felony.
Mr. Godinez maintains that “no matter the quantity of
cocaine at issue in [his] Ohio case, his conduct—established
by and limited to the elements of his state conviction—does
12
not satisfy § 924(e)(2)(A)(ii).” We are unwilling to state the
inquiry so narrowly; it risks conflating the term “involving”
in the ACCA with “has as an element.” Rather, we must fo-
cus on whether the Ohio offense of conviction necessarily
entails an intent to distribute.
Mr. Godinez was convicted of possession of cocaine un-
der Ohio Revised Code Section 2925.11(C)(4)(f). At the time
of his conviction, to violate this subsection, he would have
had to possess at least one hundred grams of crack cocaine
or at least one thousand grams of powder cocaine. We there-
fore must ask whether a violation of a state statute prohibit-
ing the possession of one hundred grams of crack cocaine or
one thousand grams of powder cocaine is an offense that
necessarily entails the intent to manufacture or distribute co-
caine.
To answer this question, we must, in the Government’s
view, widen the lens of our inquiry and examine the struc-
ture of the Ohio statutory scheme. Such an examination, con-
tinues the Government, reveals that the state legislature in-
12 App. R.50 at 1.
No. 19-1215 15
tended to “make the possessor’s intent to distribute inherent
13
in the proscribed conduct.” The statutory scheme contains,
albeit in separate sections, parallel sets of graduated—and
identical—penalties for possession and for trafficking of con-
trolled substances. This structure, suggests the Government,
demonstrates that Ohio takes possession just as seriously as
it takes trafficking.
So far so good. But we do not see how this parallelism for
possession and trafficking offenses supports the argument
that the Ohio legislature incorporated intent to distribute in
its proscription of the possession of large quantities of drugs.
Indeed, the penalties are also identical for possession and
trafficking of small quantities.
The Government sees more in the Ohio statute to support
its position. It notes that, at the time of Mr. Godinez’s convic-
tion, the Ohio statute provided (and still provides) an af-
firmative defense of “personal use” to charges of
14
fourth-degree felony violations under Section 2925.11.
Therefore, at the time of Mr. Godinez’s offense, an individu-
al charged with possession of five to less than twenty-five
grams of powder cocaine, or one to less than five grams of
crack cocaine, who successfully established that the con-
trolled substance was possessed solely for personal use
could be instead eligible for prosecution of a misdemeanor
or fifth-degree felony. This defense is not available, however,
13 Government’s Supp. Br. 7.
14 Ohio Rev. Code § 2925.11(F). With respect to this portion of the stat-
ute, the 2008 and 2019 versions are identical.
16 No. 19-1215
for third-, second-, and first-degree felonies. Thus, the Gov-
ernment submits, the Ohio statutory scheme recognizes that
possession of a larger quantity of drugs gives rise to the in-
ference of an intent to manufacture or distribute.
This argument has an initial appeal and deserves our
close attention. In the end, however, we do not find it per-
suasive. A legislative grant of an affirmative defense of per-
sonal use for the possession of small amounts of controlled
substances does not compel the inference that a defendant
who possesses a quantity in excess of that small amount nec-
essarily has the intent to manufacture or distribute that larg-
er amount. The Ohio legislature does not require its prosecu-
tors to prove beyond a reasonable doubt that a defendant in
Mr. Godinez’s shoes had the intent to manufacture or to dis-
tribute the contraband. To use the conviction for possession
to support a ten-year minimum federal sentence under the
ACCA, we would have to permit the Government to employ
an irrebuttable presumption of intent to manufacture or dis-
tribute, a fact that the Ohio legislature did not include as one
of the elements of the crime of conviction and that the State
therefore was not required to prove beyond a reasonable
doubt. Although a prosecutor may ask a trier of fact to con-
sider possession of a large amount of contraband as evi-
dence of intent to distribute, such a permissible evidentiary
inference is a far cry from saying that a state criminal statute
necessarily entails such an intent.
Moreover, the structure of Ohio’s drug enforcement
scheme is stark evidence that it is not Section 2925.11 that
necessarily entails possession with intent to distribute. While
Section 2925.11 addresses possession of controlled substanc-
No. 19-1215 17
es, a separate section, Ohio Revised Code Section 2925.03
15
(2008), addresses trafficking. That section provides,
No person shall knowingly do any of the
following:
(1) Sell or offer to sell a controlled substance;
(2) Prepare for shipment, ship, transport, deliver,
prepare for distribution, or distribute a controlled
substance, when the offender knows or has
reasonable cause to believe that the controlled
substance is intended for sale or resale by the
offender or another person.
Ohio Rev. Code § 2925.03(A) (2008). While the conduct of
“[p]repar[ing] for shipment,” read in isolation, might
possibly mean mere possession, when read in the context of
the requirement that an offender must “know[] or ha[ve]
reasonable cause to believe that the controlled substance is
intended for sale or resale,” it is clear that the provision
prohibits possession with intent to distribute. See United
States v. Walker, 858 F.3d 196, 200 (4th Cir. 2017) (concluding
that each act specified under Section 2925.03(A)(2) is an act
of distribution); United States v. Fuentes-Oyervides, 541 F.3d
286, 289 (5th Cir. 2008) (rejecting the argument that Section
2925.03 encompasses mere possession and holding that it
covers “act[s] of distribution”); United States v. Karam, 496
F.3d 1157, 1167–68 (10th Cir. 2007) (concluding that Section
2925.03(A)(2) describes “acts of distribution” and “prohibits
each of the various phases of the distribution process”). That
15 For all purposes relevant to our analysis here, the 2008 and 2019 ver-
sions of Ohio Revised Code Section 2925.03 are substantively identical.
18 No. 19-1215
possession with intent to manufacture or distribute is an
offense under Section 2925.03 certainly lends support to the
contention that the more serious offenses of possession
under Section 2925.11 do not necessarily entail the intent to
manufacture or distribute. Mr. Godinez could have been
charged with Section 2925.03(A)(2), but he was convicted of
the categorically different offense of possession under
Section 2925.11.
Two of our sister circuits have concluded that a court of
appeals may infer intent to manufacture or to distribute
from a prior conviction for possession. We conclude that nei-
ther of these cases, which involve statutory structures differ-
ent from the one here, provides a sound rule of decision for
the case before us. In United States v. Brandon, 247 F.3d 186
(4th Cir. 2001), the Fourth Circuit considered whether a prior
conviction for possession under a North Carolina statute
was a “serious drug offense.” North Carolina General Stat-
ute Section 90-95(h)(3) provided that “[a]ny person who
sells, manufactures, delivers, transports, or possesses 28
grams or more of cocaine … shall be guilty of a felony …
known as ‘trafficking in cocaine.’” Three levels of penalties
existed under the statute, corresponding to the quantity of
the substance involved. Brandon was convicted of posses-
sion of twenty-eight to two hundred grams of cocaine. The
Fourth Circuit considered “whether intent to manufacture or
distribute is inherent in the generic conduct proscribed by
the statute and alleged in the indictment underlying Bran-
don’s 1994 conviction—possession of more than twenty-
eight grams but less than two hundred grams of cocaine.”
247 F.3d at 191–92. It observed that although intent to dis-
tribute might be inherent in the possession of very large
amounts of cocaine, such as two hundred grams, Brandon’s
No. 19-1215 19
offense could have involved a quantity at the lower end of
the range proscribed by the statute. “Given the range of drug
quantities covered by the North Carolina statute, … we
simply cannot say that the typical conduct reached by that
statute inherently involves an intent to manufacture or dis-
tribute that cocaine.” Id. at 193.
It may be reasonable to infer intent to distribute from
possession of a large quantity of drugs, but as the Fourth
Circuit noted, it is not a necessary inference. The North Car-
olina statute at issue in Brandon was labeled a “trafficking”
offense, but the court concluded,
[i]t is an oversimplification to say that all traf-
ficking offenses in North Carolina involve an
intent to distribute. While the North Carolina
legislature may well have concluded that one
who possesses more than twenty-eight grams
of cocaine likely intends to distribute it, the
statute by its terms applies to those who do not
intend to distribute as long as they possess the
requisite quantity.
Id. at 195. The North Carolina legislature could have made
intent to distribute inherent in the offense, but it did not. The
statute was broad enough to cover possession without intent
to distribute, and thus “it cannot fairly be said that an intent
to distribute is inherent in all violations of N.C. Gen. Stat.
§ 90-95(h).” Id. (emphasis added).
By contrast, the Eleventh Circuit concluded that intent to
distribute was inherent in all violations of an Alabama stat-
ute prohibiting trafficking in drugs. United States v. White,
20 No. 19-1215
837 F.3d 1225 (11th Cir. 2016). White was convicted of violat-
ing an Alabama statute pursuant to which
[a]ny person who knowingly sells, manufac-
tures, delivers, or brings into this state, or who
is knowingly in actual or constructive posses-
sion of, 28 grams or more of cocaine or of any
mixture containing cocaine, described in Sec-
tion 20-2-25(1), is guilty of a felony, which fel-
ony shall be known as “trafficking in cocaine.”
Ala. Code § 13A-12-231(2). Levels of punishment for viola-
tions of the statute increased according to the quantity of co-
caine involved. The statute was part of Alabama’s
three-tiered system for drug offenses; the offense for which
White was convicted was part of the most serious tier. The
other two tiers prohibited (1) possession of any amount of a
controlled substance other than marijuana, and (2) the un-
lawful distribution of or possession with intent to distribute
a controlled substance other than marijuana. Reasoning that
“a statute classifying possession of a certain quantity of
drugs was sufficient to indicate an intent to distribute those
drugs,” the Eleventh Circuit came to the opposite conclusion
as the Fourth Circuit and determined that twenty-eight
grams was sufficient to give rise to an inference of intent to
distribute. Id. at 1234.
The statutory schemes in Brandon and White are marked-
ly different than the Ohio statute here. The statutes in those
cases outlined separate offenses for the possession of small
amounts of controlled substances and the sale, manufacture,
delivery, transport, or possession of larger amounts. The
Ohio statute is structured differently in that possession and
trafficking are distinct offenses. The statute here does not in-
No. 19-1215 21
dicate that the conduct proscribed necessarily entails the in-
tent to manufacture or distribute.
C.
It is not enough to conclude that an error occurred; to sat-
isfy plain error review, the error must have been plain and
must have affected Mr. Godinez’s substantial rights. Olano,
507 U.S. at 732–34; see United States v. Jaimes-Jaimes, 406 F.3d
845, 850–51 (7th Cir. 2005) (concluding that the court plainly
erred in imposing an unwarranted 16-level increase). A
“plain” error is one that is “clear” or “obvious.” Olano, 507
U.S. at 734. Here, the sentencing court failed to consider the
changes made by the First Step Act, namely, the heightened
thresholds that must be met for a court to impose increased
mandatory minimums for certain drug offenses. Such a mis-
apprehension of law is “plain.” The error affected
Mr. Godinez’s substantial rights because it doubled the
mandatory minimum to which he was subject, increasing the
Guidelines range. “We have repeatedly held that a sentenc-
ing based on an incorrect Guidelines range constitutes plain
error and warrants a remand for resentencing, unless we
have reason to believe that the error in no way affected the
district court’s selection of a particular sentence.” United
States v. Martin, 692 F.3d 760, 766 (7th Cir. 2012) (internal
quotation marks omitted).
If these requirements are met, we may exercise our dis-
cretion to remedy plain error “if the error ‘seriously affect[s]
the fairness, integrity or public reputation of judicial pro-
ceedings.’” Olano, 507 U.S. at 736 (alteration in original)
(quoting Atkinson, 297 U.S. at 160). Here, the error affected
the fairness of Mr. Godinez’s sentencing proceedings by sub-
22 No. 19-1215
jecting him to an increased mandatory minimum. At sen-
tencing, Mr. Godinez
may have failed to notice the sentencing error,
but so did defense counsel, the Assistant Unit-
ed States Attorney, … and the district court
judge, and we conclude that it would be unjust
to place the entire burden for these oversights
on [Mr. Godinez] by permitting him to serve
an excessive prison sentence.
Jaimes-Jaimes, 406 F.3d at 851.
Conclusion
Mr. Godinez’s prior conviction for possession of cocaine
was not a “serious drug offense” within the meaning of
§ 924(e)(2)(A) and therefore was not a “serious drug felony”
under § 841(b)(1)(B). Thus, it should not have triggered
heightened penalties. The district court plainly erred when it
began its sentencing calculations with a mandatory mini-
mum of ten years instead of five years. Accordingly, we va-
cate Mr. Godinez’s sentence and remand for resentencing.
VACATED and REMANDED