United States v. Kalvin Stewart ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 9, 2020
Decided July 27, 2020
Before
DIANE S. SYKES, Chief Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 19‐2619
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Illinois, Eastern Division.
v. No. 18 CR 485
KALVIN STEWART, Ronald A. Guzmán,
Defendant‐Appellant. Judge.
ORDER
On August 30, 2018, a grand jury returned an indictment charging Kalvin
Stewart with four drug‐related offenses. He pleaded guilty to one: conspiracy to
distribute and to possess with intent to distribute 500 grams or more of a substance
containing a detectable amount of cocaine in violation of 21 U.S.C. § 846.
The Sentencing Guidelines apply the career‐offender enhancement when the
defendant (in addition to requisites not at issue here) “has at least two prior felony
No. 19‐2619 Page 2
convictions of either a crime of violence or a controlled substance offense.” U.S.S.G.
§ 4B1.1(a). The presentence investigation report determined that Stewart had two prior
felony convictions for controlled‐substance offenses and thus recommended that he be
sentenced as a career offender. Upon application of the enhancement, the Guidelines
calculation yielded a range of 188 to 235 months in prison.
Stewart objected to the career‐offender enhancement. He argued that one of the
predicate convictions identified in the PSR—a Wisconsin conviction for possession with
intent to distribute cocaine in violation of sections 961.41(1m)(cm) and 939.05 of the
Wisconsin Statutes—was categorically broader than the Guidelines definition of a
“controlled substance offense.” U.S.S.G. § 4B1.2(b).
The district judge disagreed, applied the career‐offender enhancement, and
sentenced Stewart to 188 months in prison. He appealed, renewing his contention that
the Wisconsin statute is not a valid predicate offense for the application of the career‐
offender enhancement.
We use a categorical approach to determine whether an offender’s prior offenses
are predicate crimes under the Sentencing Guidelines. United States v. Edwards, 836 F.3d
831, 834–35 (7th Cir. 2016). The determination turns on the statute of conviction, not the
actual conduct for which the offender was convicted. If an indivisible statute
criminalizes conduct that does not constitute a “controlled substance offense” under the
Guidelines, then a conviction under the statute does not qualify as a predicate offense.
Id.
Stewart notes that the Wisconsin statute penalizes inchoate offenses—namely,
(1) aiding and abetting the possession of controlled substances with intent to distribute
and (2) conspiracy to possess with the intent to distribute. Because the Guidelines
definition of “controlled substance offense” does not explicitly include inchoate
offenses, he argues that the Wisconsin statute is broader than the Guidelines definition
and therefore not a valid predicate offense.
We have already rejected Stewart’s argument in United States v. Adams, 934 F.3d
720 (7th Cir. 2019). There the defendant argued that an Illinois controlled‐substances
law was categorically broader than the federal definition of “controlled substance
offense” because the Illinois statute criminalizes inchoate offenses. Id. at 727. We were
unconvinced. We observed that Application Note 1 to § 4B1.2 explicitly states that the
No. 19‐2619 Page 3
definition of “controlled substance offense” encompasses inchoate offenses such as “the
offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”
Id. So we held that the phrase “controlled substance offense” includes inchoate offenses
and that criminal statutes that penalize inchoate offenses are not categorically broader
than federal controlled‐substance offenses. Id. at 729–30.
Stewart hasn’t asked us to revisit our holding in Adams, and the decision
squarely controls here. Because the definition of “controlled substance offense” in the
career‐offender guideline encompasses inchoate offenses, the Wisconsin controlled‐
substances statute is a valid predicate. Stewart had two predicate controlled‐substance
offenses, and the judge correctly sentenced him as a career offender.
AFFIRMED