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Date: 04-22-2019

Case Style:

United States of America v. Tom Smith, III

Case Number: 18-2905

Judge: Flaum

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Southern District of Indiana (Marion County)

Plaintiff's Attorney: Peter A. Blackett

Defendant's Attorney: Matthew M. Robinson


Tom Smith, III appeals the district
court’s determination that he is a career offender under
§ 4B1.1 of the United States Sentencing Guidelines, and is eligible
for the corresponding career‐offender sentencing enhancement.
The district court applied the enhancement after
concluding that Smith had two prior convictions that qualified
as controlled substance offenses under § 4B1.2(b) of the
2 No. 18‐2905
Guidelines. Smith maintains that one of those convictions—
the one under Indiana’s “Dealing in cocaine or narcotic drug”
statute, Ind. Code § 35‐48‐4‐1—criminalizes more conduct
than the Guidelines’ definition of a controlled substance offense.
As such, Smith contends that his conviction under the
overbroad statute cannot serve as a predicate controlled substance
offense for purposes of a career‐offender designation.
Smith asks that we vacate his sentence for improperly including
a career‐offender enhancement. We disagree with Smith’s
interpretation of the statute and thus affirm the district court’s
I. Background
A. The Indictment and Guilty Plea
In March 2017, Smith sold cocaine on two occasions to a
confidential informant. When law enforcement searched his
home, he had 12.83 grams of cocaine base, 111.57 grams of cocaine
powder, a rifle, two panels of a body‐armor vest, and a
digital scale. In an indictment, the government charged Smith
with one count of possession with intent to distribute a controlled
substance in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C); two counts of unlawful possession of a firearm in
violation of 18 U.S.C. § 922(g)(1); and three counts of distribution
of a controlled substance in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C). The government also filed an information
under 21 U.S.C. § 851, alleging that Smith had a prior
felony drug conviction from 2004 for possession with intent
No. 18‐2905 3
to distribute 50 grams or more of cocaine base in violation of
21 U.S.C. § 841(a)(1).
Smith did not contest the charges. He entered into a written
plea agreement pursuant to Federal Rule of Criminal Procedure
11(c)(1)(A) and (B). Smith agreed to plead guilty to
Count One, possession with the intent to distribute a controlled
substance, which was punishable by a maximum sentence
of thirty years, and Count Two, possession of a firearm
by a prohibited person, which was punishable by a maximum
sentence of ten years. Smith also stipulated that he had two
prior convictions for offenses that were punishable by more
than one year of imprisonment. The first was the 2004 conviction
that the government identified in the information. The
second was a 2009 state conviction for “Dealing in cocaine or
narcotic drug” in violation of Indiana Code § 35‐48‐4‐1. In the
event that the court sentenced Smith as a career offender under
§ 4B1.1 of the Guidelines, Smith reserved his right to appeal
that determination.
Under the Guidelines, a defendant who qualifies as a career
offender receives an enhancement to his sentence.
U.S.S.G. § 4B1.1. To be a “career offender,” a defendant must
be: (1) at least eighteen years old at the time he committed the
offense of conviction; (2) the offense of conviction must be a
felony that is either a crime of violence or a controlled substance
offense; and (3) the defendant must have at least two
prior felony convictions of either a crime of violence or a controlled
substance offense. Id. § 4B1.1(a). A “controlled substance
offense” includes any federal or state offense that is
punishable by a term of imprisonment of over one year and
prohibits “the manufacture, import, export, distribution, or
4 No. 18‐2905
dispensing of a controlled substance (or a counterfeit substance)
or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense.” Id. § 4B1.2(b).
B. The Presentence Investigation Report
The United States Probation Office filed an initial presentence
investigation report (“PSR”) on April 16, 2018. Then, on
May 18, 2018, the Probation Office filed the final PSR with an
addendum containing Smith’s objections and the Probation
Office’s responses; the substance of the PSR was otherwise
unchanged from the initial filing.
According to the PSR, the base offense level for Smith’s
controlled substance offense was 20 due to the amount of cocaine
involved. U.S.S.G. § 2D1.1(a)(5), (c)(10). Smith received
a 2‐level enhancement for maintaining a premises for the purpose
of distributing controlled substances, id. § 2D1.1(b)(12),
so his adjusted offense level for the controlled substance offense
was 22. For Smith’s firearm offense, the total offense
level was 26, id. § 2K2.1(a)(1); and because he received no enhancements
for that offense, his adjusted offense level was
also 26. The PSR used the greater of the two adjusted offense
levels—here, 26. Next, the PSR determined that Smith should
receive the career‐offender enhancement. Id. § 4B1.1(b)(2). As
a result, Smith’s offense level increased to 34. Finally, Smith
received a 2‐level deduction for accepting responsibility for
the offense and a 1‐level deduction for timely notifying authorities
of his intention to enter a guilty plea. Id. § 3E1.1(a),
(b). Thus, Smith’s total offense level was 31. Because the PSR
considered Smith a career offender, it calculated his criminal
history category at VI. Id. § 4B1.1. Without career‐offender
status, Smith’s criminal history category would have been III.
No. 18‐2905 5
Given a total offense level of 31 and a criminal history category
of VI, the PSR calculated the Guidelines’ imprisonment
range as 188 to 235 months.
Smith filed ten objections to the PSR. Relevant to this appeal,
Smith argued that his conviction under Indiana Code
§ 35‐48‐4‐1 was not a “controlled substance offense” under
§ 4B1.2(b), and therefore, he did not have the requisite two
controlled substance offenses to qualify for the career‐offender
enhancement. More specifically, he claimed that the
Indiana statute underlying his prior state conviction is
broader than the Guidelines’ generic definition of “controlled
substance offense.” The probation officer disagreed, explaining
that the elements of the crime of which Smith was convicted
under Indiana’s statute fits squarely within § 4B1.2(b)’s
definition of “controlled substance offense.”
C. The Change of Plea and Sentencing Hearing
On August 3, 2018, the court held Smith’s change of plea
and sentencing hearing. After the Rule 11 colloquy, the district
court accepted Smith’s guilty plea to Counts One and
Two. The court also heard arguments about Smith’s objections
to the PSR but ultimately overruled each of them. The
court explained that a career‐offender enhancement was
proper because “whether you consider the statute in its entirety,
or you break it down into a divisible non‐categorical
sort of approach … the prior conviction of Mr. Smith, the second
one under Indiana law, was for a controlled substance violation.”
Ultimately, the court imposed a sentence of 188
months for Count One and 120 months for Count Two, with
both sentences to run concurrently. This appeal followed.
6 No. 18‐2905
II. Discussion
Smith challenges the career‐offender enhancement to his
sentence pursuant to § 4B1.1 of the Guidelines, arguing that
his conviction under Indiana’s “Dealing in cocaine or narcotic
drug” statute, Ind. Code § 35‐48‐4‐1, is not a predicate controlled
substance offense under § 4B1.2(b) of the Guidelines.
We review the determination of whether a prior offense is a
controlled substance offense under the Guidelines de novo.
See United States v. Tate, 822 F.3d 370, 375 (7th Cir. 2016). The
Indiana statute at issue here provides, in relevant part:
(a) A person who:

(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, pure or adulterated,
classified in schedule I or II;
commits dealing in cocaine or a narcotic drug, a
Class B felony, except as provided in [the subsection
defining Class A felony offenses].
Ind. Cod. § 35‐48‐4‐1 (2008).
To determine whether a prior conviction is a controlled
substance offense for purposes of the Guidelines, courts apply
a “categorical approach,” whereby they “focus solely on …
the elements of the crime of conviction … while ignoring the
particular facts of the case” to see if those elements “match”
No. 18‐2905 7
the elements of the “generic” offense. Mathis v. United States,
136 S. Ct. 2243, 2248 (2016). If the elements of the crime of conviction
are the same as, or narrower than, the elements of the
generic version of the offense, the crime of conviction qualifies
as a predicate offense. Id. at 2247–48. If the elements are
broader, we ask whether the statute is “divisible.” A statute is
divisible if it lists elements in the alternative, thereby defining
multiple crimes. Id. at 2249. When analyzing a divisible statute,
a sentencing court applies a “modified categorical approach.”
Id. Under that approach, the court reviews “a limited
class of documents”—known as Shepard‐approved documents—“
to determine what crime, with what elements, a defendant
was convicted of.” Id. (citing Shepard v. United States,
544 U.S. 13, 26 (2005)). The court then “compare[s] that crime
… with the relevant generic offense.” Id.
Here, the district court explained that a conviction under
Indiana Code § 35‐48‐4‐1 qualifies as a controlled substance
offense regardless of whether the categorial or modified categorical
approach applied. We agree. Arguably, the statute has
the same elements as § 4B1.2(b), so the career‐offender enhancement
should apply under the categorical approach.1 But
even if the statute is broader than the Guidelines’ definition,
because the statute is divisible, we apply the modified categorical
approach and reach the same result.
1 The application note to § 4B1.2(b) states that a controlled substance
offense “include[s] the offenses of aiding and abetting, conspiring, and attempting
to commit such offenses.” U.S.S.G. § 4B1.2, cmt. n.1. That describes
conduct that might qualify as “financ[ing]” drug‐dealing under Indiana
Code § 35‐48‐4‐1(a)(2)(B) or (D).
8 No. 18‐2905
A. Divisibility
Our first task is to determine whether Indiana Code § 35‐
48‐4‐1 is divisible. To do so, we must discern whether an alternatively
phrased statute, like Indiana’s cocaine‐dealing
statute, lists alternative elements or alternative means. Mathis,
136 S. Ct. at 2256. “‘Elements’ are the ‘constituent parts’ of a
crime’s legal definition—the things the ‘prosecution must
prove to sustain a conviction.’” Id. at 2248 (quoting Black’s
Law Dictionary 634 (10th ed. 2014)). Means are factual circumstances
or events; “they need neither be found by a jury
nor admitted by a defendant.” Id. (citing Black’s Law Dictionary
Sometimes this initial inquiry is straightforward, either because
a state court has decided that the statute’s alternatives
are elements or means, or because it is indisputable from the
plain language of the statute that the alternatives are elements
or means. See id. But when state law does not provide a clear
answer, Mathis guides the sentencing court to look at the record
of the prior conviction “for ‘the sole and limited purpose
of determining whether [the listed items are] element[s] of the
offense.’” Id. at 2256–57 (alterations in original) (citation omitted).
This review of the record is truly limited because if by
peering into the record the sentencing court learns that the
listed items are means, the court must cease further consideration
of the record and return to strictly applying the categorial
approach. Id. at 2257.
Smith insists that the statute is indivisible, but he does not
offer any reasoning or legal authority to support this position.
The government, by contrast, argues that both Indiana law
and the record of conviction support its position that the statute
is divisible.
No. 18‐2905 9
1. Indiana Law
Turning first to the language of § 35‐48‐4‐1 itself, the government
argues that the statute is divisible because certain
subsections impose different punishments. See id. at 2256 (“If
statutory alternatives carry different punishments, then …
they must be elements.” (citing Apprendi v. New Jersey, 530
U.S. 466 (2000))). Per the statute, a defendant is guilty of a
Class B felony if the defendant knowingly or intentionally:
(1) manufactured a narcotic drug, (2) financed the manufacture
of a narcotic drug, (3) delivered a narcotic drug, or (4) financed
the delivery of a narcotic drug. Ind. Code. § 35‐48‐4‐
1(a) (2008). Whereas a defendant would be guilty of a Class A
felony if: (1) the amount of the drug weighed more than three
grams; (2) the defendant delivered or financed the delivery of
a narcotic drug to a person under eighteen and at least three
years younger than the defendant; or (3) the defendant manufactured,
delivered, or financed the delivery of the drug on
a school bus, or in, on, or within one‐thousand feet of a school
property, public park, family housing complex, or youth program
center. Id. § 35‐48‐4‐1(b)(1)–(3).
We, however, do not read § 35‐48‐4‐1(b) as assigning different
punishments to the alternative types of conduct outlined
in each subsection of § 35‐48‐4‐1(a). Rather, we read
§ 35‐48‐4‐1(b) as assigning different punishments for aggravated
versions of that same conduct described in the subsections
of § 35‐48‐4‐1(a). The legislature punishes drug dealing
in larger quantities more harshly than it does drug dealing in
smaller quantities, § 35‐48‐4‐1(b)(1); it punishes drug dealing
to certain minors more harshly than drug dealing to adults,
§ 35‐48‐4‐1(b)(2); and it punishes drug dealing near places
where children congregate more harshly than drug dealing in
10 No. 18‐2905
places where children are less likely to be present, § 35‐48‐4‐
While the statutory language does not itself establish that
§ 35‐48‐4‐1(a) includes alternative elements and is divisible,
we do agree that Indiana caselaw supports that conclusion.
The government cites two Indiana state court decisions that
treat the statute as listing alternative elements that define
multiple crimes. See Eckelbarger v. State, 51 N.E.3d 169, 170 &
n.1 (Ind. 2016) (per curiam) (characterizing dealing crimes as
“dealing in methamphetamine (by delivery)” and “dealing in
methamphetamine (by manufacture)”); Collins v. State, 659
N.E.2d 509, 510–11 (Ind. 1995) (isolating the delivery element
from the other three alternatives in deciding what the state
“must have proved” in the context of double jeopardy
challenge on appeal).2 And as we stated in United States v.
Anderson—an unpublished order issued after the government
filed its appellate brief—“Indiana courts treat § 35‐48‐4‐1(a) as
divisible.” No. 18‐1548, slip op. at 6 (7th Cir. Mar. 21, 2019)3;
2 Although the Indiana legislature frequently amends and republishes
§ 35‐48‐4‐1, for the purposes of this appeal, the versions of the statute remain
substantively the same between the approval of Public Law 165 in
1990 through the publication of the pocket part in 2009. See Pub. L. No.
165‐1990, § 3; Pub. L. No. 296‐1995, § 3; Pub. L. No. 65‐1996, § 11; Pub. L.
No. 17‐2001, § 19; Pub. L. No. 151‐2006, § 22; Ind. Code § 35–48–4–1 (2008);
Ind. Code § 35–48–4–1 (2009).
3 As we explained in Anderson, our conclusion that Indiana Code § 35‐
48‐4‐1 is divisible is consistent with our opinion in Lopez v. Lynch, in which
we applied the modified categorical approach (without expressly deciding
the issue of divisibility) to determine if a conviction under § 35‐48‐4‐
1(a) constituted an aggravated felony under the Immigration and Nationality
Act. Anderson, slip op. at 6 (citing Lopez v. Lynch, 810 F.3d 484, 489
(7th Cir. 2016)).
No. 18‐2905 11
see McKinley v. State, 45 N.E.3d 25, 29 (Ind. Ct. App. 2015)
(rejecting the State’s argument that subsection (a)(1)’s
“knowingly or intentionally” applies to subsection (a)(2)
because of the “disjunctive conjunction” between the two
subsections); Harper v. State, 963 N.E.2d 653, 658 n.3 (Ind. Ct.
App. 2012) (describing the statute as “provid[ing] the elements
for the crimes of dealing in cocaine or a narcotic
drug”(emphasis added)); Upshaw v. State, 934 N.E.2d 178, 183
(Ind. Ct. App. 2010) (explaining that in order to convict the
defendant of a class B felony dealing in cocaine, “the State was
required to prove beyond a reasonable doubt that he
knowingly or intentionally possessed cocaine with the intent
to deliver”).
2. Record of Conviction
In any event, even if Indiana law did not provide a clear
answer to the elements or means question, the government
asserts that a targeted glance at Smith’s record of conviction
confirms that the statute’s list of alternatives are elements and
not means. See Mathis, 136 S. Ct. at 2256–57. Here, the record
included a plea agreement, the judgment of conviction, an information,
and a transcript of a colloquy with the state court
judge. Only the latter two sources provide information at the
requisite level of specificity.4
The information describes Smith’s charge in the following
terms: “Smith … did knowingly possess with intent to deliver
4 The plea agreement only shows that Smith pleaded guilty to “Count
I‐Dealing in Cocaine, as a class B felony lesser included offense”; it does
not cite the relevant subsection of the statute nor does it describe the underlying
criminal conduct. The judgment of conviction indicates that
Smith was found guilty of dealing in cocaine or narcotics and that the
“Class” for that conviction was “FA.” But under the section for “Judge’s
12 No. 18‐2905
a controlled substance, that is: cocaine, in an amount greater
than three (3) grams.” And Smith’s colloquy with the state
court judge similarly establishes that Smith pleaded guilty to
possession with the intent to deliver:
THE COURT: … Count I, as a Class B felony, alleges
that … you, Tom Smith, … did knowingly
possess, with the intent to deliver, a controlled
substance, that is: cocaine. Is that the first count
you’re pleading guilty to?
Although neither the information nor the transcript of the colloquy
cite to a specific subsection of the statute, it is clear from
the descriptions that both documents refer to “possession,
with intent to … deliver” under § 35‐48‐4‐1(a)(2)(C). Indeed,
they do not mention the terms “manufacture” or “finance,”
one of which would be necessary to charge or convict Smith
under any of the other subsections in the statute. See Ind.
Code § 35‐48‐4‐1(a)(2)(A)–(B), (D). This limited view into the
record of conviction shows that the state focused on one of the
statute’s alternative subsections to the exclusion of all others
in charging Smith and reaching a plea agreement; therefore,
it follows that § 35‐48‐4‐1(a)’s alternative subsections are a list
of alternative elements.
B. Modified Categorical Approach
Since Indiana Code § 35‐48‐4‐1 is divisible, we apply the
modified categorical approach. First, we review the Shepard‐
Recommendations,” only the following “sentencing comments” appeared:
“Judgment of conviction entered as lesser included dealing in cocaine/
FB on Count I.”
No. 18‐2905 13
approved documents to understand of which crime and elements
the defendant was convicted. See Mathis, 136 S. Ct. at
2249. Then, we compare the elements of that crime to the generic
offense. See id. Here, this endeavor is straightforward because,
as we just explained, the information and Smith’s colloquy
with the state court judge confirm that Smith was
charged with and ultimately pleaded guilty to knowingly
possessing, with the intent to deliver, a controlled substance.
See Ind. Code § 35‐48‐4‐1(a)(2)(C). That crime and those elements
match the Guidelines’ definition of a controlled substance:
(1) possession (2) of a controlled substance (3) with the
intent to distribute that substance. See U.S.S.G. § 4B1.2(b). The
distinction between “deliver” in Indiana’s statute and “distribute”
in the Guidelines’ definition is without a difference.
See United States v. Madkins, 866 F.3d 1136, 1144 (10th Cir.
2017) (“Federal law provides that for purposes of [U.S.S.G.
§ 4B1.2(b)’s] definition, ‘distribute’ means ‘to deliver … a controlled
substance or listed chemical.’” (second alteration in
original) (quoting 21 U.S.C. § 802(11))).
Smith’s conviction under § 35‐48‐4‐1 qualifies as his second
predicate controlled substance offense. We affirm the district
court’s decision to apply the career‐offender enhancement
in sentencing Smith.

Outcome: III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s

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