United States of America v. Tom Smith, III

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

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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

judgment.

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

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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

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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.

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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.

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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

709).

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‐

1(b)(3).

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?

THE DEFENDANT: Yes.

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.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

judgment.