7th Circuit remands mandatory-minimum drug case for resentencing

A “dangerous drug” conviction in Arizona is not considered a felony drug offense qualifying for particular federal mandatory minimum sentencing in Indiana under because of differences in definitions, the 7th Circuit Court of Appeals determined.

Matthew Elder and his father were charged in 2013 with having conspired “to traffic large quantities of methamphetamine from Arizona to southwest Indiana.” Along with six other defendants, Elder was found guilty of conspiring to distribute 50 grams or more of meth and 500 grams or more of a mixture or substance containing a detectable amount of meth.

At the time of his present conviction, Elder had two prior Arizona drug convictions — a 1997 conviction for possession of drug paraphernalia and a 1999 conviction for possession of equipment or chemicals for the manufacture of dangerous drugs.

At his first sentencing, the district court concluded Elder was subject under the three-strikes rule to a mandatory term of life imprisonment because of he had prior convictions. The 7th Circuit remanded for resentencing and directed the district court to decide whether his 1999 conviction qualified.

During a second sentencing, the district court concluded the 1999 conviction did qualify as a felony drug offense under § 841(b)(1)(A). Accordingly, Elder was subject to a mandatory minimum sentence of 20 years imprisonment. The district court consequently sentenced Elder below the guidelines range to 260 months, advising him the guidelines range would not change from 324 to 405 months.

“However, the district court said nothing about whether it would have imposed a different sentence if Mr. Elder’s statutory range had been lower,” Judge Kenneth Ripple wrote for the court Wednesday.

Elder appealed his second sentence, arguing his previous 1999 Arizona dangerous drug conviction did not qualify as a felony drug offense under the categorical approach of Taylor v. United States, 495 U.S. 575 (1990).

Elder also contended that under Taylor, his conviction did not qualify because the Arizona statute criminalizes a broader category of drugs than § 802(44) incorporates, and that he should be subject to a statutory minimum of 10 years.

On appeal, the 7th Circuit Court agreed with Elder’s argument that the district court applied the wrong statutory minimum from § 841(b)(1)(A), ultimately finding the 1999 conviction did not qualify.

"(W)e agree with Mr. Elder that the 1999 Arizona conviction is not a 'felony drug offense' as defined by § 802(44). We therefore issue a limited remand under United States v. Paladino, 401 F.3d 471, 483–84 (7th Cir. 2005), to permit the district court to determine whether this error was harmless," Ripple wrote.

In its determination, the 7th Circuit calculated that the categorical approach was best for USA v. Matthew Elder, 17-2207.

“The text of § 841(b)(1)(A) and § 802(44) clearly requires a categorical approach by asking us to examine the defendant’s statute of conviction — in other words, whether the defendant has a ‘conviction,’ § 841(b)(1)(A), ‘under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to’ certain substances, § 802(44),” Ripple concluded.

“Moreover, any other approach would ‘raise serious Sixth Amendment concerns,’ because it could allow the sentencing court to ‘go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense.’ Finally, applying the categorical approach avoids unfairness to defendants by not placing the burden on defendants to challenge extraneous factual inaccuracies in record documents not regarding elements of the offense.”

Under the categorical approach, the 7th Circuit also found error in Elder’s 20-year minimum sentence for having a prior felony drug offense conviction, noting Arizona Revised Statutes section 13-3407 sweeps more broadly than the definition of felony drug offense in § 802(44) by including at least two substances not included in § 802(44).

Furthermore, the 7th Circuit found any error committed in applying § 802(44) was harmless.

“[U]nder our holding today, Mr. Elder’s statutory range has decreased significantly,” Ripple wrote. “Because Mr. Elder no longer has a prior conviction that qualifies as a felony drug offense under § 802(44), his mandatory minimum sentence is ten years, not twenty years.”

The 7th Circuit ordered a limited remand, permitting the sentencing judge to determine whether he would reimpose his original sentence, if required to resentence.

“If the district court confirms that it would have imposed the same sentence regardless of the statutory range, we will ‘affirm the original sentence,’” Ripple concluded.  “If, however, the district court ‘states … that he would have imposed a different sentence[,] … we will vacate the original sentence and remand for resentencing.’”

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