The 7th Circuit Court of Appeals affirmed a determination that man convicted for drug-related offenses was a career offender under § 4B1.1 of the United States Sentencing Guidelines and that a corresponding enhancement was appropriately applied to his sentence, rejecting his interpretation of the statute.
After twice selling cocaine to a confidential informant, law enforcement searched Tom Smith III’s home and found 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.
Smith was charged with possession with intent to distribute a controlled substance, two counts of unlawful possession of a firearm, and three counts of distribution of a controlled substance. He agreed to plead guilty to possession with the intent to distribute a controlled substance and possession of a firearm by a prohibited person.
Smith also stipulated that he had two prior convictions for offenses that were punishable by more than one year of imprisonment that qualified as controlled substance offenses under § 4B1.2(b) of the U.S. Sentencing Guidelines. However, he argued that his former state conviction for dealing in cocaine and a narcotic drug in violation of I.C. § 35‐48‐4‐1 criminalized more conduct than the guidelines’ definition of a controlled substance offense.
That argument stemmed from his objections to a presentence investigation report that determined a career enhancement should be added to his sentence for his two prior felony convictions. The PSR calculated the guidelines’ imprisonment range as 188 to 235 months.
Smith objected to the PSR, arguing that his conviction under the overbroad statute could not serve as a predicate controlled substance offense for purposes of a career‐offender designation. But a probation officer disagreed, explaining that the elements of the crime of which Smith was convicted under Indiana’s statute fit squarely within § 4B1.2(b)’s definition of “controlled substance offense.”
Smith’s arguments regarding the PSR were rejected, and the trial court imposed concurrent sentences of 188 months and 120 months.
On appeal, Smith requested the 7th Circuit Court of Appeals vacate his sentence for improperly including a career‐offender enhancement, which it denied to do in USA v. Tom Smith, III, 18-2905.
“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,” Circuit Judge Joel Flaum wrote for the unanimous panel.
The 7th Circuit thus found I.C. § 35‐48‐4‐1 to be divisible after it concluded an alternatively phrased statute, like Indiana’s cocaine‐dealing statute, listed alternative elements or alternative means.
Specifically, it found that the state focused on one of the statute’s alternative subsections to the exclusion of all others in charging Smith and in reaching a plea agreement, which therefore followed that § 35‐48‐4‐1(a)’s alternative subsections are a list of alternative elements. It next applied the modified categorical approach.
“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,” Flaum wrote.
“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. … The distinction between ‘deliver’ in Indiana’s statute and ‘distribute’ in the Guidelines’ definition is without a difference.”
The 7th Circuit therefore concluded Smith’s conviction under § 35‐48‐4‐1 qualified as his second predicate controlled substance offense, and affirmed the district court’s decision to apply the career offender enhancement in sentencing Smith.