No error in sentencing enhancement for man with prior conviction, 7th Circuit affirms

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A district court did not plainly err in applying a sentencing enhancement to a man who pleaded guilty to distributing drugs, the 7th Circuit Court of Appeals has ruled.

Anthony Pemberton was sentenced to 15 years after selling methamphetamine to an undercover informant and pleading guilty to distributing drugs.

The Indiana Southern District Court determined Pemberton’s 2003 conviction for conspiracy to commit robbery was a “serious violent felony” under Indiana law, subjecting him to the 15-year minimum.

Normally, distributing the quantity of drugs Pemberton did — 50 grams — carries a 10-year minimum sentence.

Pemberton objected to the application of the enhanced mandatory minimum sentence, arguing the facts underlying his 2003 conviction fell under an exception to the definition of “serious violent felony” where no dangerous weapon was used.

Pemberton eventually abandoned that argument, but he also contended that his particular conduct didn’t qualify as a conspiracy under federal law.

The district court overruled his objections.

Along with the 15-year sentence, Pemberton was also sentenced to 10 years of supervised release.

On appeal, Pemberton reframed his objection to the enhancement, this time arguing his 2003 conviction is not a categorical match to the generic federal offense of conspiracy and therefore falls outside the definition of “serious violent felony” in 18 U.S.C. § 3559(c)(2)(F) and 21 U.S.C. § 802(58).

The government agreed with Pemberton’s argument that Indiana conspiracy covers both “bilateral” and “unilateral” conspiracies.

But the government argued Pemberton forfeited his categorical-mismatch argument, contending the appellate court’s review is limited to whether the district court plainly erred.

The 7th Circuit first ruled that Pemberton did forfeit the objection.

“Nothing about Pemberton’s fact-based arguments in the district court alerted the judge and the government to the categorical-mismatch argument he now raises,” the per curiam opinion says.

Turning to whether the district court plainly erred in applying the enhancement, the 7th Circuit ruled Pemberton did not demonstrate plain error.

The question, the opinion says, is whether it is obvious that conspiracy under Indiana law in 2003 was broader than the federal definition of conspiracy.

The appellate court ruled that it is not obvious.

The 7th Circuit examined the generic federal definition of conspiracy in 1994, when Congress enacted the sentencing enhancement in question, in comparison to state law at the same time.

“When we examine the state of the law in 1994, we see signals that point in opposite directions for the generic meaning of conspiracy,” the opinion says, noting the historical evidence points toward a categorical mismatch.

On the other hand, the opinion continues, when the federal law was enacted, some states — Indiana included — adopted a unilateral approach to the theory of conspiracy, as opposed to a bilateral approach.

“This widening acceptance suggests that the generic federal definition of conspiracy may similarly include the unilateral theory,” the opinion says.

The opinion continues: “Against this backdrop, we conclude that the answer to whether Indiana’s definition of conspiracy is a categorical mismatch to the federal counterpart is unclear. Because state and federal authorities point in different directions, it is not obvious that the generic definition of conspiracy in 1994 either included or excluded the unilateral theory of conspiracy. And because it is not obvious, the district court did not plainly err in applying the enhancement for a ‘serious violent felony’ based on the 2003 Indiana conspiracy conviction.”

Pemberton also asked the 7th Circuit to delay its decision in the case because he might be eligible for relief through 18 U.S.C. § 3553(f), depending on how the U.S. Supreme Court rules in Pulsifer v. United States, No. 22-340.

“Because Pemberton has sought to preserve his argument for Supreme Court review, we deny his request to stay the case until the Court decides Pulsifer,” the opinion says.

The case is United States of America v. Anthony Pemberton, 21-3224.

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