United States v. Smith
Opinion of the Court
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 Guidelines. Smith maintains that one of those convictions-the one under Indiana's "Dealing in cocaine or narcotic drug" statute,
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
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.
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,
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.
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,
(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" the elements of the "generic" offense. Mathis v. United States , --- U.S. ----,
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.
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 ,
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
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.
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
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 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 ,
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 ,
The information describes Smith's charge in the following terms: "Smith ... did knowingly possess with intent to deliver 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
B. Modified Categorical Approach
Since Indiana Code § 35-48-4-1 is divisible, we apply the modified categorical approach. First, we review the Shepard -approved documents to understand of which crime and elements the defendant was convicted. See Mathis ,
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.
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).
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;
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, at ---- (citing Lopez v. Lynch ,
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 Recommendations," only the following "sentencing comments" appeared: "Judgment of conviction entered as lesser included dealing in cocaine/FB on Count I."
Reference
- Full Case Name
- United States v. Tom SMITH, III, also known as Thomas Smith, III
- Cited By
- 11 cases
- Status
- Published