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United States v. Williams

United States Court of Appeals, Seventh Circuit

July 23, 2019

United States of America, Plaintiff-Appellee,
v.
Joseph A. Williams, Defendant-Appellant.

          Argued July 9, 2019

          Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:16-CR-100-JD-MGG-1 - Jon E. DeGuilio, Judge.

          Before Kanne, Hamilton, and Scudder, Circuit Judges.

          HAMILTON, CIRCUIT JUDGE.

         Joseph Williams pleaded guilty to possessing a gun as a felon, 18 U.S.C. § 922(g)(1), and possessing cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). He appeals only his sentence, arguing that the district court erred by sentencing him under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based on three prior Indiana convictions: burglary, robbery, and dealing cocaine. He challenges the use of the cocaine conviction on two grounds. First, he says the record does not show just which statute he was convicted of violating. Second, he argues that Indiana's statute on dealing cocaine, Ind. Code § 35-48-4-1 (2006), is broader than the ACCA definition of a "serious drug offense." We disagree on both points and affirm the sentence under the ACCA.

         I. Factual and Procedural Background

         Police arrested Williams for selling cocaine and then found a gun in his pocket. After he pleaded guilty to federal firearm and cocaine charges, the government sought a sentencing enhancement under 18 U.S.C. § 924(e), which applies if the defendant has three prior convictions for violent felonies or serious drug offenses on three different occasions. The government offered evidence of Williams' three prior convictions for burglary, robbery, and dealing cocaine. For the cocaine conviction, the government established that the State of Indiana filed an information in 2007 charging Williams with a Class A Felony for "Dealing Cocaine." The information cited Indiana Code § 35-48-4-1 and two subsections. It also alleged that Williams knowingly or intentionally delivered cocaine within one thousand feet of a school. Williams pleaded guilty under a plea agreement to "the lesser included offense of Dealing Cocaine as a Class B Felony." The state court accepted Williams' plea of guilty to "the lesser included offense of Dealing Cocaine."

         The district court concluded that Williams was an armed career criminal under the ACCA, 18 U.S.C. § 924(e). The parties agree that Williams had two prior convictions for violent felonies. The ACCA enhancement depends on the cocaine conviction. The court determined that Williams' "Dealing Cocaine" conviction qualified as a predicate "serious drug offense." The court relied on the presentence report. It said, without any dispute from Williams, that the conviction for delivering cocaine qualified as a serious drug offense under the ACCA. With three qualifying convictions, Williams was an armed career criminal subject to a statutory minimum of fifteen years in prison. See 18 U.S.C. § 924(e)(1). The court calculated a Sentencing Guideline range of 210 to 262 months in prison based on offense level 32 and criminal history category VI. The judge found that this range likely overstated the seriousness of Williams' conduct and sentenced him to 188 months in prison.

         II. Analysis

         On appeal, Williams argues that the district court improperly enhanced his guideline range because his dealing-cocaine offense is not a predicate "serious drug offense" under the ACCA. The statute defines a "serious drug offense" to include crimes "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance." 18 U.S.C. § 924(e)(2)(A)(ii). Because Williams did not raise this issue in the district court, we review the enhancement for plain error. See Fed. R. Crim. P. 52(b); United States v. Lynn, 851 F.3d 786, 793 (7th Cir. 2017).

         Williams first contends that his conviction for dealing cocaine is not a predicate offense because the district court did not know which statute the Indiana court used to convict him. He concedes that he pleaded guilty to delivering cocaine, but he points out that the state court judgment refers only to the "lesser included offense of Dealing Cocaine" and does not cite a more specific statutory provision. Therefore, Williams reasons, the district court plainly erred in deciding that his statute of conviction meets the definition of a "serious drug offense" under the ACCA. We disagree for two independent reasons, one legal and one factual.

         First, as a matter of law, even assuming the state court documents were ambiguous, the ambiguity would not establish plain error. Williams did not object at sentencing to the court's reliance on this conviction as a predicate offense. Naturally, then, the parties did not put energy into building a thorough record on the issue. The court was entitled to accept the undisputed assertion in the presentence investigation report as a finding of fact. See United States v. Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir. 2010). Even if the documents may not resolve the issue beyond all reasonable doubt, this is plain-error review. It is the appellant's burden to show that an error actually occurred, not merely that an error might have occurred. United States v. Ramirez, 606 F.3d 396, 398-99 (7th Cir. 2010) (rejecting government's confession of error on plain-error review; in absence of objection in district court, record did not show definitively whether defendant's prior convictions qualified as crimes of violence under Sentencing Guidelines). On appeal, Williams points to no evidence suggesting that he was convicted of a crime other than § 35-48-4-1(a)(1)(C). See United States v. Meherg, 714 F.3d 457, 459 (7th Cir. 2013) (affirming ACCA sentence where defendant failed to come forward with evidence that PSR description of prior conviction was wrong); United States v. Black, 636 F.3d 893, 897 (7th Cir. 2011) (same under career-offender guideline).

         Second, as a matter of fact, the context here actually removes uncertainty about the nature of the Indiana conviction. The information charged Williams with delivering cocaine, and it cited Indiana Code § 35-48-4-1. Under Indiana's criminal code in effect in 2007, this statute had two subsections, both of which were also cited in the information. Subsection (a)(1)(C) defined the base crime-delivery of cocaine-as a class B felony. Subsection (b)(3) elevated that crime to a Class A felony if more facts were present, such as proximity to a school, which the information also alleged. Williams' plea of guilty to a "lesser included ... Class B Felony" means that this additional fact of school proximity was not applied; the crime of conviction thus was § 35-48-4-1(a)(1)(C).

         That brings us to Williams' second argument, that even if he was convicted under § 35-48-4-1, a conviction under it cannot be an ACCA predicate. Asserting that the statute is "indivisible" for purposes of applying the categorical approach under the ACCA, he argues its subsections collectively cover more than "serious drug offenses." He explains that another portion of the section criminalizes a person who "finances" an illegal drug trade. See Ind. Code § 35-48-4-1(a)(1)(D) (2006). By contrast, he continues, the ACCA definition does not cover financing; it covers state crimes "involving manufacturing, distributing, or possessing with intent to manufacture or ...


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