July 9, 2019
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.
Kanne, Hamilton, and Scudder, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
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.
Factual and Procedural Background
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."
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.
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.
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
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
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).
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 ...