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Seventh Circuit: Prior Conviction Under Overbroad State Drug Statute May Be Used in Career Criminal Enhancement But Not For Prior Drug Crimes Enhancement

An Illinois police task force found Nathaniel Ruth in possession of cocaine and a gun. He was indicted for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(l), and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 84l(a)(l), (b)(l)(C). The Government notified Ruth that it would be using a 2006 Illinois conviction for possession of a controlled substance (cocaine) with intent to distribute, in violation of 720 ILCS 570/40l(c)(2), to enhance his maximum sentence from 20 to 30 years under 21 U.S.C. § 84l(b)(l)(C). Ruth did not object.

The probation office used the same 2006 state drug conviction, along with another prior conviction, to determine that Ruth was a career offender subject to enhancement under U.S.S.G. § 4Bl.1. Ruth objected to the career offender classification on the grounds that the 2006 Illinois conviction was not a “controlled substance offense” under U.S.S.G. §§ 4B1.l(a) and 4B1.2(b) because 720 ILCS 570/40l(c)(2) is categorically broader than federal law and thus could not be a predicate felony controlled substance offense. He argued that the Illinois statute criminalized the possession of positional isomers of cocaine; whereas, the federal statute did not.

The trial court overruled Ruth’s objection, and Ruth pleaded guilty to both counts. The court determined a sentencing range of 188 to 235 months of imprisonment and sentenced him to 108 months. Ruth appealed, raising the issue of using the 2006 Illinois conviction in both enhancements.

The Seventh Circuit noted that it compares state drug statutes with similar federal drug statutes using the Taylor categorical approach to determine whether the state offense qualifies as a “felony drug offense” within the meaning of federal law enhancing sentences for prior felony drug offenses. United States v. Elder, 900 F.3d 491 (7th Cir. 2018) (citing Taylor v. United States, 495 U.S. 575 (1990)). To do this, the Court compares the elements of the state offense with the elements of federal statutes defining a similar offense. Elder. Its review of the § 851 enhancement was for plain error only since Ruth had not objected to that enhancement. The Court held that, because the state statute criminalizes possession of the positional as well as the geometric and optical isomers of cocaine while the federal statute criminalizes possession of only the optical and geometric isomers of cocaine, the state statute is broader than the federal statute. Therefore, the 2006 state conviction could not be used for prior offense enhancement. Further, it was plain error to do so in this case.

The same could not be said of the career offender enhancement as the federal Sentencing Guidelines contain no definition of “controlled substance,” the Court stated. Recognizing it was on the minority side of a circuit split, the Court reaffirmed that it had already determined that prior convictions for possession of a “controlled substance” used for career criminal enhancements are not restricted “to a particular state’s concept of what is meant by that term.” United States v. Hudson, 618 F.3d 700 (7th Cir. 2010). Therefore, it upheld the use of the 2006 Illinois conviction for career criminal enhancement but not for prior drug offense enhancement.

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Related legal case

United States v. Ruth



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