### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 20

- 1034
U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

N ATHANIEL R UTH , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Central District of Illinois

. No. 19

- cr

- 20005

— Michael M. Mihm
, Judge

.

____________________
A RGUED J UNE 3, 2020

— D ECIDED J ULY 20 , 2020

____________________

Before S YKES , Chief Judge , and B AUER and S T

. E VE , Circuit Judges

. S T

. E VE , Circuit Judge

. In what is becoming an all

- to o

- familiar subject , this appeal raises a question about whether a state drug statute sweeps more broadly than its federal counterpart because the former includes a particular isomer of a substance that the latter does not. Nathaniel Ruth pleaded guilty to federal gun and drug charges and received an enhanced sentence due to his prior Illinois conviction for possession with intent2 No. 20

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to deliver cocaine. The Illinois statute defines cocaine to include its positional isomers, whereas the federal definition covers only cocaine’s optical and geometric isomers. Ruth now appeals and claims that the district court erred in sentencing him because, using the categorical approach, the overbre adth of the Illinois statute disqualifies his prior conviction as a predicate felony drug offense . We agree and therefore vacate Ruth’s sentence and remand for resentencing. I. Background We can be brief in our summary of the facts because this appeal rais es challenges only to the application of sentencing enhancements, which present pure questions of law. In 2018, the Champaign, Illinois police department’s Street Crime Task Force used a confidential source to conduct multiple controlled buys of drugs from Nathani e l Ruth. That investigation came to a head on December 5, 2018, when officers surveilling Ruth pulled him over while driving and arrested Ruth for driving with a revoked license. During the arrest, Ruth told the officers that there was a firearm in the vehicle

.Officers subsequently executed a search warrant at Ruth’s residence and recovered 2.9 grams of crack cocaine, 5.6 grams ofpowder cocaine, a counterfeit $100 bill, $2,250 in U.S. currency, and various drug paraphernalia. A grand jury indicted Ruth on two counts: one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The government then filed an information pursuant to 21 U.S.C. § 851 notifying Ruth that it intended to rely on a prior conviction as a predicate felony drug offense to enhance his sentence. Namely, the government intended to use a 2006 IllinoisNo. 20

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conviction for possession of a cont rolled substance with intent to distribute, 720 ILCS 570/401(c)(2). The § 851 enhancement increased the statutory maximum sentence from twenty years in prison to thirty years. See 21 U.S.C. § 841(b)(1)(C). Ruth did not object to the government’s § 851 notice.
After ironing out a defect in the indictment
, Ruth eventually pleaded guilty to both counts without a plea agreement

.The probation office determined that Ruth was a career offender because at the time of the instant offense s , he had at least two prior felony convictions for controlled substance offenses. See U.S.S.G. § 4B1.1

. One of the prior convictions was the 2006 Illinois cocaine conviction noted above and subject of the § 851 enhancement , and the second was a 2010 Illinois conviction for poss ession with intent to deliver cannabis. Ruth’s resulting G uidelines range was 188 to 235 months’ imprisonment. Ruth objected to his classification as a career offender. He argued that his 2006 Illinois conviction was not a “controlled substance offense” u nder U.S.S.G. §§ 4B1.1 (a) and 4B1.2(b) because the Illinois statute he was convicted under, 720 ILCS 570/401(c)(2), is categorically broader than federal law andthus could not serve as a predicate felony controlled substance offense. Specifically, the Ill inois statute prohibits possession of positional isomers of cocaine whereas the federal Controlled Substance s Act does not. He similarly argued thatthe Illinois statute’s definition of cocaine “analog” was categorically broader than the federal definition of a controlled substance “analogue.” Despite his objections to the career offender designation , Ruth did not object to the § 851 sentencing enhancement based on the same 2006 Illinois conviction.4 No. 20

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The government responded, primarily, that a plain reading of the career

- offender guideline covered both federal and state definitions of controlled substance offenses. That is because the Guidelines, for purposes of the career offender enhancement, define a “controlled substance offense” as “an offense under fede ral or state law , punishable by imprisonment for a term exceeding one year, that prohibits

... the possessionof a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b) (em phasis added). The government alsodisputed Ruth’s arguments as to the Illinois statute’s divisibility and categorical breadth. The district court agreed with the government “that the wording of the guideline is such that I don ’ t think the analysis that de fense counsel has made is the one that truly applies”and overruled Ruth’s objection to the career offender enhancement. The court then sentenced Ruth to 108 months ’ imprisonment on each of Count One and Count Two, to be served concurrently. Ruth timely ap pealed.
II. Discussion Ruth challenges his sentence on two related grounds

— both concerning his 2006 Illinois conviction for possessionwith intent to deliver cocaine. First, Ruth argues that the district court erred in applying the 21 U.S.C. § 851 sentenc ing enhancement because his 2006 Illinois conviction does not qualify as a prior “felony drug offense

. ” And second, Ruth contends that the 2006 Illinois conviction is not a “controlled substance offense” under the Sentencing Guidelines and thus the
court e rroneously sentenced him as a career offender. As to both, his argument is principally the same: the Illinois statute is categorically broader than federal law. Though Ruth isNo. 20

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ultimately correct that the Illinois statute is broader and thus he is entitled to be resentenced without the § 851 enhancement , he is wrong that this conclusion applies equally to his Guidelines challenge to the career offender enhancement

. A. Predicate Felony Drug Offense Before sentencing, the government filed an informati on pursuant to 21 U.S.C. § 851 notifying Ruth of its intent to rely on his prior 2006 Illinois cocaine conviction as a qualifying predicate “felony drug offense” to enhance his sentence. Ruth did not object to the § 851 enhancement in the district court

an d thus forfeited the argument. Our review is for plain error only. Fed R. Crim. P. 52( b ).

1. The categorical approach Section 841(b)(1)(C) , the applicable penalty provision for Ruth’s instant federal cocaine conviction, provides that if a defendant has a “ prior conviction for a felony drug offense,” the statutory maximum term of imprisonment increases from twenty years’ imprisonment to thirty years’ imprisonment. 21 U.S.C. § 841(b)(1)(C). As used in the Controlled Substances Act, 21 U.S.C. § 801 et seq. , t h e term “felony drug offense”

means : an offense that is punishable by imprisonment for more than one year under any law of the United Statesor of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances. 21 U.S.C. § 802(44); c f. Burgess v. United States , 553 U.S. 124, 126 (2008) (“The term ‘felony drug offense’ contained in § 841(b)(1)(A)[]

... is defined exclusively by § 802(44)

.... ”).6 No. 20

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Each of the four catego ries of covered drugs is also separately defined in § 802. See 21 U.S.C. § 802(17) (defining “narcotic drugs”); id . § 802(16) (defining “marihuana”); id . § 802(41)(A) (defining “anabolic steroid”); id . § 802(9) (defining “depressant or stimulant substance” ). Relevant to this appeal, cocaine is a narcotic drug defined in § 802(17)(D), and is listed in the schedules of federally controlled substances at s chedule II(a)(4), id . § 812. To determine whether Ruth’s prior Illinois conviction is a “felony drug offen se” within the meaning of federal law, we apply the Taylor categorical approach. United States v. Elder , 900 F.3d 491, 497

– 501 (7th Cir. 2018) (citing Taylor v. United States , 495 U.S. 575 (1990))

. Under the categorical approach,
court s look solely to whether the elements of the crime of conviction match the elements of the federal recidivism statute. Id

. at 501. “If, and only if, the elements of the state law mirroror are narrower than the federal statute can the prior conviction quali fy as a predicate felony drug offense.” United States v. De La Torre , 940 F.3d 938, 948 (7th Cir. 2019)

. The Supreme Court recently clarified its categorical

- approach jurisprudence in Shular v. United States , 140 S. Ct. 779 (2020). There are “two categoric al methodologies,” depending on the statute at issue. Id . at 783. In the first categorical methodology , some statutes require “the court to come up with a ‘generic’ version of a crime

— that is, the elements of ‘the offense as commonly understood.’” Id . (quo ting Mathis v. United States , 136 S. Ct. 2243, 2247 (2016)). We will refer to t his first method as the generic

- offense method. The archetypal example is Taylor itself, which confronted the Armed Career Criminal Act’s “unadorned reference to ‘burglary’” and required the Court to “identif[y] the elements of ‘genericNo. 20

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burglary’ based on the ‘sense in which the term is now used in the criminal codes of most States.’” Id . (quoting Taylor , 495 U.S. at 598

– 99). The Court then matched the elements of the offense of conviction against those of the generic crime. Id

. The second categorical

- approach method, though, concerns statutes that do not reference a certain offense, but rather “some other criterion” as the measure for prior convictions. Id . The example given for this second methodology was where an immigration statute assigned consequences for a prior conviction for an offense that “involves fraud or deceit,” and the Court simply looked to whether the prior offense ’ s elements “necessarily entail fraudulent or dece itful conduct ” as the appropriate measure. Id . (quoting Kawashima v. Holder , 565 U.S. 478, 483

– 85 (2012)). We will call this second method the conduct

- based method.
In Shular, the Court held that the second categorical methodology

— the conduct

- based method

— applies to determining whether a state offense is a “serious drug offense” under the Armed Career Criminal Act (ACCA)
, 18 U.S.C. § 924(e)(2)(A)(ii) (defining “serious drug offense” as “an offense under State law, involving manufacturing, distributing, or p ossessing with intent to manufacture or distribute, a controlled substance”). The statute’s text and context convinced the Court that it undoubtedly described conduct , not names of generic offenses. Shular , 140 S. Ct. at 785. In contrast, ACC A’ s “violent f elony” provision refers to a crime that “is burglary, arson, or extortion,” which unambiguously names offenses. Id . Therefore, a prior conviction qualifies as a predicate “serious drug offense” and triggers § 924(e)(2)(A)(ii)’s sentencing enhancement when the predicate offense involved “the conduct of ‘manufacturing, distributing, or possessing with intent8 No. 20

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to manufacture or distribute, a controlled substance.’” Id . at 787.
The conduct

- based categorical approach applies here to § 841(b)(1)(C)’s sentencing enhancement. The term “felony drug offense” describes predicate offenses “that prohibit[] or restrict[] conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 2 1 U.S.C. § 802(44) (emphasis added) . This unquestionably refers to conduct and not generic offenses. The task is simple , then, and the court asks only whether the prior conviction’s elements necessarily entail the conduct identified in § 802(44). Indeed, e ven before Shular ’s clarification, this court already implicitly employed th e conduct

- based categorical methodology for similar “felony drug offense” sentencing enhancements. See , e.g. , United States v. Garcia , 948 F.3d 789, 793 (7th Cir. 2020); De La Torr e , 940 F.3d at 949; Elder , 900 F.3d at 497.

Here the government filed an information pursuant to 21 U.S.C. § 851(a) identifying Ruth’s prior state court conviction under 720 ILCS 570/401(c)(2). The Illinois statute makes it unlawful to possess with intent to deliver “1 gram or more but less than 15 grams of any substance containing cocaine, or an analog thereof.” 720 ILCS 570/401(c)(2). Illinois’s schedule of controlled substances defines cocaine as : Coca leaves and any salt, compound, isomer, salt of an i somer, derivative, or preparation of coca leaves including cocaine or ecgonine, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leavesor extractions of coca leaves which do not contain cocaine or ecgonine (for the purpose of this paragraph,No. 20

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the term “isomer” includes optical, positional and geometric isomers)[.] 720 ILCS 570/206(b)(4). For our purposes, the critical language is t he final phrase

— Illinois ’ s definition of cocaine includes optical, positional, and geometric isomers. Under federal law, cocaine is defined to include only its “optical and geometric isomers.” 21 U.S.C. § 812, Schedule II(a)(4); see also id

. § 802(14) (“As used in schedule II(a)(4), the term ‘isomer’ means any optical or geometric isomer.”); id . § 802(17)(D) (defining “narcotic drug” to include “[c]ocaine, its salts, optical and geometric isomers, and salts of isomers”). On its face, then, the Illinois stat ute is categorically broader than the federal definition. Despite the statutory mismatch, the government respondsthat the Illinois statute nonetheless “substantially corresponds” to the federal statute and thus is not overbroad. The argument finds its ro ots in Quarles v. United States , where the Supreme Court admonish ed that “ the Taylor Court cautioned courts against seizing on modest state

- law deviations from the generic definition of burglary ,” and held that the relevant question there was whether the state law “‘substantially corresponds ’ to (or is narrower than) generic burglary.” 139 S. Ct. 1872, 1880 (2019) (quoting Taylor , 495 U.S. at 602) . But Quarles , like Taylor itself, involved the ge neric

- offense method of the categorical approach that, when the statute at issue “refersgenerally to an offense without specifying its elements,” requires a court as a preliminary step to “define the offense so that it can compare elements, not labels.” S hular , 140 S. Ct. at783. This process of the court coming up with a generic version of a crime must allow for some margin of inconsequential discrepancy. Post

- Shular , however, it is clear that looking to10 No. 20

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whether the elements “substantially correspond” fal ls within a different categorical approach methodology and does not apply equally under the conduct

- based method at play here

. There are no minor deviations in offense elements to assess, only enumerated conduct.Flowing from its reliance on the “substantial correspondence” between the Illinois and federal statutes, the government next argues that there is no basis to conclude that positional isomers of cocaine exist in the drug trade. In support of its assertion , during sentencing in the district court , the government submitted an affidavit of a retired DEA research chemist, John Casale. According to Agent Casale, during his tenure at the DEA he analyzed over 50,000 cocaine samples from law enforcement evidentiary seizures and did not identify any positional isomers of cocaine in any of those samples. This may be so, but Agent Casale does not actually aver that positional isomers of cocaine do not exist. And that is an important distinction. I t is not the province o f the judiciary to rewrite Illinois’s statute to conform to a supposed practical understanding of the drug trade. This is particularly true herewhere the Illinois legislature purposefully included positional isomers of cocaine in its statute. Effective Ja nuary 1, 1984, the legislature added the word “isomer” to the definition of cocaine. People v. Godek , 487 N.E.2d 810, 812 n.3 ( Ill. 1986). Shortly thereafter, the legislature again amended the statute to expressly identify optical, positional, and geometri c isomers, as it appears today. See Act of Sept. 8, 1985, § 1, 1985 Ill. Laws 2288, 2292

– 93

. Though the government would haveus believe that Illinois’s inclusion of positional isomers of cocaine is “nothing but spilled ink , ” it was f ar from a potential drafting oversight

. Illinois went from generically prohibiting “isomers” to expressly identifying the precise types of cocaineNo. 20

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isomers it sought to proscribe. W e must give effect to the law as written.
We encountered nearly identical facts and ar guments in De La Torre , save for the drug at issue being methamphetamine and its isomers, and we reach the same outcome. 940 F.3d at 9 50

– 52

. Like there, the government offers theoretical challenges to positional isomers of cocaine but cannot avoid the ines capable conclusion that the plain language of the state statute categorically covers a larger swath of conduct than its federal counterpart. To be certain, in De La Torre we noted that we took no position on the scientific merits of the government’s isomer

- related arguments , nor do we her e. Id

. at 952 n.5. Although we left the door ajar for future science

based arguments , it was not an open

- ended invitation to argue that every isomeric mismatch is mere surplusage. There may be an occasion where a state statute covers unquestionably nonexistent conduct , but we do not need to predetermine how that analysis will look

. It is enough for us to say that

w here, as here, the state statute of conviction is plain and intentio nal, our job is straightforward : we compare the state
statute to the federal recidivism statute at issue and ask only if the state law is the same as or narrower than federal law.

2 . Divisibility of 720 ILCS 570/401(c)(2) Ruth is not quite out of the woods yet. Even if his state statute of conviction is overbroad
, the government urges that it is divisible . A statute is divisible if it “sets out one or more elements of the offense in the alternative.” Descamps v. United States , 570 U.S. 254, 257 (2013)

. If so, we can apply what has been dubbed the modified categorical approach and “consult a limited class of documents” to determine which alternative element of the statute formed the basis of Ruth’s 2006 Illinois12 No. 20

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conviction. Id .; Elder , 900 F.3d at 502. T he documents that a sentencing court may consult include the charging document, jury instructions, a written plea agreement, the transcript of a plea colloquy, or some comparable judicial record. Shepard v. United States , 544 U.S. 13, 20 (2005).

We start w ith the structure of the statute. Section 401 , in general , makes it “unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance ... , a counterfeit substance, or a controlled substanc e analog.” 720 ILCS 570/401. Subsections (a) through (i), and numerous subparts, then proceed toset forth various controlled substances and respective quantities that each constitute separate violations of the Illinois Controlled Substances Act resulting in different penalties. Subsection (c), in part, provides as follows: (c) Any person who violates this Section with regard tothe following amounts of controlled or counterfeit substances or controlled substance analogs, notwithstanding any of the provisi ons of subsections (a), (b), (d), (e), (f), (g) or (h) to the contrary, is guilty of a Class 1 felony. The fine for violation of this subsection (c) shall not be more than $250,000: (1) 1 gram or more but less than 15 grams of any substance containing hero in, or an analog thereof; (1.5) 1 gram or more but less than 15 grams of any substance containing fentanyl, or an analog thereof; (2) 1 gram or more but less than 15 grams of any substance containing cocaine, or an analog thereof;No. 20

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(3) 10 grams or more but less than 15 grams of any substance containing morphine, or an analog thereof;

... (11) 50 grams or more but less than 200 grams of anysubstance containing a substance classified in Schedules I or II, or an analog thereof, which is not otherwise included in this subsection. 720 ILCS 570/401(c). We pause here , though, to take a step back and clarify the relevant divisibility question . The government argues vaguely that the “ relevant subsection ” of the Illinois Controlled Substances Act is divisible. Though fa r from apparent, we think the government suggests merely that subsection (c) is divisible from the rest of section 401 overall

. The text makes clear that 720 ILCS 570/401 is generally divisible. The provision has almost a dozen subsections and dozens more subparts, each regulating different drugs in different quantities. Thegovernment would have us stop there at this topline divisibility and immediately examine Ruth’s Shepard

- approved documents to determine the specific conduct

— or here, substance

— underlying Ruth’s state court conviction. General
statute divisibility, however, is not enough. The modified categorical approach is just that: a modification of the categorical approach that simply acts as a “ tool for implementing the categorical approach .” Descamps , 570 U.S. at 262 . “ It retains the categorical approach ’ s central feature: a focus on the elements, rather than the facts, of a crime. ” Id . at 263. To put it more succinctly, the mo dified categorical approach helps a14 No. 20

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court find out which crime the defendant was convicted of when the statute lists several alternative crimes. Id . at 263

– 64.

No one disputes that Ruth was convicted under subsection (c)(2). So it does not matter for our purposes that the higher level subsections (a), (b), (c), and so on are divisible from each other

— we can place Ruth’s conviction in the more particular subdivision without recourse to any extra

- statutory Shepard documents. The only question that matters, t hen, is whether subsection (c)(2) is itself divisible. As we alluded to above, the government does not appear to argue that subsection (c)(2) is divisible, nor could it; the statutory provision is clearly indivisible. Section 401(c)(2) lists only one crime : possession with intent to distribute cocaine. Though the Illinoisstatute may define cocaine overbroadly, there is no uncertainty as to what statutory offense formed the basis of Ruth’s crime of conviction and our inquiry ends there. Ruth’s 2006 Illinois conviction under 720 ILCS 570/401(c)(2) is not a predicate “felony drug offense” that triggers 21 U.S.C. § 841(b)(1)(C)’s sentencing enhancement.
3. Plain error

Because Ruth’s 2006 Illinois conviction under 720 ILCS 570/401(c)(2) is not a predicate “felony drug offense” under his applicable federal penalty statute, 21 U.S.C. § 841(b)(1)(C) , the district court erred in sentencing Ruth with the statutory enhancement. To satisfy plain error review, however, the erro r must have been plain and must have affected Ruth’s substantial rights before we will exercise our discretion to correct it. See United States v. Olano , 507 U.S. 725, 732 (1993)

. And even then, we will exercise that discretion only if the error “seriously affect[s] the fairness, integrity or public reputation ofNo. 20

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judicial proceedings.” Id . at 736 ( quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). An error is plain if it is “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States , 556 U.S. 129, 135 (2009). That is to say that “while the error must be straightforward, it can be so in hindsight.” United States v. Caputo , 978 F.2d 972, 975 (7th Cir. 1992). The error must be plain,

“ but it needn ’ t be blatant.” Id

. After all, “plain

- error review is not a grading system for trial judges.” Henderson v. United States , 568 U.S. 266, 278 (2013). Though the parties missed the argument, they did not miss the core issue. Ruth objected to the career offender enhancement under the G uidelines based

on his 2006 Illinois conviction for the same cate gorical

- overbreadth reasons he now makes in relation to the § 851 sentencing enhancement

. That the precise issue and arguments were raised shows that the error was clear

. That no one recognized the additional application of the objection to his prior conviction does not render the error so imperceptible as to except it from review.
The error here affec ted Ruth’s substantial rights because the enhancement increased his G uidelines range. Without the § 851 enhancement, Ruth’s G uidelines range would have been 151 to 188 months. 1 The § 851 enhancement, which raised the statutory maximum sentence and thus inc reased his offense level, resulted in a higher G uidelines range of 188 to 2 35 months. Although the district court ultimately sentenced Ruth to 108 months’ imprisonment, below either G uidelines range, in the ordinary case the G uidelines range will “ anchor the court ’ s discretion in selecting an appropriate

1 This includes the career offender enhancement.16 No. 20

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sentence

. ” Molina

- Martinez v. United States , 136 S. Ct. 1338, 1349 (2016) . “ It follows, then, that in most cases the Guidelines range will affect the sentence. ” Id

. “We have repeatedly held that ‘ [ a ] sentencing based on an incorrect Guidelines rangeconstitutes plain error and warrants a remand for resentencing, unless we have reason to believe that the error in no way affected the district court’s selection of a particular sentence. ’ ” United States v. Martin , 692 F.3d 760, 766 (7th Cir. 2012) (quoting United States v. Farmer , 543 F.3d 363, 375 (7th Cir. 2008 ) )

. There is nothing in the sentencing transcript that would give us any reason to believe that the increased G uidelines range did not affect the district court’s chosen sentence. “ When a defendant is sentenced under an incorrect Guidelines range

— whether or not the defendant ’ s ultimate sentence falls within the correct range

— the error itself can, and most often will, be sufficient to show a reasona ble probability of a different outcome absent the error. ” Molina

- Martinez , 136 S. Ct. at 1345 . Because the plain Guidelines error here risks an unnecessary deprivation of Ruth’s liberty, and given “the relative ease of correcting the error,” Rosales

- Mireles v. United States , 138 S. Ct. 1897, 1908 (2018), leaving this error uncorrected would underm ine the “ fairness, integrity or public reputation of judicial proceedings.” Olano , 507 U.S. at 736. We therefore vacate Ruth’s sentence and remand.

B. Career Offender Enhancement
Ruth also contends that his 2006 Illinois conviction is not a “controlled sub stance offense” under the Guidelines and thus argues he was erroneously sentenced as a career offender as well. Ruth objected to the career offender enhancement at sentencing and preserved this challenge

. Whether a prior offense is a predicate controlled s ubstance offense under theNo. 20

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Guidelines is a question of law that we review de novo

. United States v. Tate , 822 F.3d 370, 375 (7th Cir. 2016)

.A defendant is a career offender if, among other requirements, “the defendant has at least two prior felony convict ions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). As used in the career

- offender guideline, t he term “controlled substance offense” is defined

as : an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufa cture, import, export, distribute, or dispense.
Id . § 4B1.2(b). The G uidelines do not further define “controlled substance,” so Ruth’s argument in this instance is premised on incorporating the federal Controlled Substances Act’s definition of controlled substance (and its schedules of enumerated substances ) into the career

- offender guideline

. See 21 U.S.C. § 802(6). Doing so would lead to the same result we reached above

— the Illinois statute covering positional isomers of cocaine is broader than the federal definition of cocaine and thus his 2006 conviction cannot serve as a predicate controlled substance offense.
The fatal flaw in Ruth’s logic is that the career

- offender guideline , and its d efinition of controlled substance offense
, does not incorporate , cross

- reference, or in any way refer to the Controlled Substances Act. This is significant. T he Sentencing Commission clearly knows how to cross

- reference18 No. 20

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federal statutory definitions when i t wants to. Indeed, in the very same definitional section for the career

- offender guideline, the Commission defined “crime of violence” to incorporate the definition of firearm from 26 U.S.C. § 5845(a) and “explosive material as defined in 18 U.S.C. § 841(c) .” U.S.S.G. § 4B1.2(a)(2). Elsewhere, § 2D1.1 of the G uidelines expressly provides that it applies to “ ‘ counterfeit ’ substances, which are defined in 21 U.S.C. § 802
, ” and tells us that “‘analogue,’ for purposes of this guideline, has the meaning giv en the term

‘ controlled substance analogue ’ in 21 U.S.C. § 802(32).” U.S.S.G. § 2D1.1 cmt. n n.4 & 6. Yet, n o such signal is anywhere in the career

- offender guideline ’s definition for controlled substance offense

. What is perhaps even more telling, when the Guidelines were first introduced, the Sentencing Commission defined the term “controlled substance offense” in the

career offender provision to mean “ an offense identified in 21 U.S.C. §§ 841, 952(a), 955, 955a, 959; §§ 405B and 416 of the Controlled Subs tance Act as amended in 1986, and similar offenses. ” U.S.S.G. § 4B1.2(2) (198 7 ). Shortly thereafter , the Commission amended the definition to what is substantially, and substantively, its current form, without any cross

- references. See id

. § 4B1.2(2) (1989). Ruth offers no compelling reason for us to now import the federal definition of controlled substance on our own.
We addressed a similar question in United States v. Hudson , whether , under the Sentencing Guidelines , crimes involving phony versions of illegal drugs are properly characterized as controlled substance offenses , and it guides us here. 618 F.3d 700, 701 (7th Cir. 2010). The defendant in that case was convicted of possession of a firearm by a felon under 18 U.S.C. § 922(g) and wa s subject to a sentencing enhancement under U.S.S.G. § 2K2.1(a)(4)(A) if he had a prior felony convictionNo. 20

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for a controlled substance offense. Id

. at 702. Section 2K2.1 of the G uidelines does not define “controlled substance offense,” but instead takes the “meaning given that term in § 4B1.2( b ) and Application Note 1 of the Commentary to § 4B1.2.” U.S.S.G. § 2K2.1 cmt. n.1. Turning to § 4B1.2 (b), we found that the “ definition lays out our guide

- posts: controlled

- substance offenses include state

- law offenses relatedto controlled or counterfeit substances punishable by imprisonment for a term exceeding one year.” Hudson , 618 F.3d at 703. But Hudson “was convicted of an Indiana offense related to a substance masquerading as a controlled substance, not under Ind iana’s law addressing counterfeit substances.” Id

. So it was not clear whether his prior conviction was an offense related to “counterfeit substances.” The guideline do es not define “counterfeit substance
, ” however, and we saw no reason to restrict the def inition “ to a particular state ’ s concept of what is meant by that term. ” Id . Instead, we looked more broadly to how the term is commonly understood and gave it its natural meaning

. Id

. Notwithstanding our conclusion in Hudson , Ruth instead points to our decision in United States v. Smith , 921 F.3d 708 (7th Cir. 2019), and asserts that we have already agreed with his reading of the G uidelines. In Smith , the defendant challenged whether “his conviction under Indiana’s ‘Dealing in cocaine or narcotic drug’ statute, Ind. Code § 35

- 48

- 4

- 1, is

... a predicate controlled substance offense under § 4B1.2(b) of the Guidelines.” Id . at 712. Though Smith applied the categorical approach to determine whether the elements of his prior conviction matched the generic versi on of the offense, we saidnothing about incorporating the federal Controlled Substances Act’s definition of “controlled substance” into the G uidelines. Rather, we were primarily concerned with20 No. 20

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whether the elements of the Indiana crime “match the Guideline s’ definition of a controlled substance: (1) possession (2) of a controlled substance (3) with the intent to distribute that substance.” Id . at 715

– 16. As to that, we found the elements easily matched. But in Smith we did not have the occasion to consider the question before us now. We recognize that a circuit split exists on this issue, and that the weight of authority favor s Ruth. As far as we are aware, the Second, Fifth, Eighth, and Ninth Circuits have all concluded that “controlled substance” in U.S.S.G. § 4B1.2 (b) refers to the federal definition

. Most recently, the Second Circuit applied the so

- called Jerome presumption that as a general rule “the application of a federal law does not depend on state law unless Congress plainly indicates otherwise.” United States v. Townsend , 897 F.3d 66, 71 (2d Cir. 2018) (citing Jerome v. United States , 318 U.S. 101, 104 (1943)). The co urt also found that Taylor and the Supreme Court’s subsequent categorical

approach cases “reinforce the idea that imposing a federal sentencing enhancement under the Guidelines requires something more than a conviction based on a state’s determination that a given substance should be controlled.” Id . For those reasons, the Second Circuit was “confident that federal law is theinterpretive anchor to resolve the ambiguity” over the definition of “controlled substance offense.” Id . “Any other outcome would all ow the Guidelines enhancement to turn on whatever substance ‘is illegal under the particular law of the State where the defendant was convicted,’ a clear departure from Jerome and its progeny.” Id

. Our colleagues on the Fifth, Eighth, and Ninth Circuits al l considered a different provision of the G uidelines and a different term , but applied the same basic reasoning. The NinthNo. 20

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Circuit held that the meaning of “drug trafficking offense” under U.S.S.G. § 2L1.2 “should not ‘depend on the definition adopted by t he State of conviction’” because it would be inconsistent with the principles underlying the Taylor categorical approach. United States v. Leal

- Vega , 680 F.3d 1160, 1166 (9th Cir. 2012); see also United States v. Gomez

- Alvarez , 781 F.3d 787, 793 (5th Cir. 2015) (adopting reasoning of Leal

- Vega for same guideline provision); United States v. Sanchez

- Garcia , 642 F.3d 658, 661 (8th Cir. 2011) (interpreting same guideline provision and using the federal Controlled Substances Act definition of “controlled substa nce”).
On the other side of the ledger are the Sixth and Eleventh Circuits

— albeit in unpublished opinions only. T he Sixth Circuit first addressed the issue in United States v. Smith , where the defendant “argue[d] that because the list of controlled substances criminalized under Illinois law [720 ILCS 570/401] includes a substance that is not prohibited under federal law, his prior convictions cannot serve as predicate controlled

substance offenses.” 681 F. App’x 483, 488 (6th Cir. 2017). T he Sixth Circuit disagreed : [B]ecause the Guidelines specifically include offenses under state law in § 4B1.2, the fact that Illinois may have criminalized the ‘manufacture, import, export, distribution, or dispensing ’ of some substances that are not crim inalized under federal law does not prevent conduct prohibited under the Illinois statute from qualifying, categorically, as a predicate offense. Smith’s prior convictions under 720 Ill. Comp. Stat. § 570/401(d) thus are predicate offenses.
Id

. at 489. Si mply, “there is no requirement that the particular controlled substance underlying a state conviction also be22 No. 20

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controlled by the federal government.” Id

. In a subsequent opinion, the Sixth Circuit reiterated Smith ’s holding and added that “[i]n crafting the federal sentencing Guidelines and substantive federal criminal laws, Congress was wellaware of the significant variations that existed in state criminal law.” United States v. Whitfield , 726 F. App’x 373, 376 (6th Cir. 2018). But see United States v. Pit tman , 736 F. App’x 551, 553 (6th Cir. 2018) (defining “controlled substance” in U.S.S.G. § 4B1.2(b) by reference to the Controlled Substance Act, 21 U.S.C. § 802(6), without citing Smith or otherwise providing any analysis or reasoning). And just recently, the Sixth Circuit recognized the circuit split on this question but explicitly “decline[d] to adopt the reasoning embraced by our sister circuits” in Townsend , Leal

- Vega , and Sanchez

- Garcia

. United States v. Sheffey , — F. App’x

— , 2020 WL 3495944, at *6 (6th Cir. June 29, 2020). Instead, the court continued to embrace Smith ’s reasoning and held that “the career offender enhancement ... does not limit its definition of controlled substance offense to specific federal violations.” Id

. W e think that the Sixth and Eleventh Circuit s have the better take of the issue. But we are not joining a side today; we have already staked out our position in Hudson

. Granted, in Leal

- Vega , the Ninth Circuit distinguished the reasoning of our Hudson decision as to the term “co unterfeit substance” because “[t]he word ‘ counterfeit ’ has a normal, everyday meaning that we all understand ,” whereas “[t]he same is not true of the word ‘controlled.’” Leal

- Vega , 680 F.3d at 1166

– 67 . “While the word ‘controlled’ may have a plain and ordi nary meaning, whether a substance is ‘controlled’ must, of necessity, be tethered to some state, federal, or local law in a way that is not true of the definition of ‘counterfeit.’” Id . at 1167. But none of theNo. 20

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reasoning in Hudson turned on the specific wo rd “counterfeit” having some sort of special independent, everyday meaning that sets it apart from other words. Indeed, that seems to draw an arbitrary line between how we interpret one term versus another term in the very same definition. We see no textua l basis to engraft the federal Controlled Substances Act’s definition of “controlled substance” into the career

- offender guideline.
The career

- offender guideline defines the term controlled substance offense broadly, and the definition is most plainly read to “include state

- law offenses related to controlled or counterfeit substances punishable by imprisonment for a term exceeding one year.” Hudson , 618 F.3d at 703. A controlled substance is generally understood to be “ any of a category of behavior

- altering or addictive drugs, as heroin or cocaine, whose possession and use are restricted by law .” Controlled substance , The Random House Dictionary of the English Language (2d ed. 1987)

. Given the natural meaning of a controlle d substance , Ruth’s 2006 cocaine conviction under Illinois law is a controlled substance offense according to the career

- offender guideline.
III. Conclusion Although t he district court properly sentenced Ruth as a career offender
, his G uidelines range was further elevated due to the increase in his statutory maximum sentence as a result of the erroneous § 8 51 sentencing enhancement

. Because the district court calculated an incorrect G uidelines range, we V ACATE Ruth’s sentence and R EMAND to the district
court for resentencing

.