### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 20-1725
O TIS R. E LION , P etitioner -Appellant ,

v.
U NITED S TATES OF A MERICA , Respondent -Appellee

.

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

. No. 3:17

- cv
- 01349 — J. Phil Gilbert , Judge

.

____________________
A RGUED J ANUARY 19, 2023

— D ECIDED A UGUST 7, 2023

____________________

Before B RENNAN , S CUDDER , and K IRSCH , Circuit Judges

. B RENNAN , Circuit Judge

. After Otis Elion pleaded guilty to distributing methamphetamine, a federal district court sentenced him as a career offender under U.S. Sentencing Guideline § 4B1.1. Elion’s attorney did not challenge that designation , and the court imposed a 167

- month prison term. Through a motion under 28 U.S.C. § 2255, Elion argues his attorney ’s failure to object amounts to ineffective assistance. The district court denied relief, concluding that Elion was2 No. 20-1725

properly sentenced as a career offender a nd , therefore, did not suffer prejudice from counsel’s performance

. Though we commend the district court for it s close and careful analysis, after our application of the categorical approach , we conclude that Elion does not qualify as a career offender . So , we reverse the denial of Elion’s § 2255 motion and remand for an evaluation of counsel’s performance

. I
AIn 2017, Elion pleaded guilty to three counts of distributing methamphetamine in violation of 21 U.S.C. § 841(a) (1) and (b)(1)(C). Because Elion had prior state and federal drug

related convictions, the United States Probation Office classified him as a career offender. See U.S.S.G. §§ 4B1.1 (a) , 4B1.2 (b)

. That designation yielded a heightened Guideline s range, which the Probation Office identified as 151 –188 months. 1 Elion’s attorney did not challenge this enhancement , and the district court adopted the Presentence Investigation Report without modification. Elion timely appealed his sentence, but his a ttorney moved to withdraw under Anders v. California , 386 U.S. 738 , 744 (1967) . Elion voluntarily dismissed his consolidated direct appeal s i n September 2017. Then in December 2017, Elion filed a pro se motion in the district court to vacate, set aside,

or correct his sentence under 28 U.S.C. § 2255. In his motion

1 We agree with the parties that w ithout the § 4B1.1 enhancement, Elion’s criminal history category would have been V rather than VI, and his total offense level would have been 21 instead of 29. Per t he 2016 Sentencing Table, which applied at the time, those metrics yield a Guidelines range of 70

– 87 months.No. 20-1725 3

Elion argued that h ad trial counsel objected to the career offender designation at sentencing , he would have received a lower Guideline s range and a much- reduced sentence.
Under Guideline § 4B1.1 (a), a federal defendant qualifies as a career offender, and likely faces an elevated Guideline s range , if: (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instan t offense ofconviction is a felony that is either a crime of violence or a controlled substance offense; and (3)the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense

. U.S.S.G. § 4B1.1(a). E lion was over 18 when convicted of the 2017 felony methamphetamine charges, so a ll agree he satisfies the first two requirements. Elion’s arguments focus entirely on the third requirement : whether he has at least two prior convictions for controlled substa nce offense s. A controlled substance offense under § 4B1.1(a) is :an offense under federal or state law, punishable by imprisonment for a term exceeding oneyear, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or thepossession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.4 No. 20-1725

U.S.S.G. § 4B1.2(b). The Presentence Investigation Report identified three of Elion’s prior convictions as controlled substance offenses

. 1. A 1999 Illinois conviction for unlawful delivery of a look

- alike substance within 1,000 feet of public housing property , in violation of 720 I LL

. C OMP

. S TAT . 570/407(b)(3).

2. A 2000 Illinois conviction for unlawful delivery of a look

- alike substance , in violation of 720 I LL

. C OMP

. S TAT . 570/404(b).

3. A 2006 federal conviction for distribution of a cocaine base , in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). 2 Elion argues that neither the 1999 n or the 2000 Illinois conviction is a controlled substance offense , and he asserts constitutionally sufficient counsel would have recognized as much. Reviewing Elion’s § 2255 motion, the district court concluded that Elion’s 2006 federal conviction and at least his 2000 Illinois conviction qualif y as controlled substance offenses . Those determinations meant Elion was properly sentenced as a career offender and could not prevail on h is ineffective assistance c laim

. See Strickland v. Was hington , 466 U.S. 668, 68 7 (1984) ( requiring a showing of prejudice for

2 Elion rightly points out that 1999, 2000, a nd 2006 refer to the years when the offenses occurred, not the dates of his convictions. But the parties and the district court used those dates, so we do as well

. We also recognize that the Presentence Investigation Report inaccurately suggests that Elion’s 2000 Illinois conviction w as for a 720 I LL

. C OMP

. S TAT

. 570/407 violation. As the parties now note , that conviction was for violating 720 I LL

. C OMP

. S TAT

. 570/404(b).No. 20-1725 5

ineffective assistance of counsel)

. Still, t he district court granted Elion’s certificate of appealability, and he timely appealed. We recruited counsel to act as amicus curiae and to make written and oral arguments on Elion’s behalf. 3 If we were considering Elion’s sentencing arguments ondirect review, the question for this court would be straightforward: Does Elion qualify as a career offender under Guideline § 4B1.1 (a) ? But Elion’s case arrives by way of his § 2255 motion for ineffective assistance of counsel. Accordingly, we outline Elion’s route to potential relief before examining the merits of his arguments. In relevant part, 28 U.S.C. § 2255 authorizes a prisoner i n federal custody to challenge his sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255 (a)

. Here, Elion claims a Sixth Amendment violation

— he argues that he was denied effe ctive assistance of counsel at sentencing

. See generally Strickland , 466 U.S. at 685 –86 ; see also Lafler v. Cooper , 566 U.S. 156, 165 (2012) (explaining that Strickland applies to counsel’s representation at sentencing)

. To prevail on this claim, Elion mus t satisfy two components. H e “must show that counsel’s performance was deficient.” Strickland , 466 U.S. at 687. Deficient performance turns on whether “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. He must also “ show that the deficient performance prejudiced the defense.” Id. at 687. To establish prejudice, “ [Elion] must show that there is a reasonable probability

3 The court than ks Aaron Z. Roper, Esq., and Claire R. Cahill, Esq., ofWilliams & Connolly LLP for serving as amicus curiae and providing exceptional assistance. For simplicity, we attribute all arguments to Elion.6 No. 20-1725

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different .” Id. at 694. As the district court correctly recognized, Elion can show prejudice only if he should not have been sentenced as a career offender. So , we start by analyzing the applicability of Guideline § 4B1.1 (a)

. BTo determine whether Elion’s previous Illinois convictions qualify as controlled substance offenses for Guideline § 4B1.1 (a) , we must apply the categorical approach. United States v. Smith , 921 F.3d 708, 712 (7th Cir. 2019); see also Mathis v. United States , 579 U.S. 500 (2016); Shepa rd v. United States , 544 U.S. 13 (2005); Taylor v. United States , 495 U.S. 575 (1990). The categorical approach is essentially a matching exercise : W e look to see whether the Guideline s definition of controlled substance offense is broad enough to encompas s the elements of Elion’s statutes of conviction

. Smith , 921 F.3d at 712 ; United States v. Carter , 961 F.3d 953, 956 (7th Cir. 2020). “If the elements of the crime of conviction are the same as, or narrower than, the elements of the ” Guidelines offense , “t he crime of conviction qualifies as a predicate offense.” Smith , 921 F.3d at 712 (citation omitted). And, under this approach, we focus solely on the statute of conviction’s elements, not the facts of the defendant’s conduct. Mathis , 579 U.S. at 504.
The a nalysis is straightforward when the Guidelines offense is broad enough to include all the elements of the statute of conviction. See i d. at 504 –05. But the inquiry is more complex if one or more elements of the statute of conviction is broader than the elements of the Guidelines offense

. Id. Then , we must determine whether the statute is “divisible.” Id. at 505–06.No. 20-1725 7

A statute is divisible if, rather than defining a single set of eleme nts for a single crime, it defines multiple crimes by “list[ing] elements in the alternative.” Id. at 505. When a statute is divisible, we can use the “modified categorical approach” and scrutinize certain record documents “to determine what crime, with what elements, [the] defendant was convicted of.” Id. at 505– 06; Shepard , 544 U.S. at 26. With the precise elements of conviction identified , we “can then compare that crime ... with the relevant ” Guidelines offense

. Mathis , 579 U.S. at 506. If the elem ents of that crime fall within the coverage of that offense , then there is no mismatch, even if the same statute lists other offenses with broader elements. Id. at 505 –06. By contrast, i f a prior statute of conviction is both broader than the Guideline s off ense and indivisible, then our work end s. Such a prior conviction cannot serve as a predicate offense even if the Guidelines offense covers the facts of the defendant’s actual conduct. See Bridges v. United States , 991 F.3d 793, 800 (7th Cir. 2021) (citation omitted) (“The categorical method presumes that a conviction rests on the least serious acts that would satisfy the statute, regardless of the offender’s actual conduct.”); Descamps v. United States , 570 U.S. 254, 261, 265 (2013). Using that framework, the district court compared 720 I LL

. C OMP

. S TAT

. 570/404(b) , the statute for Elion’s 2000 conviction, to the Guidelines controlled substance offense. Though the
court found that 720 I LL

. C OMP

. S TAT

. 570/404(b) punishes conduct more broadly than the Guideline s offense, it concluded the Illinois statu t e is divisible. From there, the court used the modified categorical approach to determine that Elion ’s 2000 conviction was for “ distribution ” of a look

- alike substance. The Guideline s controlled substance offense also covers8 No. 20-1725

“ distribution ,” so the court held that Elion was properly sentenced as a career offender

. We review the district court’s denial of Elion’s § 2255 motion de novo. Delatorre v. United States , 847 F.3d 837, 843 (7th Cir. 2017).
II
A We begin by confirming the relationship between Elion’s
two Illinois convictions , a point on which the parties agree . As indicated, Elion has one conviction for violating 720 I LL

. C OMP

. S TAT

. 570/404 (b) in 2000 and one for violat ing 720 I LL

. C OMP

. S TAT

. 570/407 (b)(3) in 1999

. For purposes of the categorical approach, however, we need only examine the fit between 720 I LL

. C OMP

. S TAT

. 570/404(b)—w hich we refer to as the Illinois “ look

- alike statute” —a nd the Guidelines controlled substance offense

. Elion’s 1999 statute of conviction, 720 I LL

. C OMP

. S TAT

. 570/407(b) (3) , is just an enhancement statute —it elevates sanctions for offenders who commit enumerated offenses in certain locations. All agree the underlying offense f or Elion’s 1999 conviction was a violation of the look

- alike
statute near public housing. In essence, this means Elion was convicted of committing the look

- alike statute’s elements twice

— once outright in 2000 , and once in addition to a locational element i n 1999

. As the government acknowledges, this returns the focus of the categorical approach to the look

- alike statute’s elements

. See United States v. Lynn , 851 F.3d 786, 796

– 97 (7th Cir. 2017) ; United States v. Ruth , 966 F.3d 642, 649 –50 (7th Cir. 2020). If the look

- alike statute criminalizes conduct more broadly than the Guideline s controlled substanceNo. 20-1725 9

offense , and is not divisible, then neither of Elion’s conviction s count towards his career offender status.

B
W e now use the categorical approach t o examine the fit between the Illinois look

- alike statute and Guideline § 4B1.1 (a)

. The look

- alike statute makes it “unlawful for any person knowingly to manufacture, distribute, advertise, or possess with intent to manufacture or distribute a look

- alike

s ubstance .” 720 I LL

. C OMP

. S TAT

. 570/404(b) (emphasis added). By comparison, the Guidelines controlled substance offense

covers , in relevant part, “the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit subs tance ).” U.S.S.G. § 4B1.2(b) (emphasis added)

. Like the district court, we start with whether the term look

- alike substance in the Illinois statute has the same or narrower meaning as the term counterfeit substance in Guideline § 4B1. 2(b)

. If the term look

- alike substance encompasses a broader range of substances than the term c ounterfeit substance, then Elion’s Illinois conviction s cannot qualify as controlled substance offense s. Elion believes th e two terms have different meanings , arguing t hat c ounterfeit substance refers to a n arrower set of substances

. Specifically, he asserts that the plain meaning of counterfeit substance contains an intent component . Quoting United States v. Hudson , 618 F.3d 700, 703 (7th Cir. 2010), he says a counterfeit substance is a substance “ (1) ‘ made in imitation of something else ’ (2) ‘ with intent to deceive. ’” He then argues that Illinois’s statutory definition for look

- alike substance 4 contains no corresponding intent to deceive

4 Look

- alike substance is defined as:10 No. 20-1725

component. So, the Gui delines ’ narrower , intent

- focused meaning of counterfeit substance cannot match the broader meaning of look

- alike substance

. The district court partially agreed with Elion, concurring that the plain meaning of counterfeit substance includes an intent to de ceive component. But the district court still found no categorical mismatch because , unlike Elion, it discerned an intent to deceive component in the look

- alike substance definition

. For reasons explained below , we need not conclusively resolve this dispute. 5 Still , we recognize the ongoing debate in this area, so we m ake a few observations. Because the United State s Sentencing Commission ha s not supplied a definition for counterfeit substance, we must give the term its plain meaning. See Ruth , 966 F .3d at 652 (citation omitted)

.

[A] substance, other than a controlled substance which (1) by overall dosage unit appearance, including shape, color, size, markings or lack thereof, taste, consistency, orany other identifying physical characteristic of the substance, would lead a reasonable person to believe that the substance is a controlled substance, or (2) is expressly or impliedly represented to be a controlled substance or isdistributed under circumstances which would lead a reasonable person to believe that the substance is a controlled substance

. 720 I LL

. C OMP

. S TAT

. 570/102(y).

5 Elion asks us to resolve this issue even if we hold for other reasons that he is not a career offender. He argues that an answer to this question will aid the district court’s evaluation of deficien t performance on remand. We decline to do so. On remand, the district court will examine the performance prong in the first instance. The potential mismatch between counterfeit and look

- alike substance m ay , but need not necessarily, factor into that analysis

.No. 20-1725 11

Dictionary entries are often helpful for that exercise. Indeed, when searching for the plain meaning of counterfeit in Hudson , this court referenced a dictionary entry that defi ned counterfeit as “made in imitation of somethi ng else with intent to deceive; forged.” 618 F.3d at 703 (quoting Counterfeit , M ERRIAM -W EBSTER ’ S C OLLEGIATE D ICTIONARY 285 (11 th ed. 2005)). The Eighth Circuit took a comparable approach in United States v. Robertson , 474 F.3d 538 (8th Cir. 2007) , while examining the same two terms now at issue

— look

- alike substance and counterfeit substance. Also relying on dictionary
entr ies , that court held that the term counterfeit substance contains an intent component. Id. at 541. Given Hudson and Robertson , we understand why Elion and the district court identif y an intent requirement in the term counterfeit substance. Still, the issue is complex

. Dictionary entries vary in the meaning they ascribe to counterfeit, with some

— but not all

— suggesting intentional d eception is part of the plain meaning of counterfeit. Compare Counterfeit , M ERRIAM -W EBSTER ’ S C OLLEGIATE D ICTIONARY at 285 (defining counterfeit as “made in imitation of something else with intent to deceive”) , with Counterfeit , W EBSTER ’ S T HIRD N EW I NTERNAT IONAL D ICTIONARY 519 (1986) (defining counterfeit as “spurious; not genuine or authentic”). As such , in the future the plain meaning of counterfeit substance warrants careful consideration, especially because the definition of the term likely impact s the scope of Guideline § 4B1.1 (a) ’s applicability

. But th e issue is not dispositive here , so we need not resolve it

. Elion prevails for an unrelated reason, which we turn to next.12 No. 20-1725

C Beyond differing terminology , Elion also argues that the elements of the I llinois look

- alike statute punish conduct more broadly than does the Guidelines controlled substance offense . Recall that the look

- alike statute makes it “unlawful for any person knowingly to manufacture, distribute, advertise , or possess with intent to manufacture or distribute a look

alike substance.” 720 I LL

. C OMP

. S TAT

. 507/404(b) (emphasis added) . By comparison, a controlled substance offense is “an offens e ... that prohibits the manufacture, import, export, distribution, or dispensing of a controlled su bstance (or a counterfeit substance) ” or possession with intent to do the same. U.S.S.G. § 4B1.2(b). Juxtaposing those provisions reveals an outlier

— Illinois punishes advertisement while the controlled substance offense does not

. The government disagrees. It argues that a defendant cannot violate the look

- alike statute by merely marketing an il legal substance; instead, he must offer the substance for sale and intend to sell or distribute the substance

. That additional intent to sell requirement , says the government, makes “advertise” synonymous with attempted distribution. The controlled substance offense covers attempted distribution so, in the government’s view , there is no categorical mismatch. See U.S.S.G. § 4B1.2; id. at cmt. n.1 (establishin g that controlled substance offense includes attempt). The government cites United States v. Thomas , 886 F.3d 1274, 1276 (8th Cir. 2018), and other out

- of

- circuit case law in support of this position. See id. (explaining that “a state law must require something more than a mere offer to sell,” such as a “bona fide offer showing intent” for it to qualify as a controlled substance offense).No. 20-1725 13

To test the government’s thesis, we start with the term advertise , which Illinois defines as “the attempt , by publication, dissemination, solicitation or circulation, to induce directly or indirectly any person to acquire, or enter into an obligation to acquire, any substance within the scope of this Section.” 720 I LL

. C OMP

. S TAT . 570/404(a)(1). Th at definitio n uses the verb “induce”

— not “distribute” or “sell.” And, c ontrary to the government’s argument that “ [i] nducing a person to acquire is just a longer way of saying ‘sell’ or distribute,” those words as used by Illinois have different meanings. Comparing th e terms “distribute” and “induce” shows this. For purposes of the look

- alike statute, Illinois defines “distribute” as “the actual, constructive or attempted transfer of possession of a controlled substance.” 720 I LL

. C OMP

. S TAT

. 570/102(h), (r). “ Induce ” lacks a statutory definition, but its plain meaning is different than the definition assigned to distribute . An individual can “by publication, dissemination,solicitation or circulation,” induce another to acquire a substance without ever personally attem pting to transfer possession of that substance , as the definition of distribute requires

. 720 I LL

. C OMP

. S TAT

. 570/404(a)(1); s ee also Induce , O XFORD E NGLISH D ICTIONARY (2d ed. 1989) (“To lead (a person), by persuasion or some influence or moti ve that acts upon the will, to ... some action, condition, belief, etc.”)

. As such, thegovernment’s contention that an advertising offense necessarily involves the advertiser attempting to distribute or sell the substance he is advertising lacks textual support. The go vernment directs us to People v. American Daily Publishing Co. , 481 N.E.2d 859, 860 (Ill. App. Ct. 1985). There, a defendant newspaper published “an advertisement for diet pills placed by a third party.” Id. The State charged the14 No. 20-1725

newspaper with “having knowingly advertised” the diet pills, a look

- alike substance. Id. The trial court dismissed the information , and the state appellate court affirmed. Id. On appeal, the court concluded that advertising and publishing are distinct activities with different meanings. Id. at 860

– 61. One can publish content without inducing another to acquire a look

- alike substance an d, as the court explained, the newspaper also “had no pecuniary interest in the sale of the pills.” Id. at 861. It had “no supplies from which to fill orders and it was not a conduit for the sale of the pills.” Id. The government reads American Daily Publi shing as confirming that an individual cannot be convicted of advertising under the look

- alike statute unless he intends to sell an illegal substance

. For the government, it was the publishing newspaper’s lack of intent to sell that insulated it from liabi lity. We see it differently. The state court in that case did not hold that an individual only advertises a look

- alike substance if he intends to sell or distribute that substance . Rather, the court more narrowly conclude d that “ publishing ” is a distinct

a ction from “ advertising. ” Id. at 860 –61. The defendant newspaper may have published the advertisement at issue but , in doing so, it “did nothing of its own volition to induce anyone to buy the pills.” Id. at 861 (emphasis added)

. To emphasize this point, the court explained that the newspaper had no stake in the diet pills, no role in filling orders, and no business relationship with the advertiser apart from the ad vertisement

. Id. A t no point , though, did the court ascribe an “attempted distributio n” or “intended sale” requirement into the statute. Nor did the court suggest that “induce” is synonymous with distribute or sell.No. 20-1725 15

To read the Illinois look

- alike statute as the government urges would also render language in the statute superfluous. Namely , Illinois already criminalizes attempt in 720 I LL

. C OMP

. S TAT

. 5/8-4 , and the look

- alike statute already criminalizes distribution. 720 I LL

. C OMP

. S TAT

. 570/404(b). So, even if the term advertise were excised from the statute, attempted distribution of a look

- alike substance is still a crime . The government tries to counter this point by arguing for “belt and suspenders” drafting

— they suggest Illinois added the redundant term advertise to match the statute’s preamble and to clarify that the statute address es a particular concern. W e arenot persuaded. Advertise is an independent word in the statute , and its definition uses the term induce, not sell or distribute. Given this, we decline to read advertise as merely restating , in n arrow er terms, what other statutory language already

covers. For these reasons, the look

- alike statute’s inclusion of advertise means it punishes a broader range of conduct than the Guidelines controlled substance offense. Unless the statute is divisible, Elion cannot q ualify as a career offender.
III
A
Because the Illinois look

- alike statute covers more conductthan the Guidelines controlled substance offense, we must examine whether the statute is divisible. Ruth , 966 F.3d at 648

– 49 . If it is, then we may turn to the m odified categorical approach to discern Elion’s particular offense of conviction. Id.
A criminal statute that can be violated in more than one way is sometimes phrased with alternatives. When scrutinizing an alternatively phrased statute , such as the Illin ois look

-16 No. 20-1725

alike statute, our first task is “to determine whether its listed items are elements or means.” Mathis , 579 U.S. at 517. “Elements are the constituent parts of a crime’s legal definition

—the things the prosecution must prove to sustain a convictio n.” Id. at 504 ( cleaned up ). By comparison, factual means “are ‘circumstances’ or ‘events’ that need not be specifically proven.” Parzych v. Garland , 2 F.4th 1013, 1017 (7th Cir. 2021) (citing Mathis , 579 U.S. at 504). The Supreme Court in Mathis set a roa dmap for discerning between elements and means. 579 U.S. at 517. W e start by checking if a state court decision answers the divisibility question. If the state’s highest court has previously ruled on the divisibility of the relevant statute, then we simply apply that decision. Id. at 517 –18. We have also held that “reliance on a state intermediate court decision is appropriate in the absence of a decision from the State’s highest court or a co mpelling reason to think the highest court would disagree with the intermediate decision.” United States v. Garcia , 948 F.3d 789, 793 (7th Cir. 2020).
But when no state court decision answers the divisibility question , we turn to the statute itself. Mathis identifies two textual clues as dispositive. Mathis , 579 U.S. at 518. “[A] statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means).” Id. And “[i]f statutory alternatives carry different punis hments, then under Apprendi they must be elements.” Id. ; see Apprendi v. New Jersey , 530 U.S. 466, 490 (2000). Statutes that merely identify “illustrative examples,” by contrast, recite means of commission, not elements. Mathis , 579 U.S. at 518 (quoting United States v. Howard , 742 F.3d 1334, 1348 (11th Cir. 2014)).No. 20-1725 17

If neither the state’s highest court nor the statute ’s text resolve divisibility, “federal judges have another place to look: the record of a prior conviction itself.” Id. At this step, we pee kat the record documents, such as the indictment and “correlative jury instructions” for the limited purpose of discerning between elements and means. Id. at 518 –19. Our focus remains on the divisibility of the statute, and “review of the record is truly limited because if by peering into the record the sentencing court learns that the listed items are means, thecourt must cease further consideration of the record and return to strictly applying the categorical approach.” Smith , 921 F.3d at 713 (citing Ma this , 579 U.S. at 518–1 9). If, using these tools, we conclude the Illinois look

- alikestatute is divisible, then we can deploy the modified categorical approach. Mathis , 579 U.S. at 517. E ssen tially , the modified categorical approach allows us to discern w hich of a statute’s divisible offense s the defendant was convicted of committ ing . To apply the modified categorical approach, we“look[] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to det ermine what crime, with what elements, [the] defendant was convicted of.” Id. at 505

– 06. We “then compare that crime, as the categorical approach commands, with the relevant ” Guidelines offense. Id. at 506. Elion argues the Illinois look

- alike statute is i ndivisible. For him, “section 404(b)’s ‘manufacture, distribute, advertise, or possess with intent’ are best read as indivisible means of committing a single offense, not divisible elements of distinct offenses.” The government sees it differently. Relying mainly on Elion’s record of conviction, the government asserts that18 No. 20-1725

the look

- alike statute lists elements in the alternative and is divisible.

B The Illinois Supreme C ourt has not resolved the divisibility of the look

- alike statute, so we turn to intermediate state appellate court decisions. Elion rightly identifies that some of those decisions refer to look

- alike statute convictions as convictions for “manufactur ing or deliver ing ” a lookalike substance. See, e.g. , People v. Moore , 2016 IL App (2d) 140614 -U, ¶ 5; In re Tajannah O. , 8 N.E. 3 d 1258, 1261 (Ill. App. Ct. 2014). Those “passing references,” says Elion, show that the Illinois statute recites alternative means, n ot elements. While we agree that those decisions hint at indivisibility, they are not dispositive

. As Elion concedes, the cited cases mention “manufacture or delivery” only in passing and do not directly opine on whether the look

- alike statute is divisibl e. We decline to put too much weight on language that does
not squarely address the relevant issue, especially when most of those decisions are unpublished. See Najera

- Rodriguez v. Barr , 926 F.3d 343, 355 (7th Cir. 2019) (quoting Mathis , 519 U.S. at 517) (“ Mathis directs us to look for a ‘state court decision that definitively answers the question’ ... not to construct our own patchwork theory of state statutory elements through apastiche of dicta in cases that do not address the issue directly.”).
C
Given the la ck of dispositive state case law, we must turn to the look

- alike statute’s text

. Mathis , 579 U.S. at 518. The different components of the Illinois look

- alike statute all share one punishment, 720 I LL

. C OMP

. S TAT

. 570/404(b), so weNo. 20-1725 19

cannot resolv e divisibility on that basis. Mathis , 579 U.S. at 518. The statute also does not “identify which things must be charged ... and which need not be.” Id. So, the two dispositive clues for divisibility are not present. That means we must scrutinize the look

- ali ke statute more broadly. See Najera

- Rodriguez , 926 F.3d at 350–52 (examining “text and structure”). Both parties identify textual evidence as supporting their preferred position s. But b efore we consider those arguments, we recall the relevant portion of th e look

- alike statute : “It isunlawful for any person knowingly to manufacture, distribute, advertise, or possess with intent to manufacture or distribute a look

- alike substance. Any person who violates this subsection (b) shall be guilty of a Class 3 felon y, the fine for which shall not exceed $150,000.” 720 I LL

. C OMP

. S TAT

. 570/404(b). Looking to that text , Elion highlights the singular article “a” used in the phrase “a Class 3 felony.” For Elion, that means the different verbs all culminate in a single , indivi sible crime. Yet, as the government points out, the statute’s construction cuts both ways. The loo k- alike statute lists the different components in the disjunctive , s o it would make sense for th e second sentence to use a singular “a” whether the preceding list identifies elements or means. Given the viability of both readings, the statute’s text and st ructure do not resolve the question of divisibility. Viewing things more broadly , both parties ask us to compare the Illinois look

- alike statute to similar federal or state statutes. Elion offers Illinois’s first

- degree murder statute, 720 I LL

. C OMP

. S TAT

. 5/9- 1(a), Illinois’s theft statute, 720 I LL

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. S TAT

. 5/16- 1(a), and part of the Federal Controlled Substances Act, 21 U.S.C. § 841(a)(1), which have all been held indivisible. See People v. Cooper , 743 N.E.2d 32, 39 (Ill. 2000) (citation20 No. 20-1725

omitted) (mur der) ; People v. Price , 850 N.E.2d 199, 203 (Ill. 2006) (citation omitted) (theft) ; United States v. Orzechowski , 547 F.2d 978, 986

– 87 (7th Cir. 1976) (§ 841(a)(1)). The government musters its own example s , including an Eighth Circuit
case, United States v. Maldonado , which conclud ed divisibility for Nebraska and Iowa statute s . 864 F.3d 893, 898 (8th Cir. 2017). We acknowledge that several of the cited statutes

— especially 21 U.S.C. § 841(a)(1)— resemble the structure of the look

- alike statute. But this back and forth ultimately does not resolve the divisibility question. In Mathis and related decisions, the Supreme Court outlined the proper sources for determining divisibility. 579 U.S. at 51 7–19. That framework does not endorse comparing unrelated s tate and federal statutes to conclusively discern divisibility. Comparing statutes may have analytical value, but we are reluctant to resolve the case on that basis alone. Many statutes undergo divisibility analysis , and parties will often be able to ident ify statutes that support their preferred conclusion. Still, we are not withoutoptions to break the stalemate. Where “state law fails to provide clear answers,” the Court allows reference to “the record of a prior conviction” to determine divisibility. Id

. at 518. We turn to those documents now.

D
We start with Elion’s record of conviction document s, including the information, indictment, and judgment, before turning to the applicable jury instruction. Elion’s information charged him with “unlawful deliver y of a look

- alike substance.” The grand jury indictment and judgment re flect the same offense: “[U]nlawful delivery of a look

- alike substance.” While those documents suggest Elion was charged with

— andNo. 20-1725 21

convicted of

— distributing a look

- alike substance, they do not plainly say so. Each document uses the word “delivery,” which is not included in the look

- alike statute. To be sure, thestatutory definition of delivery closely aligns with distribution. Illinois defines “ delivery ” as “the actual, constructive or

a ttempted transfer of possession of a controlled substance, with or without consideration, whether or not there is an agency relationship.” 720 I LL

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. 570/102(h). And the

same statute defines “ dist ribute ” as “to deliver, other than by administering or dispensing, a controlled substance.” 720 I LL

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. S TAT . 570/120(r). Nonetheless, there is a gap between the term used in Elion’s record documents and the term used in the look

- alike s tatute . We do not know whether the documents use “delivery” in its definitional sense or as a general reference to the look

- alike statute. The government suggests United States v. Redden speaks to this question. 875 F.3d 374, 375 (7th Cir. 2017). There , we examined 720 I LL

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. 570/401 to determine if it criminalized conduct more broadly than the Guidelines controlled substance offense. Id. at 374 –75. We held it did not, concluding that “[a]ny conduct meeting the state’s definition of ‘delivery’ comes within § 4B1.2(b).” Id. at 375. While t rue enough, w e fail to see the relevance of that determination. Theissue here is whether the use of delivery in Elion’s record documents means the look

- alike statute is divisible. On that critical point, Redden offers no guidance. So, we turn next to the applicable jury instruction. In full, Illinois Criminal Pattern Jury Instruction 17.34 reads: To sustain the charge of [ (manufacture of) (distribution of) (advertisement of) (possession of)22 No. 20-1725

(possession with intent to manu facture) (possession with intent to distribute) ] a look

- alike substance, the State must prove the following proposition: That the defendant knowingly [ (manufactured)(distributed) (advertised) (possessed) (possessed with intent to manufacture) (possesse d with intent to distribute) ] a look

- alike substance.If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, you should find the defendant guilty. If you find from your consideration of al l the evidence that this proposition has not been proved beyond a reasonable doubt, you should find the defendant not guilty. Illinois Pattern Jury Instructions

— Criminal, 17.34. The Committee Notes provide additional detail on using the cited instruction. They explain that the instructing court should“[u]se applicable bracketed material,” and that “[s]eparate issues and definitional instructions may have to be given, along with separate verdict forms, if the jury is to consider more than one charge under S ection 570/404. ” Id. at cmt. n.1. Like Elion’s record of conviction documents, the jury instruction is subject to competing interpretations. It is unclear whether the bracketed segment can permissibly contain multiple parenthetical components

— which would mean indivisibility

— or if it may contain only one component to the exclusion of others.No. 20-1725 23

Ultimately, our prior decision in Parzych v. Garland guides how we interpret the record documents and jury instruction. 2 F.4th 1013 . There, we examined the divisibility of Illinois’s burglary statute, 720 I LL

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. 5/19- 1(a), which states that an individual commits burglary when without authority he “ knowingly enters or without authority remains ” in certain buildings or vehicles , “ with intent to commit therein a f elony or theft.” Parzych , 2 F.4th at 1015, 1017. The question in Parzych was whether the two types of intent listed in the statute

— intent to commit “ a felony ” or intent to commit

“ theft ”— qualified as means or elements. Id. at 1017. As here, the divisibility analysis in Parzych led us to examine the underlying record of conviction. Parzych’s indictments showed that he was charged with “unlawful entry with intent to commit theft .” Id. at 1019 (emphasis added) So, like Elion’s charging documents, th ose documents included one component of the statute (intent to commit theft) and left others out (intent to commit a felony). While at a high level that suggests divisibility, we cautioned in Parzych that charging documents must be used with care. Such doc uments “regularly include factual details that are not elements of the crime, so the indictment’s inclusion of intent to commit theft

— without more

— [did] not show that it is an element.” Id. The sameis true here with Elion’s record documents. We cannot conclusively determine whether their inclusion of “delivery” was intended to descri be the look

- alike statute generally or meant to identify “distribute” as an element.
We also examined the I llinois jury instruction s . I n Parzych , t he relevant instruction s “direct[ed] jurors to decide whether a defendant unlawfully entered a proper t y ‘with intent to commit therein the offense of .’” Id. (quoting Illinois24 No. 20-1725

Pattern Jury Instructions

— Criminal 14.07 –.10). The instruction thus left the intent component open

- ended, with the Committee Notes “direct[ing] that an ‘offense alleged in the charge’ be identified on the blank line before providing the instructions to the jury.” Id. On our review , we concluded that “neither the blank line nor the committee’s no tes require a single form of intent to be inserted, nor do they clarify whether multiple offenses could be added, if alleged.” Id. Accordingly, “the jury instructions d[id] not suggest that the information to be inserted [was] a single element of the crime .” Id. Given all that, the record documents and jury instructions did not conclusively establish divisibility. Here, Elion’s jury instruction is similarly

— if not more

— ambiguous than the one in Parzych . As noted, we cannot conclusively determin e whether mu ltiple bracketed components may be included in the jury instruction. This means the record documents do not “speak plainly,” and we cannot satisfy

“ Taylor ’s demand for certainty” that Elion was convicted of a controlled substance offense. Mathis , 579 U.S. at 519 (quoting Shepard , 544 U.S. at 21)

. The Illinois look

- alike statute is over

broad and indivisible, so Elion’s convictions do not qualify as predicate offenses. 6
Our hold ing also accords with the warning we gave in Najera -Rodriguez , 926 F.3d at 356 . There, we explained the risk

6 We understand this holding conflicts with two of our unpublished order s, United States v. Phenegar , 809 F. App ’ x 323, 324

– 25 (7th Cir. 2020) , and United States v. Green , 458 F. App ’ x 568, 568

– 69 (7 th Cir. 2012). But those orders, responding to Anders briefs, did not benefit from the detailed argument s and analysis now before us. I n any event, we do not defer to

non

- precedential dispositions. United States v. Prado , 41 F.4th 951, 953 n.1 (7th Cir. 2022); s ee also Circuit Rule 32.1.No. 20-1725 25

involved when federal courts interpret state statutes through the categorical approach: “If federal courts interpret state law incorrectly, by finding that state laws include essential elements that state courts have not treated as such, we could mistakenly cast doubt on the much higher volume of state criminal prosecutions under those same state statutes.” Id. So, “[t]oreduce that risk,” we insist on clear signals, “signals that convince us to a certainty that the elements are correct and support divisibility before imposing additional federal consequences for those state convictions.” Id. Simply put, t hose clear signals are absent here.
Before end ing, we ac knowledge that our decision “elevates the abstract and artificial categorical approach over the known facts of the case.” Bridges , 991 F.3d at 810. At a certain level of abstraction, the match between Illinois’s look

- alike statute and the Guidelines contro lled substance offense seems obvious

— the statute and the Guideline both deal with phony drugs. It is also plausible that Elion distributed a look

- alike substance instead of advertis ing one. But the categorical approach requires diligent adherence to a rigi d framework

. Indeed, the Court has told us time and again that we may not consider the facts of the defendant’s conduct, no matter how apparent

. Descamps , 570 U.S. at 261. Th at precedent binds us

. So, a dhering to the categorical approach, we hold that Elion’s 1999 and 2000 Illinois offenses cannot qualify as controlled substance offenses.
It follows that Elion suffered prejudice from counsel’s failure to object. He should have been sentenced under a lower Guidelines range , and there is no indication the sentencing court would have imposed the same sentence regardless of § 4B1.1(a)’s applicability. See Bridges , 991 F.3d at 808 (quoting26 No. 20-1725

Molina

- Martinez v. United States , 578 U.S. 189, 200 (2016) ) (“In most cases a defendant who has shown that the district c ourtmistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome.”). Had counsel objected to the career offender Guideline, there is a reasonable probability that Elion’s
sentenc e woul d have been lower

. IVThe district court determined that Elion was properly sentenced as a career offender and, therefore, could not show prejudice for his Strickland claim. But the Illinois look

- alike statute punishes conduct more broadly than the Guidelines controlled substan ce offense, and it is indivisible. As such, Elion’s prior Illinois convictions do not qualify as Guideline § 4B1.1 (a) predicate offenses, and he should not have been sentenced as a career offender. W e R EVERSE the denial of Elion’s § 2255 motion and R EMAND so the district court may examine Strickland ’s deficien t performance prong in the first instance. Though we leave consideration of counsel’s performance to the sound discretion of the district court, our decision in Bridges v. United States may prov ide helpful direction on remand. 991 F.3d at 802–06.