### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19

- 1215
U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

F ERNANDO G ODINEZ , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Northern District of Illinois , Eastern Division. No. 1:16

- cr

- 00554

- 2

— Jorge L. Alonso , Judge

.

____________________
A RGUED D ECEMBER 4, 2019

— D ECIDED A PRIL 9, 2020

____________________

Before F LAUM , R IPPLE , and H AMILTON , Circuit Judges

. R IPPLE , Circuit Judge

. Fern ando Godinez pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and to possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C

. § 924(c)(1)(A)(i). The Government filed an information under 21 U.S.C. § 851, advising the district court that Mr. Godinez had a prior Ohio conviction for possession of cocaine. The district court determined that this prior state conviction2 No. 19

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made Mr. Godi nez eligible for a mandatory minimum sentenc e of ten years’ imprisonment rather than the otherwise applicable five

- year mandatory minimum. See 21 U.S.C. § 841(b)(1)(B) (2010)

. Mr. Godinez now submits that, at the time of sentencing, the district court

— and both parties

— misapprehended the legal conseq uences of the Government’s filing the § 851 information. Specifically, he submits that the First Step Act of 2018, Pub. L. 115

- 391, 132 Stat. 5194 ( the “First Step Act ”), enacted after the signing of Mr . Godinez’s plea agreement but before his sentencing, rendered invalid both the information and the increased penalties it carried. In his view, the district court should not have characterized his previous Ohio conviction as a conviction for “possession w ith intent to distribute” cocaine, the qualifying requ irement for the
ten

- year mandatory minimum. Therefore, Mr. Godinezsubmits, he is not subject to the higher mandatory minimum.Mr. Godinez is correct. By failing to recognize the changes implemented by the First Step Act, the district court premised its se ntencing calculations on a mandatory minimum that was twice what it should have been. This oversight constitutes plain error and requires that Mr. Godinez be resentenced. Accordingly, we vacate the judg ment of the district court and remand the case to the district court for sentencing.
I.
BACKGROUND In 2016, federal agents arrested Mr. Godinez and his brother Adan Godinez (“Adan”) during a controlled drugNo. 19

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purchase. The brothers previously had arranged to sell approximately two kilograms of cocaine to an un dercover officer in a mall parking lot. At the scene, both brothers werearmed; Mr. Godinez also came prepared with extra ammunition. When law enforcement officers surrounded Mr. Godinez, he surrendered without resistance. Adan, who was in a separate car, did not. He exchanged fire with the officers a nd was wounded before his apprehension. Mr. Godinez pleaded guilty to one count of conspiracy to distribute cocaine, a violation of 21 U.S.C. §§ 841(a)(1) and 846 (“Count One”), and one count of possession of a firearm in furtherance of a drug trafficking crime, a violation of 18 U.S.C. § 924(c)(1)(A)(i). 1 Under Count One, he faced a mandatory minimum of five years’ imprisonment and a maximum of forty years’ imprisonment. 2 At the time of the plea agreement, a pr ior conviction for a “felony drug offense” tri ggered increased penalties under § 841(b)(1)(B). A “felony drug offense” is defined as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or f oreign country that prohibits or restricts con duct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44).

1 R.96 at 2

– 3.

2 21 U.S.C. § 841(b)(1)(B). Mr. Godinez pleaded guilty to a violation of 21 U.S.C. § 846, which directs a sentencin g court to penalties outlined elsewhere, in this case, § 841. Section 846 prov ides, “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commi ssion of which was the object of the attempt or conspiracy.”4 No. 19

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On October 20, 2017, the Government filed an information under 21 U.S.C. § 851, notify ing the district court that Mr. Godinez had a prior conviction for possession of cocaine, imposed by an Ohio court in 2008 (the “Ohio conviction”). In the plea agreement, Mr. Godinez had acknowledged the prior Ohio conviction as well as a prior conviction for possession of a firearm by a fugitive. 3
O n January 16, 2019, the district court imposed a totalsentence of 204 months’ imprisonment. That sentence included a sentence of 144 months’ imprisonment for Count One, conspiracy to distribute cocaine. In cra fting this Count One sentence, the district co urt, believing that the Ohio conviction rendered Mr. Godinez eligible for a ten

- year mandatory minimum instead of a five

- year minimum sentence, used that higher mandatory minimum as its starting point. The cour t also determined that an upward variance was appropriate based on Mr. Godinez’s carrying extra ammunition, the similarity of his past criminality to the present episode, his recent removal from the United States, and the likelihood of future illegal reent ry. 4 Mr. Godinez did not object at sentencing to the presentence report or to the accuracy of the statements made at sentencing.
II.
DISCUSSIONMr. Godinez submits that the district court misapprehended the governing law and, consequently, mischaracter3 R.96 at 9

– 10.

4 R.167 at 44.No. 19

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ize d the nature of his previous Ohio conviction. In his view, the sentencing court erred when it determined that the Ohio conviction for possession of cocaine triggered the increased
ten

- year mandatory minimum under 21 U.S.C. § 841(b)(1)(B).
Because Mr. Godi nez did not object at sentencing, we review fo r plain error. United States v. Taylor , 909 F.3d 889, 893 (7th Cir. 2018). To grant relief under the plain error doctrine, we must determine that there was an error, that it is “clear” or “obvious,” and that it affected the defendant’s substantial rights. United States v. Olano , 507 U.S. 725, 732

– 34 (1993); Taylor , 909 F.3d at 8 93. If these conditions are met, we can exercise our discretion to remedy the error “ if the error ‘seriously affect[s] the fairness, int egrity or public reputation of judicial proceedings.’” Olano , 507 U.S. at 736 (alteration in original) (quoting United S tates v. Atkinson , 297 U.S. 157, 160 (1936)).
A. We begin with an examination of the statutory scheme governing sentencing in this case. The basic statute, 21 U.S.C. § 841, is the starting point of our analysis. It imposes a five

- year mandatory minimum for offenses such as Count One, conspiracy to distribute cocaine. Before the passage of the First Step Act, that five

- year mandatory minimu m became a ten

- year minimum when a defendant had a prior conviction for a “felony drug offense.” 5 21 U.S.C. § 841(b)(1)( B) (2010).

5 A “felony drug offense” is defined as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or f oreign country that prohibits or restricts conduct relating (continued

... )6 No. 19

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The First Step Act amended this statute. Among other things, the Act effected sentencing reform by modifying the penalties f or certain federal offenses, including Mr. Godinez’s crime of conviction. More precisely, the Act narrowed the category of offenses that triggered the higher

ten

- year mandatory minimum. 6 Now, a prior conviction must be a “ serious drug felony ”

— not a felony drug offense

— to increase the mandatory minimum under § 841(b)(1)(B). The First Step Act does not define the term “seriou s drug felony.” Instead, it points to 18 U.S.C. § 924(e)(2) of the Armed Career Criminal Act (“the ACCA”). 7 That section defines a “seri ous drug offense” as

(

... continued) to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44).

6 Section 401(a)(2)(B) of the First Step Act provides, (a) The Controlled Substances A ct (21 U.S.C. 801 et seq.) is amended

—

... (B) in subparagraph (B), in the matter following clause(viii), by striking “If any person commits such a violation after a prior conviction for a felony drug offense has become final” and inserting the following: “If any person commits such a violation af ter a prior conviction for

a serious drug felony or serious violent felony has become final”. First Step Act of 2018, Pub. L. 115

- 391, § 401(a)(2)(B), 132 Stat. 5194 (emphasis added).

7 Section 401(a)(1) of the Fi rst Step Act reads, (continued

... )No. 19

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(i) an offense under the Controlled SubstancesAct (21 U.S.C. 801 et seq.), the Controlled Substanc es Import and Export Act (21 U.S.C. 951 etseq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or

mo re is prescribed by law; or(ii) an offense under State law, involving manufacturing, distributing, or possessing with i ntent to manufacture or distribute, a controlledsubstance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.18 U.S.C. § 924(e)(2)(A). Because Mr. Godinez’s prior conviction for possession was an offense under state law, it is a “serious drug offense” under § 924(e)(2) only if it meets the requirements of subsection (ii) concerning state law offenses. In short, a ten

- year mandatory minimum is only permissible if the Ohio conviction is an offense “involving manufactur-

(

... continued)The term “serious drug felony” means an offense described in section 924(e)(2) of title 18, United States Code, for which

— (A) the offender served a term of imprisonment of more than 12 months; and (B) the of fender’s release from any te rm of imprisonment was within 15 years of the commencement of the instant offense. § 401(a)(1), 132 Stat. 5194.8 No. 19

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ing, distributing, or possessing with intent to manufacture or di stribute, a controlled substance ... .” Id. § 924(e)(2)(A)(ii). Congress enacted t he First Step Act after Mr. Godinez entered his plea, but it was effective before he was sentenced. By the Act’s own terms , the provisions relevant to Mr. Godinez “shall app ly to any offense that was committed before the date of enactment of this Act, if a s entence ... has not been imposed as of such date of enactment.” 8

B. The parties present different perspectives on how this provision of the First Step Act ought to apply to Mr. Godinez’s situation. The Government agrees that the First Step Act applies to M r. Godinez. It nevertheless maintains that his offense is a “serious drug offense” within the meaning of § 924(e)(2)(A)(ii). In its view, even though Mr. Godinez’s Ohio co nviction is for possession of cocaine, it is, for purposes of federal sentencing, an offense “involving ... possessing with intent to ... distribute, a controlled substance” andtherefore a “serious drug offense” deserving of the mandatory ten

- year minimum. Re lying on our cases interpreting the ACCA, it submits that the Ohio conviction need no t include the formal element of “intent to ... distribute” to be considered an offense “ involving ” “intent to ... distribute.” Rather, the Government continues, the word “invo lving” in§ 924(e)(2)(A)(ii) extends more broadly and includes the vio8 First Step Act § 401(c).No. 19

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lation of a sta tute that prohibits the possession of a large quantity of drugs.There is some force, at least at first glance, to the Government’s analysis. We agree that Congress, by e mploying the term “involving,” intended to cover more offenses than those that explic itly have as an element manufacturing, distributing, or possessing with intent to distribute. An offense “involving” specified conduct is an offense that necessarily entai ls that conduct. Shular v. United States , 140 S. Ct. 779, 784

– 85 (2020) (indicating that § 924(e)(2)(A)(ii) refers to offenses that necessarily require certain conduct); Kawashima v. Holder , 565 U.S. 478, 483

– 84 (2012) (concluding that a statute referencin g offenses that “involve” fraud or decei t refers to “offenses with elements that necessarily entail fraudulent or deceitful conduct”). Indeed, we have construed the term “involving” to carry “expansive connotations.” United States v. Williams , 931 F.3d 570 , 575 (7th Cir. 2019) (internal quotatio n marks omitted). 9 Notably, the language of a parallel provision in the same statute supports this interpretation

. Section 924(e)(2) defines the terms “serious drug offense” and “violent felony.” While a “serious dru g offense” under state law is defined as an offense “ involving manufacturing,distributing, or possessing with intent to manufacture or dis9 In United States v. Williams , 931 F.3d 570, 576 (7th Cir. 2019), we concluded that the Indiana offense of financing the manufacture or deliveryof cocaine was a “serious drug offense” because Indiana courts had interpreted the language of the statute to exclude individuals purchasing the drugs for personal use. Therefore, the Indiana statute reached only activity that would be a “serious drug offense under the federal ACCA.” Id.10 No. 19

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tribute, a controlled substance,” a “violent felony” is defined in relevant part as a crime “involving the use or car rying of a firearm, knife, or destructiv e device” that “ has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(A)

– (B) (emphasis added). 10 “[W]here Congress includes particular

10 Section 924(e)(2)(A)

– (B) reads in full , (2) As used in this subsection

— (A) the term “serious drug offense” means

— (i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), t he Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii) an offense under State l aw, involving manufacturing, distributing , or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law; (B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, orany act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be pu nishable by imprisonment for such term if committed by an adult, that

— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (continued

... )No. 19

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lang uage in one section of a statute but omi ts it in anothersection of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States , 464 U.S. 16, 23 (1983) (alteratio n in original) (internal quotation marks omitted). The Supreme Court in Kawashima concluded, in the context of an immigration statute, that the term “involving” swept more broadly than “has as an element.” 565 U.S. at 483

– 84 (reasoning that although fraud and deceit “are not themselves formal e lements of the crime, ... [t]he scope ofthat clause is not limited to offenses that include fraud or deceit as formal elements”). In Shular , the Court suggested that Congress might not have used the language “has as a n element” in § 924(e)(2)(A)(ii) because Congress “may ... have wanted to clarify that the state offense need not include the identified conduct as a formal element.” 140 S. Ct. at 786.
Even before the Court’s decision in Shular , there was widespread agreem ent among our sister circuits that “invo lving” reaches more broadly than “has as an element.” 11

(

... continued) (ii) is burglary, arson, or extortion, involves use ofexplosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; ... .

11 See United States v. Wallace , 937 F.3d 130, 144 (2d Cir. 2019) (attempted criminal sale of a controlled substance is a “serious drug offen se”); United States v. Myers , 925 F.3d 881, 886 (6th Ci r. 2019) (initiation of methamphetamine manufacture process is a “serious drug offense”); United States v. Daniels , 915 F.3d 148, 155 (3d Cir. 2019) (attempt to manufacture, (continued

... )12 No. 19

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Nonetheless, not every offense conceivably related to the manufacture or distribution of drugs “involves” the intent to manufacture or distribute. “While the ter m ‘involving’ may be expansive, it is no t limitless.” United States v. Whindleton , 797 F.3d 105, 111 (1st Cir. 2015). The offense conduct of the state statute must “necessarily entail” the conduct specified in the ACCA. Kawashima , 565 U.S. at 483

– 84; see a lso Shular , 140 S. Ct. at 784

– 85. In the context of § 924(e)(2)(A)(ii), therefore, the conduct of manufacturing, distributing, or possessing with intent to manufacture or distribute must be inherent in the state law offense. F or example, our sister circuit s have determined that offenses such as the attempt to distribute a controlled substance and the initiation of the methamphetamine manufacture process are “serious drug offenses.” United States v. Williams , 488 F.3d 1004, 1009 (D.C. Cir. 2007); United Stat es v. Myers , 925 F.3d 881, 886 (6th Cir. 2019).
We now turn to the case before us. Shular makes clear that we must determine whether the Ohio state law offense meets § 924(e)(2)(A)(ii)’s definition of a “serious drug offense” by comparing the elements of t he Ohio statute to the conduct described in the ACCA. To determine whether the

(

... continued) distribute, or possess with intent to manufacture or distribute a controlled subst ance is a “serious drug offense”); United States v. White , 837 F.3d 1225, 1233

– 34 (11th Cir. 2016) (collecting cases); United States v. Vickers , 540 F.3d 356, 366 (5th Cir. 2008) (delivery of a control led substance is a “serious drug offense”); United Stat es v. McKenney , 450 F.3d 39, 42 (1st Cir. 2006) (conspiracy to possess with intent to distribute is a “serious drug offense”); United States v. Brandon , 247 F.3d 186, 190 (4th Cir. 2001) (interpreting “involving” broadly).No. 19

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offense of conviction is one “involving” the intent to manufacture or distribute, we therefore must begin by examining carefully the Ohio statute.
There are

— and at the time of Mr. Godinez’s 2008 conviction were

— separ ate statutes in Ohio prohibiting the possession of a controlled substance and the trafficking of controlled substances. Mr. Godinez was convicted of possession of cocaine. At the time of his conviction, Ohio Revised Code Section 2925.11 (2008), the statute of conviction, provided in relevant part , (A) No person shall knowingly obtain, possess, or use a controlled substance.

...(C) Whoever violates division (A) of this section is guilty of one of the following:

... (4) If the drug involved in the violation is

c ocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penaltyfor the offense shall be determined as follow s: ... Ohio Rev. Code § 2925.11(A), (C)(4) (2008). What followedwas a graduated set of penalties based on the quantity possessed. On one end of the spectrum, possession of five to less than twenty

- five grams of powder cocaine or one to less than five grams of crack cocaine was a fourth

- degree felony that carried a presumption of a prison term. Id.14 No. 19

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§ 2925.11(C)(4)(b). At the other end, possession of one thousand or more grams of powder cocaine or one hundred or more grams of crack cocaine was a first

- d egree f elony that carried a mandatory prison term of the maximum prison term prescribed for a first

- degree felony. Mr. Godinez maintains that “no matter the quantity of cocaine at issue in [his] Ohio case, his conduct

— established by and limited to the elem ents of his state conviction

— does not satisfy § 924(e)(2)(A)(ii).” 12 We are unwilling to state the inquiry so narrowly; it risks conflating the term “involving”in the ACCA with “has as an element.” Rather, we must focus on whether the Ohio offense of convi ction n ecessarily entails an intent to distribute.Mr. Godinez was convicted of possession of cocaine under Ohio Revised Code Section 2925.11(C)(4)(f). At the time of his conviction, to violate this subsection, he would have had to possess at least one hun dred gr ams of crack cocaine or at least one thousand grams of powder cocaine. We therefore must ask whether a violation of a state statute prohibiting the possession of one hundred grams of crack cocaine or one thousand grams of powder cocaine is an offens e that necessarily entails the intent to manufacture or distribute cocaine. To answer this question, we must, in the Government’sview, widen the lens of our inquiry and examine the structure of the Ohio statutory scheme. Such an examination, continues the Govern ment, reveals that the state legislature in12 App. R.50 at 1.No. 19

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tended to “make the possessor’s intent to distribute inherent in the proscribed conduct.” 13 The statutory scheme contains, albeit in separate sections, parallel sets of graduated

— and identical

— penalties for possess ion and for trafficking of controlled substances. This structure, suggests the Government, demonstrates that Ohio takes possession just as seriously as it takes trafficking. So far so good. But we do not see how this parallelism for possession and traffic king offenses supports the argument that the Ohio legislature incorporated intent to distribute in its proscription of the possession of large quantities of drugs. Indeed, the penalties are also identical for possession and trafficking of small quan tities. The Government sees more in the Ohio statute to supportits position. It notes that, at the time of Mr. Godinez’s conviction, the Ohio statute provided (and still provides) an affirmative defense of “personal use” to charges of fourth

- degree felony violat ions under Section 2925.11. 14Therefore, at the time of Mr. Godinez’s offense, an individual charged with possession of five to less than twenty

- five grams of powder cocaine, or one to less than five grams of crack cocaine, who successfully est ablished that the controlled substance was possessed solely for personal use could be instead eligible for prosecution of a misdemeanor or fifth

- degree felony. This defense is not available, however,

13 Government’s Supp. Br. 7.

14 Ohio Rev. Code § 2925.11(F). With respect to this portion of the statute, the 2008 and 2019 versions are identical.16 No. 19

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for third

- , second

- , and first

- degree felonies. Thus, th e Government submits, the Ohio statutory scheme recognizes thatpossession of a larger quantity of drugs gives rise to the inference of an intent to manufacture or distribute. This argument has an initial appeal and deserves our close attention. In the en d, however, w e do not find it persuasive. A legislative grant of an affirmative defense of personal use for the possession of small amounts of controlled substances does not compel the inference that a defendant who possesses a quantity in excess of that s mall amount n ecessarily has the intent to manufacture or distribute that larger amount. The Ohio legislature does not require its prosecutors to prove beyond a reasonable doubt that a defendant inMr. Godinez’s shoes had the intent to manufacture or to distribute the c ontraband. To use the conviction for possession to support a ten

- year minimum federal sentence under the ACCA, we would have to permit the Government to employan irrebuttable presumption of intent to manufacture or distribute, a fact that the Ohio legisla ture did not include as one of the elements of the crime of conviction and that the State therefore was not required to prove beyond a reasonabledoubt. Although a prosecutor may ask a trier of fact to consider possession of a large amount of contraband as evidence of intent to distribute, such a permissible evidentiary inference is a far cry from saying that a state criminal statute necessarily entails such an intent. Moreover, the structure of Ohio’s drug enforcement scheme is stark evidence that it is not Section 2925.11 that necessarily entails possession with intent to distribute. While Section 2925.11 addresses possession of controlled substan c-No. 19

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es, a separa te section, Ohio Revised Code Section 2925.03 (2008), 15 addresses trafficking. That section provides, No person shall knowingly do any of the following: (1) Sell or offer to sell a controlled substance; (2) Prepare for shipment, ship, transpo rt, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person. Ohio Rev. Code § 2925.03(A) (2008). W hile the conduct of “[p]repar[ing] for shipment,” read in isolation, might possibly mean mere possession, when read in the context of the requirement that an offender must “know[] or ha[ve] reasonable cause to believe t hat the controlled substance is inten ded for sale or resale,” it is clear that the provision prohibits possession with intent to distribute. See United States v. Walker , 858 F.3d 196, 200 (4th Cir. 2017) (concluding that each act specified under Section 29 25.03(A)(2) is an act of distribution ); United States v. Fuentes

- Oyervides , 541 F.3d 286, 289 (5th Cir. 2008) (rejecting the argument that Section 2925.03 encompasses mere possession and holding that it covers “act[s] of distribution”); United States v. Ka ram , 496 F.3d 1157, 1167

– 68 (10th Cir . 2007) (concluding that Section 2925.03(A)(2) describes “acts of distribution” and “prohibits each of the various phases of the distribution process”). That

15 For all purposes relevant to our analysis here, the 2008 and 2019 v ersions of Ohio Revised Code Section 2925.03 are substa ntively identical.18 No. 19

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possession with intent to manufacture or distribute is an off ense under Section 2925.03 certainly lends support to the contention that the more serious offenses of possession under Section 2925.11 do not necessarily entail the intent to manufacture or distribute. Mr. Godinez could have been charged with Section 2925 .03(A)(2), but he was convicted of th e categorically different offense of posse s sion under Section 2925.11.
Two of our sister circuits have concluded that a court of appeals may infer intent to manufacture or to distribute from a prior conviction for posse ssion. We conclude that neither of th ese cases, which involve statutory structures different from the one here, provides a sound rule of decision for the case before us. In United States v. Brandon , 247 F.3d 186 (4th Cir. 2001), the Fourth Circuit consider ed whether a prior conviction for pos session under a North Carolina statutewas a “serious drug offense.” North Carolina General Statute Section 90

- 95(h)(3) provided that “[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine ... shall be guilty of a felony ... known as ‘trafficking in cocaine.’” Three levels of penalties existed under the statute, corresponding to the quantity ofthe substance involved. Brandon was convicted of possession of twenty

- eight to two hu ndred grams of cocaine. The Fourth Ci rcuit considered “whether intent to manufacture or distribute is inherent in the generic conduct proscribed bythe statute and alleged in the indictment underlying Brandon’s 1994 conviction

— possession of more than twent y

eight grams but less than two hundr ed grams of cocaine.” 247 F.3d at 191

– 92. It observed that although intent to distribute might be inherent in the possession of very large amounts of cocaine, such as two hundred grams, Brandon’sNo. 19

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offense could have invo lved a quantity at the lower end of
t he range proscribed by the statute. “Given the range of drug quantities covered by the North Carolina statute, ... we simply cannot say that the typical conduct reached by that statute inherently involves an intent to man ufacture or distribute that cocaine.” Id. at 193. It may be reasonable to infer intent to distribute from possession of a large quantity of drugs, but as the FourthCircuit noted, it is not a necessary inference. The North Carolina statute at issue in Bra ndon was labeled a “trafficking” offe nse, but the court concluded,[i]t is an oversimplification to say that all trafficking offenses in North Carolina involve an intent to distribute. While the North Carolina legislature may well have concluded that one

w ho possesses more than twenty

- eight g rams of cocaine likely intends to distribute it, the statute by its terms applies to those who do not intend to distribute as long as they possess the requisite quantity.
Id. at 195. The North Carolina legislature could have made intent to distribute inher ent in the offense, but it did not. The statute was broad enough to cover possession without intent to distribute, and thus “it cannot fairly be said that an intent to distribute is inherent in all violations of N.C. Ge n. Stat. § 90

- 95(h).” Id. (emphasis a dded). By contrast, the Eleventh Circuit concluded that intent todistribute was inherent in all violations of an Alabama statute prohibiting trafficking in drugs. United States v. White ,20 No. 19

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837 F.3d 1225 (11th Cir. 2016). White was convicted of violating an Alabama statute pursuant to which[a]ny person who knowingly sells, manufactures, delivers, or brings into this state, or whois knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine, described in Section 20

- 2

- 25(1), is guilty of a felony, which felony shall be known as “trafficking in cocaine.” Ala. Code § 13A

- 12

- 231(2). Levels of punishment for violations of the statute increased according to the quantity o f cocaine involved. The statute was p art of Alabama’s three

- tiered system for drug offenses; the offense for which White was convicted was part of the most serious tier. The other two tiers prohibited (1) possession of any amount of a controlled substance other than marijuana, and (2) the unl awful distribution of or possession with intent to distribute a controlled substance other than marijuana. Reasoning that “a statute classifying possession of a certain quantity of drugs was sufficient to indicate an in tent to distribute those drugs,” the Eleventh Circuit came to the opposite conclusion as the Fourth Circuit and determined that twenty

- eight grams was sufficient to give rise to an inference of intent to distribute. Id. at 1234. The statutory schemes in Br andon and White are markedly differen t than the Ohio statute here. The statutes in those cases outlined separate offenses for the possession of small amounts of controlled substances and the sale, manufacture, delivery, transport, or possession of larger a mounts. The Ohio statute is structure d differently in that possession and trafficking are distinct offenses. T he statute here does not in-No. 19

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dicate that the conduct proscribed necessarily entails the intent to manufacture or distribute

. C. It is not enough to conclude that an error occurred; to satisfy plain error review, the error must have been plain and must have affected Mr. Godinez’s substantial rights. Olano , 507 U.S. at 732

– 34; see United States v. Jaimes

- Jaimes , 406 F.3d 845, 850

– 51 (7th Cir. 2005) (concluding that the court plainly erred in imposing an unwarranted 16

- level increase). A “plain” error is one that is “clear” or “obvious.” Olano , 507 U.S. at 734. Here, the sentencing court failed to consider the ch anges made by the First Step Act, namely, the heightened thresholds that must b e met for a court to impose increasedmandatory minimums for certain drug offenses. Such a misapprehension of law is “plain.” The error affected Mr. Godinez’s substantial rights because it doubled the mandatory minimum to which he was subject, increasing t heGuidelines range. “We have repeatedly held that a sentencing based on an incorrect Guidelines range constitutes 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 s election of a particular sentence.” United States v. Martin , 692 F.3d 760, 766 (7th Cir. 2012) (internal quotation marks omitted). If these requirements are met, we may exercis e our discretion to remedy plain error “ if the error ‘seriously affect[s] the f airness, integrity or public reputation of judicial proceedings.’” Olano , 507 U.S. at 736 (alteration in original) (quoting Atkinson , 297 U.S. at 160). Here, the error affected the fairness of Mr. Godinez’s sentencing proceedings by sub-22 No. 19

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jecting him to an in creased mandatory minimum. At sentencing, Mr. Godinez may have failed to notice the sentencing error,but so did defense counsel, the Assistant United States Attorney, ... and th e district court judge, and we conclude that it would be unjust to place the en tire burden for these oversights on [Mr. Godinez] by permitting him to serve an excessive prison sentence. Jaimes

- Jaimes , 406 F.3d at 851.
Conclusion Mr. Godinez’s prior convi ction for possession of cocaine was not a “serious drug offense” within the mea ning of § 924(e)(2)(A) and therefore was not a “serious drug felony” under § 841(b)(1)(B). Thus, it should not have triggered heightened penalties. The district court plainly er red when itbegan its sentencing calculations with a mandatory minimum of ten y ears instead of five years. Accordingly, we vacate Mr. Godinez’s sentence and remand for resentencing.
VACATED and REMANDED