### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 2905

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

T OM S MITH

, III, also known as T HOMAS S MITH

, III,

Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 17

‐ cr

‐ 00072

— Sarah Evans Barker

, Judge

.

____________________

A RGUED M ARCH 25, 2019

— D ECIDED A PRIL 22, 2019

____________________

Before W OOD

, Chief Judge

, and F LAUM and S YKES

, Circuit

Judges

.

F LAUM

, Circuit Judge

. Tom Smith, III appeals the district

court’s determination that he is a career o ff ender under

§ 4B1.1 of the United States Sentencing Guidelines, and is eli

‐ gible for the corresponding career

‐ o ff ender sentencing en

‐

hancement. The district court applied the enhancement after

concluding that Smith had two prior convictions that quali

‐

fi ed as controlled substance o ff enses under § 4B1.2(b) of the2 No. 18

‐ 2905

Guidelines. Smith maintains that one of those convictions—

the one under Indiana’s “Dealing in cocaine or narcotic drug”

statute, Ind. Code § 35

‐ 48

‐ 4

‐ 1—criminalizes more conduct

than the Guidelines’ de fi nition of a controlled substance of

‐

fense. As such, Smith contends that his conviction under the

overbroad statute cannot serve as a predicate controlled sub

‐

stance o ff ense for purposes of a career

‐ o ff ender designation.

Smith asks that we vacate his sentence for improperly includ

‐ ing a career

‐ o ff ender enhancement. We disagree with Smith’s

interpretation of the statute and thus a ffi rm the district court’s

judgment.

I. Background

A. The Indictment and Guilty Plea

In March 2017, Smith sold cocaine on two occasions to a

con fi dential informant. When law enforcement searched his

home, he had 12.83 grams of cocaine base, 111.57 grams of co

‐

caine powder, a ri fl e, two panels of a body

‐ armor vest, and a

digital scale. In an indictment, the government charged Smith

with one count of possession with intent to distribute a con

‐

trolled substance in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C); two counts of unlawful possession of a fi rearm in

violation of 18 U.S.C. § 922(g)(1); and three counts of distribu

‐

tion of a controlled substance in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C). The government also fi led an infor

‐

mation under 21 U.S.C. § 851, alleging that Smith had a prior

felony drug conviction from 2004 for possession with intentNo. 18

‐ 2905 3

to distribute 50 grams or more of cocaine base in violation of

21 U.S.C. § 841(a)(1).

Smith did not contest the charges. He entered into a writ

‐

ten plea agreement pursuant to Federal Rule of Criminal Pro

‐

cedure 11(c)(1)(A) and (B). Smith agreed to plead guilty to

Count One, possession with the intent to distribute a con

‐

trolled substance, which was punishable by a maximum sen

‐

tence of thirty years, and Count Two, possession of a fi rearm

by a prohibited person, which was punishable by a maximum

sentence of ten years. Smith also stipulated that he had two

prior convictions for o ff enses that were punishable by more

than one year of imprisonment. The fi rst was the 2004 convic

‐

tion that the government identi fi ed in the information. The

second was a 2009 state conviction for “Dealing in cocaine or

narcotic drug” in violation of Indiana Code § 35

‐ 48

‐ 4

‐ 1. In the

event that the court sentenced Smith as a career o ff ender un

‐

der § 4B1.1 of the Guidelines, Smith reserved his right to ap

‐ peal that determination.

Under the Guidelines, a defendant who quali fi es as a ca

‐

reer o ff ender receives an enhancement to his sentence.

U.S.S.G. § 4B1.1. To be a “career o ff ender,” a defendant must

be: (1) at least eighteen years old at the time he commi tt ed the

o ff ense of conviction; (2) the o ff ense of conviction must be a

felony that is either a crime of violence or a controlled sub

‐

stance o ff ense; and (3) the defendant must have at least two

prior felony convictions of either a crime of violence or a con

‐

trolled substance o ff ense. Id. § 4B1.1(a). A “controlled sub

‐

stance o ff ense” includes any federal or state o ff ense that is

punishable by a term of imprisonment of over one year and

prohibits “the manufacture, import, export, distribution, or4 No. 18

‐ 2905

dispensing of a controlled substance (or a counterfeit sub

‐

stance) or the possession of a controlled substance (or a coun

‐

terfeit substance) with intent to manufacture, import, export,

distribute, or dispense.” Id. § 4B1.2(b).

B. The Presentence Investigation Report

The United States Probation O ffi ce fi led an initial presen

‐

tence investigation report (“PSR”) on April 16, 2018. Then, on

May 18, 2018, the Probation O ffi ce fi led the fi nal PSR with an

addendum containing Smith’s objections and the Probation

O ffi ce’s responses; the substance of the PSR was otherwise

unchanged from the initial fi ling.

According to the PSR, the base o ff ense level for Smith’s

controlled substance o ff ense was 20 due to the amount of co

‐

caine involved. U.S.S.G. § 2D1.1(a)(5), (c)(10). Smith received

a 2

‐ level enhancement for maintaining a premises for the pur

‐

pose of distributing controlled substances, id. § 2D1.1(b)(12),

so his adjusted o ff ense level for the controlled substance of

‐

fense was 22. For Smith’s fi rearm o ff ense, the total o ff ense

level was 26, id. § 2K2.1(a)(1); and because he received no en

‐

hancements for that o ff ense, his adjusted o ff ense level was

also 26. The PSR used the greater of the two adjusted o ff ense

levels—here, 26. Next, the PSR determined that Smith should

receive the career

‐ o ff ender enhancement. Id. § 4B1.1(b)(2). As

a result, Smith’s o ff ense level increased to 34. Finally, Smith

received a 2

‐ level deduction for accepting responsibility for

the o ff ense and a 1

‐ level deduction for timely notifying au

‐

thorities of his intention to enter a guilty plea. Id. § 3E1.1(a),

(b). Thus, Smith’s total o ff ense level was 31. Because the PSR

considered Smith a career o ff ender, it calculated his criminal

history category at VI. Id. § 4B1.1. Without career

‐ o ff ender

status, Smith’s criminal history category would have been III.No. 18

‐ 2905 5

Given a total o ff ense level of 31 and a criminal history cate

‐

gory of VI, the PSR calculated the Guidelines’ imprisonment

range as 188 to 235 months.

Smith fi led ten objections to the PSR. Relevant to this ap

‐ peal, Smith argued that his conviction under Indiana Code

§ 35

‐ 48

‐ 4

‐ 1 was not a “controlled substance o ff ense” under

§ 4B1.2(b), and therefore, he did not have the requisite two

controlled substance o ff enses to qualify for the career

‐ of

‐

fender enhancement. More speci fi cally, he claimed that the

Indiana statute underlying his prior state conviction is

broader than the Guidelines’ generic de fi nition of “controlled

substance o ff ense.” The probation o ffi cer disagreed, explain

‐ ing that the elements of the crime of which Smith was con

‐

victed under Indiana’s statute fi ts squarely within § 4B1.2(b)’s

de fi nition of “controlled substance o ff ense.”

C. The Change of Plea and Sentencing Hearing

On August 3, 2018, the court held Smith’s change of plea

and sentencing hearing. After the Rule 11 colloquy, the dis

‐

trict court accepted Smith’s guilty plea to Counts One and

Two. The court also heard arguments about Smith’s objec

‐

tions to the PSR but ultimately overruled each of them. The

court explained that a career

‐ o ff ender enhancement was

proper because “whether you consider the statute in its en

‐ tirety, or you break it down into a divisible non

‐ categorical

sort of approach

... the prior conviction of Mr. Smith, the sec

‐

ond one under Indiana law, was for a controlled substance vi

‐

olation.” Ultimately, the court imposed a sentence of 188

months for Count One and 120 months for Count Two, with

both sentences to run concurrently. This appeal followed.6 No. 18

‐ 2905

II. Discussion

Smith challenges the career

‐ o ff ender enhancement to his

sentence pursuant to § 4B1.1 of the Guidelines, arguing that

his conviction under Indiana’s “Dealing in cocaine or narcotic

drug” statute, Ind. Code § 35

‐ 48

‐ 4

‐ 1, is not a predicate con

‐

trolled substance o ff ense under § 4B1.2(b) of the Guidelines.

We review the determination of whether a prior o ff ense is a

controlled substance o ff ense under the Guidelines de novo.

See United States v. Tate

, 822 F.3d 370, 375 (7th Cir. 2016). The

Indiana statute at issue here provides, in relevant part:

(a) A person who:

...

(2) possesses, with intent to:

(A) manufacture;

(B) fi nance the manufacture of;

(C) deliver; or

(D) fi nance the delivery of;

cocaine or a narcotic drug, pure or adul

‐

terated, classi fi ed in schedule I or II;

commits dealing in cocaine or a narcotic drug, a

Class B felony, except as provided in [the sub

‐

section de fi ning Class A felony o ff enses].

Ind. Cod. § 35

‐ 48

‐ 4

‐ 1 (2008).

To determine whether a prior conviction is a controlled

substance o ff ense for purposes of the Guidelines, courts apply

a “categorical approach,” whereby they “focus solely on

... the elements of the crime of conviction

... while ignoring the

particular facts of the case” to see if those elements “match”No. 18

‐ 2905 7

the elements of the “generic” o ff ense. Mathis v. United States

,

136 S. Ct. 2243, 2248 (2016). If the elements of the crime of con

‐

viction are the same as, or narrower than, the elements of the

generic version of the o ff ense, the crime of conviction quali fi es

as a predicate o ff ense. Id. at 2247–48. If the elements are

broader, we ask whether the statute is “divisible.” A statute is

divisible if it lists elements in the alternative, thereby de fi ning

multiple crimes. Id. at 2249. When analyzing a divisible stat

‐

ute, a sentencing court applies a “modi fi ed categorical ap

‐ proach.” Id. Under that approach, the court reviews “a limited

class of documents”—known as Shepard

‐ approved docu

‐

ments—“to determine what crime, with what elements, a de

‐

fendant was convicted of.” Id. (citing Shepard v. United States

,

544 U.S. 13, 26 (2005)). The court then “compare[s] that crime

... with the relevant generic o ff ense.” Id.

Here, the district court explained that a conviction under

Indiana Code § 35

‐ 48

‐ 4

‐ 1 quali fi es as a controlled substance

o ff ense regardless of whether the categorial or modi fi ed cate

‐ gorical approach applied. We agree. Arguably, the statute has

the same elements as § 4B1.2(b), so the career

‐ o ff ender en

‐

hancement should apply under the categorical approach. 1 But

even if the statute is broader than the Guidelines’ de fi nition,

because the statute is divisible, we apply the modi fi ed cate

‐ gorical approach and reach the same result.

1 The application note to § 4B1.2(b) states that a controlled substance

offense “include[s] the offenses of aiding and abetting, conspiring, and at

‐ tempting to commit such offenses.” U.S.S.G. § 4B1.2, cmt. n.1. That de

‐

scribes conduct that might qualify as “financ[ing]” drug

‐ dealing under In

‐

diana Code § 35

‐ 48

‐ 4

‐ 1(a)(2)(B) or (D).8 No. 18

‐ 2905

A. Divisibility

Our fi rst task is to determine whether Indiana Code § 35

‐

48

‐ 4

‐ 1 is divisible. To do so, we must discern whether an al

‐ ternatively phrased statute, like Indiana’s cocaine

‐ dealing

statute, lists alternative elements or alternative means. Mathis

,

136 S. Ct. at 2256. “‘Elements’ are the ‘constituent parts’ of a

crime’s legal de fi nition—the things the ‘prosecution must

prove to sustain a conviction.’” Id. at 2248 (quoting Black’s

Law Dictionary 634 (10th ed. 2014)). Means are factual cir

‐

cumstances or events; “they need neither be found by a jury

nor admi tt ed by a defendant.” Id. (citing Black’s Law Diction

‐

ary 709).

Sometimes this initial inquiry is straightforward, either be

‐

cause a state court has decided that the statute’s alternatives

are elements or means, or because it is indisputable from the

plain language of the statute that the alternatives are elements

or means. See id. But when state law does not provide a clear

answer, Mathis guides the sentencing court to look at the rec

‐

ord of the prior conviction “for ‘the sole and limited purpose

of determining whether [the listed items are] element[s] of the

o ff ense.’” Id. at 2256–57 (alterations in original) (citation omit

‐ ted). This review of the record is truly limited because if by

peering into the record the sentencing court learns that the

listed items are means, the court must cease further consider

‐

ation of the record and return to strictly applying the catego

‐

rial approach. Id. at 2257.

Smith insists that the statute is indivisible, but he does not

offer any reasoning or legal authority to support this position.

The government, by contrast, argues that both Indiana law

and the record of conviction support its position that the stat

‐

ute is divisible.No. 18

‐ 2905 9

1. Indiana Law

Turning fi rst to the language of § 35

‐ 48

‐ 4

‐ 1 itself, the gov

‐

ernment argues that the statute is divisible because certain

subsections impose di ff erent punishments. See id. at 2256 (“If

statutory alternatives carry di ff erent punishments, then

... they must be elements.” (citing Apprendi v. New Jersey

, 530

U.S. 466 (2000))). Per the statute, a defendant is guilty of a

Class B felony if the defendant knowingly or intentionally:

(1) manufactured a narcotic drug, (2) fi nanced the manufac

‐

ture of a narcotic drug, (3) delivered a narcotic drug, or (4) fi

‐

nanced the delivery of a narcotic drug. Ind. Code. § 35

‐ 48

‐ 4

‐

1(a) (2008). Whereas a defendant would be guilty of a Class A

felony if: (1) the amount of the drug weighed more than three

grams; (2) the defendant delivered or fi nanced the delivery of

a narcotic drug to a person under eighteen and at least three

years younger than the defendant; or (3) the defendant man

‐

ufactured, delivered, or fi nanced the delivery of the drug on

a school bus, or in, on, or within one

‐ thousand feet of a school

property, public park, family housing complex, or youth pro

‐

gram center. Id. § 35

‐ 48

‐ 4

‐ 1(b)(1)–(3).

We, however, do not read § 35

‐ 48

‐ 4

‐ 1(b) as assigning dif

‐

ferent punishments to the alternative types of conduct out

‐

lined in each subsection of § 35

‐ 48

‐ 4

‐ 1(a). Rather, we read

§ 35

‐ 48

‐ 4

‐ 1(b) as assigning di ff erent punishments for aggra

‐

vated versions of that same conduct described in the subsec

‐

tions of § 35

‐ 48

‐ 4

‐ 1(a). The legislature punishes drug dealing

in larger quantities more harshly than it does drug dealing in

smaller quantities, § 35

‐ 48

‐ 4

‐ 1(b)(1); it punishes drug dealing

to certain minors more harshly than drug dealing to adults,

§ 35

‐ 48

‐ 4

‐ 1(b)(2); and it punishes drug dealing near places

where children congregate more harshly than drug dealing in10 No. 18

‐ 2905

places where children are less likely to be present, § 35

‐ 48

‐ 4

‐ 1(b)(3).

While the statutory language does not itself establish that

§ 35

‐ 48

‐ 4

‐ 1(a) includes alternative elements and is divisible,

we do agree that Indiana caselaw supports that conclusion.

The government cites two Indiana state court decisions that

treat the statute as listing alternative elements that de fi ne

multiple crimes. See Eckelbarger v. State

, 51 N.E.3d 169, 170 &

n.1 (Ind. 2016) (per curiam) (characterizing dealing crimes as

“dealing in methamphetamine (by delivery)” and “dealing in

methamphetamine (by manufacture)”); Collins v. State

, 659

N.E.2d 509, 510–11 (Ind. 1995) (isolating the delivery element

from the other three alternatives in deciding what the state

“must have proved” in the context of double jeopardy

challenge on appeal). 2 And as we stated in United States v.

Anderson —an unpublished order issued after the government

fi led its appellate brief—“Indiana courts treat § 35

‐ 48

‐ 4

‐ 1(a) as

divisible.” No. 18

‐ 1548, slip op. at 6 (7th Cir. Mar. 21, 2019) 3 ;

2 Although the Indiana legislature frequently amends and republishes

§ 35

‐ 48

‐ 4

‐ 1, for the purposes of this appeal, the versions of the statute re

‐

main substantively the same between the approval of Public Law 165 in

1990 through the publication of the pocket part in 2009. See Pub. L. No.

165

‐ 1990, § 3; Pub. L. No. 296

‐ 1995, § 3; Pub. L. No. 65

‐ 1996, § 11; Pub. L.

No. 17

‐ 2001, § 19; Pub. L. No. 151

‐ 2006, § 22; Ind. Code § 35–48–4–1 (2008);

Ind. Code § 35–48–4–1 (2009).

3 As we explained in Anderson

, our conclusion that Indiana Code § 35

‐

48

‐ 4

‐ 1 is divisible is consistent with our opinion in Lopez v. Lynch

, in which

we applied the modified categorical approach (without expressly decid

‐ ing the issue of divisibility) to determine if a conviction under § 35

‐ 48

‐ 4

‐

1(a) constituted an aggravated felony under the Immigration and Nation

‐ ality Act. Anderson

, slip op. at 6 (citing Lopez v. Lynch

, 810 F.3d 484, 489

(7th Cir. 2016)).No. 18

‐ 2905 11

see McKinley v. State

, 45 N.E.3d 25, 29 (Ind. Ct. App. 2015)

(rejecting the State’s argument that subsection (a)(1)’s

“knowingly or intentionally” applies to subsection (a)(2)

because of the “disjunctive conjunction” between the two

subsections); Harper v. State

, 963 N.E.2d 653, 658 n.3 (Ind. Ct.

App. 2012) (describing the statute as “provid[ing] the elements

for the crimes of dealing in cocaine or a narcotic

drug”(emphasis added)); Upshaw v. State

, 934 N.E.2d 178, 183

(Ind. Ct. App. 2010) (explaining that in order to convict the

defendant of a class B felony dealing in cocaine, “the State was

required to prove beyond a reasonable doubt that he

knowingly or intentionally possessed cocaine with the intent

to deliver”).

2. Record of Conviction

In any event, even if Indiana law did not provide a clear

answer to the elements or means question, the government

asserts that a targeted glance at Smith’s record of conviction

con fi rms that the statute’s list of alternatives are elements and

not means. See Mathis

, 136 S. Ct. at 2256–57. Here, the record

included a plea agreement, the judgment of conviction, an in

‐

formation, and a transcript of a colloquy with the state court

judge. Only the la tt er two sources provide information at the

requisite level of speci fi city. 4

The information describes Smith’s charge in the following

terms: “Smith

... did knowingly possess with intent to deliver

4 The plea agreement only shows that Smith pleaded guilty to “Count

I

‐ Dealing in Cocaine, as a class B felony lesser included offense”; it does

not cite the relevant subsection of the statute nor does it describe the un

‐ derlying criminal conduct. The judgment of conviction indicates that

Smith was found guilty of dealing in cocaine or narcotics and that the

“Class” for that conviction was “FA.” But under the section for “Judge’s12 No. 18

‐ 2905

a controlled substance, that is: cocaine, in an amount greater

than three (3) grams.” And Smith’s colloquy with the state

court judge similarly establishes that Smith pleaded guilty to

possession with the intent to deliver:

THE COURT:

... Count I, as a Class B felony, al

‐ leges that

... you, Tom Smith,

... did knowingly

possess, with the intent to deliver, a controlled

substance, that is: cocaine. Is that the fi rst count

you’re pleading guilty to?

THE DEFENDANT: Yes.

Although neither the information nor the transcript of the col

‐ loquy cite to a speci fi c subsection of the statute, it is clear from

the descriptions that both documents refer to “possession,

with intent to

... deliver” under § 35

‐ 48

‐ 4

‐ 1(a)(2)(C). Indeed,

they do not mention the terms “manufacture” or “ fi nance,”

one of which would be necessary to charge or convict Smith

under any of the other subsections in the statute. See Ind.

Code § 35

‐ 48

‐ 4

‐ 1(a)(2)(A)–(B), (D). This limited view into the

record of conviction shows that the state focused on one of the

statute’s alternative subsections to the exclusion of all others

in charging Smith and reaching a plea agreement; therefore,

it follows that § 35

‐ 48

‐ 4

‐ 1(a)’s alternative subsections are a list

of alternative elements.

B. Modi fi ed Categorical Approach

Since Indiana Code § 35

‐ 48

‐ 4

‐ 1 is divisible, we apply the

modi fi ed categorical approach. First, we review the Shepard

‐

Recommendations,” only the following “sentencing comments” ap

‐ peared: “Judgment of conviction entered as lesser included dealing in co

‐

caine/FB on Count I.”No. 18

‐ 2905 13

approved documents to understand of which crime and ele

‐

ments the defendant was convicted. See Mathis

, 136 S. Ct. at

2249. Then, we compare the elements of that crime to the ge

‐

neric o ff ense. See id. Here, this endeavor is straightforward be

‐

cause, as we just explained, the information and Smith’s col

‐ loquy with the state court judge con fi rm that Smith was

charged with and ultimately pleaded guilty to knowingly

possessing, with the intent to deliver, a controlled substance.

See Ind. Code § 35

‐ 48

‐ 4

‐ 1(a)(2)(C). That crime and those ele

‐

ments match the Guidelines’ de fi nition of a controlled sub

‐

stance: (1) possession (2) of a controlled substance (3) with the

intent to distribute that substance. See U.S.S.G. § 4B1.2(b). The

distinction between “deliver” in Indiana’s statute and “dis

‐

tribute” in the Guidelines’ de fi nition is without a di ff erence.

See United States v. Madkins

, 866 F.3d 1136, 1144 (10th Cir.

2017) (“Federal law provides that for purposes of [U.S.S.G.

§ 4B1.2(b)’s] de fi nition, ‘distribute’ means ‘to deliver

... a con

‐

trolled substance or listed chemical.’” (second alteration in

original) (quoting 21 U.S.C. § 802(11))).

Smith’s conviction under § 35

‐ 48

‐ 4

‐ 1 quali fi es as his sec

‐

ond predicate controlled substance o ff ense. We a ffi rm the dis

‐

trict court’s decision to apply the career

‐ o ff ender enhance

‐

ment in sentencing Smith.

III. Conclusion

For the foregoing reasons, we A FFIRM the district court’s

judgment.