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United States v. Elder

United States Court of Appeals, Seventh Circuit

August 15, 2018

United States of America, Plaintiff-Appellee,
v.
Matthew Elder, Defendant-Appellant.

          Argued May 22, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 3:13-cr-00017-RLY-CMM-8 - Richard L. Young, Judge.

          Before Flaum and Ripple, Circuit Judges, and Gettleman, District Judge.[*]

          Ripple, Circuit Judge.

         In 2015, Matthew Elder was convicted of conspiring to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. At his first sentencing, the district court concluded that Mr. Elder was subject to a mandatory term of life imprisonment under § 841(b)(1)(A) because he had two prior "felony drug offense" convictions. We remanded for resentencing because we concluded that one of his prior convictions did not qualify as a felony drug offense as that term is defined by 21 U.S.C. § 802(44). We also directed the district court to decide whether his second prior conviction, from Arizona in 1999, qualified. United States v. Elder (Elder I), 840 F.3d 455, 462 n.2 (7th Cir. 2016).

         At Mr. Elder's second sentencing, the district court concluded that the second of Mr. Elder's prior convictions qualified as a felony drug offense under § 841(b)(1)(A) and, accordingly, that Mr. Elder was subject to a mandatory minimum sentence of twenty years' imprisonment. The district court calculated Mr. Elder's guidelines range to be 324 to 405 months' imprisonment and sentenced Mr. Elder below the guidelines range to 260 months' imprisonment. Mr. Elder now appeals his new sentence.

         For the reasons stated in this opinion, we agree with Mr. Elder that the 1999 Arizona conviction is not a "felony drug offense" as defined by § 802(44). We therefore issue a limited remand under United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005), to permit the district court to determine whether this error was harmless.

         I

         BACKGROUND

         A.

         In 2013, Mr. Elder and his father were charged, along with six other codefendants, with having conspired "to traffic large quantities of methamphetamine from Arizona to southwest Indiana." Elder I, 840 F.3d at 457. The six other codefendants pleaded guilty; Mr. Elder and his father pleaded not guilty and went to trial. Mr. Elder was found guilty of conspiring to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846.

         At the time of his present conviction, Mr. Elder had two prior Arizona drug convictions. In 1997, Mr. Elder was convicted of possession of drug paraphernalia, in violation of Arizona Revised Statutes section 13-3415. We will refer to Mr. Elder's 1997 conviction as his "drug paraphernalia" conviction. In 1999, Mr. Elder pleaded guilty to possession of equipment or chemicals for the manufacture of dangerous drugs, in violation of Arizona Revised Statutes section 13-3407(A)(3). We will refer to Mr. Elder's 1999 conviction as his "dangerous drug" conviction. This conviction is the focus of the present appeal. At the time that Mr. Elder pleaded guilty, [1] the statute supporting the "dangerous drug" conviction was structured in the following way:

A. A person shall not knowingly;
1. Possess or use a dangerous drug.
2. Possess a dangerous drug for sale.
3. Possess equipment or chemicals, or both, for the purpose of manufacturing a dangerous drug.
4. Manufacture a dangerous drug.
5. Administer a dangerous drug to another person.
6. Obtain or procure the administration of a dangerous drug by fraud, deceit, misrepresentation or subterfuge.
7. Transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a dangerous drug.

Ariz. Rev. Stat. § 13-3407(A). Section 13-3407(A) therefore criminalizes conduct related to "dangerous drug[s]" as a broad category, rather than any specific drugs.

         "Dangerous drug" is further defined in Arizona Revised Statutes section 13-3401(6). Section 13-3401(6) names broad categories of drugs ("hallucinogenic substances," "stimulant[s]," "depressant[s]," and "anabolic steroids") but then defines only specific chemical compounds within those categories as "dangerous drugs." Id. § 13-3401(6)(a) (hallucinogenic substances); id. § 13-3401(6)(b) (stimulants); id. § 13-3401(6)(c) (depressants); id. § 13-3401(6)(d) (anabolic steroids). For example, the "stimulant" category is broken down into twenty-four specific chemical compounds that are "dangerous drugs," including "amphetamine," "methamphetamine," and "phentermine." Id. § 13-3401(6)(b)(i), (xii), (xx).

         B.

         Prior to Mr. Elder's original sentencing in this case, the Government filed a motion under 21 U.S.C. § 851, [2] indicating its intent to rely on the 1997 conviction for possession of drug paraphernalia and the 1999 dangerous drug conviction at sentencing as "felony drug offenses." These two convictions would qualify Mr. Elder for a mandatory life sentence under the three-strikes rule of 21 U.S.C. § 841(b)(1)(A).

         Section 841 provides that any person convicted under that section is subject to a mandatory minimum sentence of ten years' imprisonment. It further provides for a mandatory minimum sentence of either twenty years or life imprisonment for any person convicted under § 841 who has either one or two (or more) prior "felony drug offense" convictions, respectively. "Felony drug offense" is defined at 21 U.S.C. § 802(44) 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 foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances."

         Mr. Elder filed a motion to dismiss the information filed pursuant to 21 U.S.C. § 851; he argued that neither the drug paraphernalia conviction nor the dangerous drug conviction was a "felony drug offense" because the convictions did not "relat[e] to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances," as 21 U.S.C. § 802(44) defines "felony drug offense" for purposes of § 841. The district court disagreed and believed that § 841(b)(1)(A) required the imposition of a life sentence.

         In the first of his two appeals, Mr. Elder renewed the argument made to the district court that his 1999 dangerous drug conviction was not a felony drug offense. He also raised an argument, not made to the district court, that his 1997 drug paraphernalia conviction was not a felony drug offense because it was not punishable by more than one year, a point that all parties and the district court had overlooked. Elder I, 840 F.3d at 461. The Government conceded that the drug paraphernalia conviction was not a felony drug offense and, therefore, that the district court had improperly imposed a life sentence. We held that the district court plainly erred in finding that Mr. Elder had committed two prior felony drug offenses and remanded for a full ...


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