May 22, 2018
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.
Flaum and Ripple, Circuit Judges, and Gettleman, District
Ripple, Circuit Judge.
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).
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.
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
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.
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,
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
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).
to Mr. Elder's original sentencing in this case, the
Government filed a motion under 21 U.S.C. § 851,
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 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
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.
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