United States v. Johnson

47 F.4th 535

UNITED STATES of America, Plaintiff-appellee,

v.Jeffrey JOHNSON, Defendant-appellant.

No. 21-1277

United States Court of Appeals, Seventh Circuit.

Argued January 13, 2022

Decided August 26, 2022

Helene B. Greenwald, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Jeffrey J. Levine, Attorney, Chicago, IL, for Defendant-Appellant.

Before Hamilton, Brennan, and Jackson-Akiwumi, Circuit Judges.

Jackson-Akiwumi, Circuit Judge.

During a search of Jeffrey Johnson's residence for firearms, ammunition, and related documents, officers seized over 100 grams of a substance containing heroin and furanylfentanyl. Following the denial of his suppression motion, Johnson went to trial and a jury convicted him of intent to distribute a controlled substance containing an analogue of fentanyl, which carries a 10-year mandatory prison sentence. The district court sentenced Johnson to 132 months' imprisonment. Johnson appeals, raising several challenges to his conviction and sentence. We find no error and affirm.

I

On April 5, 2017, FBI agents and the Chicago Police Department executed a search warrant at Johnson's apartment. The search warrant authorized law enforcement to search for:

Firearms, short barreled, ammunition, paraphernalia for maintaining firearms, any photographs of individuals with firearms, any records of firearms transactions, which have been used in the commission of, or which constitute evidence of the offense of: [unlawful use of a weapon by a felon].

The officers searched Johnson's apartment and did not find any firearms or ammunition. They then searched the back porch attached to Johnson's apartment and found over 100 grams of a substance containing heroin and furanylfentanyl, stuffed inside a sock, concealed in a cavity at the top of a ceiling beam.

Johnson was arrested, and a grand jury returned a one count superseding indictment charging him with possession with intent to distribute 100 grams or more of a mixture and substance containing a detectable amount of heroin and furanylfentanyl. 21 U.S.C. § 841(a)(1). Possession with intent to distribute at least 100 grams of a substance with a detectable amount of "any analogue of [fentanyl]" carries a mandatory minimum of 10 years' imprisonment. 21 U.S.C. § 841(b)(1)(A)(vi).

Before trial, Johnson filed a motion to suppress the drugs seized from his apartment. He argued that the drugs were found on the porch, which was located outside the apartment and outside the scope of the warrant. The district court found the porch to be curtilage and therefore within the scope of the warrant. The district court denied the motion.

Johnson proceeded to a six-day jury trial. At trial, the district court submitted a special verdict form to the jury addressing the enhanced penalty for offenses involving 100 grams or more of "any analogue of [fentanyl]." The court instructed the jury that "any analogue of [fentanyl]" is defined as "any substance that has a chemical structure that is substantially similar to the chemical structure of fentanyl." Johnson did not object to this instruction.

In the end, the jury found Johnson guilty of possession with intent to distribute 100 grams or more of a mixture and substance containing furanylfentanyl, an analogue of fentanyl. Johnson faced a 10-year mandatory minimum prison sentence. 21 U.S.C. § 841(b)(1)(A).

A. Motion for Judgment of Acquittal/Motion for New Trial

Johnson filed several post-trial motions. In one post-trial motion, which the district court construed as a motion for new trial, Johnson argued for the first time that furanylfentanyl is not an "analogue of [fentanyl]" within the meaning of § 841(b)(1)(A)(vi), and therefore he was not subject to the 10 year mandatory minimum. Johnson took the position that the word "analogue" as used in § 841(b)(1)(A)(vi) had the same meaning as "controlled substance analogue" in 21 U.S.C. § 802(32)(C)(i), which provides that a scheduled controlled substance is not a "controlled substance analogue." Because furanylfentanyl is a Schedule I controlled substance, Johnson argued that it cannot be an "analogue of [fentanyl]" under § 841(b)(1)(A)(vi) and that the jury's finding violated the Ex Post Facto Clause.

The district court rejected Johnson's argument. The district court concluded that the statutory definition of "controlled substance analogue" in § 802(32) did not apply to the word "analogue" in § 841(a)(1)(A)(vi) which, by itself, is undefined. Applying the ordinary and plain meaning of the term, the district court explained that the definition of "analogue" means "something similar or comparable to something else either in general or in some specific detail" or "a chemical compound that is structurally similar to another but differs slightly in composition." Johnson did not dispute that furanylfentanyl is an analogue of fentanyl under the plain meaning of the word, and this was in accord with the definitional "any analogue of [fentanyl]" instruction submitted to the jury. The district court therefore denied the motion.

Nearly a year after the district court denied this post-trial motion, Johnson filed an amended motion for a new trial making a similar argument regarding the definition of "any analogue of [fentanyl]." The district court denied the amended motion as untimely.

B. Amended Motion to Suppress

During the sentencing phase, Johnson obtained new counsel and filed an amended motion to suppress. In the motion, Johnson claimed for the first time that the officers exceeded the scope of the search warrant as to the items seized. Particularly, Johnson argued that the warrant authorized officers to search for firearms and firearm-related items, but the officers searched for anything illegal, including evidence of drugs and stolen vehicles. Johnson also argued that the officers unreasonably searched inside the sock containing heroin and furanylfentanyl because it was too small to have firearms. To account for his untimely motion, Johnson explained that his previous counsel had no "strategic purpose" for failing to raise the issue in his initial motion to suppress, so the omission was "objectively unreasonable."

The district court denied Johnson's amended suppression motion as untimely.

The district court found that, based on the available factual record, Johnson could not show ineffective assistance of counsel, and thus, could not establish good cause for the court to consider his untimely motion.

C. Sentencing

At sentencing, the district court determined that Johnson was a career offender based on two previous state felony convictions for the manufacture and/or delivery of controlled substances.¹ Johnson objected to his status as a career of-fender. He insisted that he was convicted under an Illinois drug statute that covered a broader array of controlled substances than federal law, and therefore, this conviction could not serve as a predicate offense under the career-offender guideline. The district court rejected this argument based on our decision in United States v. Ruth , 966 F.3d 642, 651 (7th Cir. 2020). With the career-offender guideline in place, Johnson's guidelines range was 360 months to life imprisonment. The district court sentenced Johnson to 132 months.

On appeal, Johnson contests the district court's denial of his amended suppression motion, its application of the 10-year mandatory minimum enhanced penalty, and his status as a career offender. We address each argument in turn.

II

A. Good Cause for Untimely Motion to Suppress

Johnson first argues that the district court erred in failing to grant his late-filed amended motion to suppress. We review a district court's good cause determination about an untimely motion for abuse of discretion. See United States v. Jackson , 5 F.4th 676, 682 (7th Cir. 2021).

A suppression motion filed after trial is untimely, but a court may consider the motion if a defendant shows good cause. Fed. R. Crim. P. 12(c)(3) ; United States v. Daniels , 803 F.3d 335, 351–52 (7th Cir. 2015). A claim of ineffective assistance of counsel might constitute good cause based on a fully developed record. See United States v. Acox , 595 F.3d 729, 732 (7th Cir. 2010). But a defendant's counsel's strategic decision not to pursue a claim, or to file a belated claim, is insufficient to establish good cause. United State v. Boliaux , 915 F.3d 493, 496 (7th Cir. 2019).

We see no abuse of discretion in the district court's determination that Johnson's motion was untimely and that he otherwise failed to establish good cause. Johnson's motion was filed one year after his conviction. Johnson acknowledges that his motion was untimely but argues ineffective assistance because there was no strategic reason for his prior counsel's failure to make the argument regarding the scope of the items seized. Although ineffective assistance of counsel may be sufficient to establish good cause in some cases, in this case, it is not. As it currently stands, the record is silent as to prior counsel's decision not to seek suppression on the ground that the officers exceeded the scope of the warrant as it relates to items, so we can only presume Smith's counsel performed within the professional standards. See United States v. Cates , 950 F.3d 453, 457 (7th Cir. 2020). Perhaps if, as the district court noted, Johnson had requested an evidentiary hearing to demonstrate how his prior counsel was deficient, then he could have potentially shown enough evidence to rebut this presumption. Absent a record of deficiency or any extrinsic evidence, however, Johnson cannot show good cause for his untimely motion. See United States v. Taglia , 922 F.2d 413, 417–18 (7th Cir. 1991) ("When the only record on which a claim of ineffective assistance is based is the trial record, every indulgence will be given to the possibility that a seeming lapse or error by defense counsel was in fact a tactical move, flawed only in hindsight.").

Even if Johnson was able to show good cause...