United States v. White

97 F.4th 532

UNITED STATES of America, Plaintiff-Appellee, v. Keith WHITE, Defendant-Appellant.

No. 22-2014

United States Court of Appeals, Seventh Circuit

Argued January 12, 2023

Decided April 2, 2024

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:17CR00135-001 — Sarah Evans Barker, Judge.

Bradley P. Shepard, Bob Wood, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Terry Tolliver, Attorney, Brattain Minnix Tolliver, Indianapolis, IN, for Defendant-Appellant.

Before Sykes, Chief Judge, and Easterbrook and Ripple, Circuit Judges.

Sykes, Chief Judge.

While serving a state sentence at the Pendleton Correctional Facility in Indiana, Keith White and another inmate ran a heroin-distribution ring inside the prison. After three inmates fatally overdosed, the FBI launched an investigation, and White and three accomplices were indicted for conspiracy to distribute heroin. White pleaded guilty; this is his second appeal challenging his sentence.

White's criminal history includes two Indiana felony convictions for cocaine dealing, which raised the statutory penalties for his heroin conviction, see 18 U.S.C. § 841(b)(B)(i), and increased his base offense level under the career-offender provision of the Sentencing Guidelines, see U.S.S.G. § 4B1.1-.2. In his first appeal, White successfully challenged the statutory enhancement under United States v. Ruth, 966 F.3d 642 (7th Cir. 2020). But Ruth did not affect his status as a career offender under the Guidelines.

At his resentencing hearing, White raised a new objection to the career-offender guideline based on the Supreme Court's intervening decision in Kisor v. Wilkie, 588 U.S. —, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019). As relevant here, the guideline applies when a defendant is convicted of a felony "controlled substance offense" and has two or more prior felony convictions for a "controlled substance offense." U.S.S.G. § 4B1.1(a). Under the version of the Guidelines then in effect, the definition of "controlled substance offense" did not address inchoate offenses like conspiracy. See id. § 4B1.2(b) (Nov. 1, 2021). But the commentary did: Application Note 1 explained that the term "controlled substance offense" includes "aiding and abetting, conspiring, and attempting to commit such offenses." Id. cmt. n.1.

Applying the Supreme Court's decision in Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), we have repeatedly deferred to Application Note 1 as the Sentencing Commission's authoritative interpretation of the career-offender guideline. See United States v. Smith, 989 F.3d 575, 583-85 (7th Cir. 2021); United States v. Adams, 934 F.3d 720, 727-30 (7th Cir. 2019); United States v. Raupp, 677 F.3d 756, 758-59 (7th Cir. 2012) (overruled on other grounds by United States v. Rollins, 836 F.3d 737, 743 (7th Cir. 2016) (en banc)). Bound by circuit precedent, the district judge rejected White's argument and again applied the career-offender guideline.

White now asks us to overrule this circuit caselaw and remand for resentencing without the career-offender enhancement. Relying on Kisor, he argues that the definition of "controlled substance offense" in § 4B1.2(b) is clear on its face and does not mention inchoate offenses. It follows, he says, that Application Note 1 deserves no deference because the guideline's text unambiguously excludes inchoate offenses. As we noted in Smith, this question has divided the circuits, see 989 F.3d at 584, and the disagreement has only deepened since then. In Smith we declined to switch sides in the circuit split. Id. We do so again here. Kisor did not disturb Stinson or our circuit precedent.¹

White argues in the alternative that Application Note 1 is invalid under the "major questions doctrine" and the Supreme Court's decision in West Virginia v. EPA, 597 U.S. 697, 142 S.Ct. 2587, — L.Ed.2d — (2022). This argument is meritless. The major questions doctrine does not apply. We therefore affirm the judgment.

I. Background

In 2014 White was serving a state sentence for cocaine trafficking at the Pendleton Correctional Facility in Indiana. He and fellow inmate Elonzo Williams operated a long-running drug-trafficking ring inside the prison, distributing heroin to other inmates. Williams's sister Lettie served as the courier; she picked up distribution quantities of heroin from White's sources in Chicago and delivered the drugs to Karen Jennings, a prison kitchen worker. Jennings smuggled the drugs into the prison, and White and Williams distributed user quantities to inmates.

After a series of overdoses—three of them fatal—the FBI opened an investigation. Inmates identified White and Williams as their heroin sources. Investigators then reviewed recorded phone calls and discovered that White had used prison phones to organize the pickup and delivery of multiple batches of heroin between 2014 and 2015.

White and his three accomplices were indicted in 2017 for conspiracy to distribute 100 grams or more of heroin. 21 U.S.C. §§ 841(a)(1), 846. Based on his history of drug offenses—specifically, his two Indiana convictions for cocaine dealing—the government filed an information under 21 U.S.C. § 851, which raised the statutory penalties to a minimum of 10 years in prison and a maximum of life (up from the baseline of 5 to 40 years). See § 841(b)(1)(B)(i).

White's case was dormant for more than a year, but he eventually pleaded guilty. In addition to the elevated statutory penalties, he faced an enhanced offense level under the career-offender guideline based on his prior drug convictions. See U.S.S.G. § 4B1.1-.2. With a final offense level of 34 and a criminal history category of VI, his advisory Guidelines range was 262 to 327 months in prison. In 2019 the district judge imposed a sentence of 12 years—2 years above the statutory minimum but well below the Guidelines range.

White asked his lawyer to file an appeal, but she did not follow through. Based on his lawyer's error, the judge granted White's motion for relief under 28 U.S.C. § 2255 and permitted him to file a late appeal.

In the meantime, we issued our decision in Ruth, which held that an Illinois conviction for cocaine dealing is not a predicate for enhanced penalties under §§ 841(b)(1) and 851 because Illinois's statutory definition of cocaine is categorically broader than the parallel definition under federal law. Ruth, 966 F.3d at 646-50. The government conceded that under Ruth, White's convictions under Indiana's cocaine-trafficking statute could not support the statutory enhancement under § 841(b)(1)(B). That concession had the effect of dropping the statutory penalties to the baseline of 5 to 40 years, so the parties filed a joint motion to vacate the sentence. We granted the motion and remanded for resentencing.

Ruth did not eliminate White's designation as a career offender, but the change in the statutory maximum reduced his base offense level from 37 to 34, see U.S.S.G. § 4B1.1(b). That, in turn, resulted in a new adjusted offense level of 31. Because he remained a career offender, his criminal-history category did not change. With the recalculated total offense level of 31 and the same criminal-history category of VI, White's new Guidelines range was 188 to 235 months in prison.

Back before the district judge, White raised a new objection to the career-offender enhancement based on the Supreme Court's intervening decision in Kisor. To understand his argument requires a brief explanation of how this familiar provision works. As its name implies, the guideline applies to recidivists; it raises the base offense level for defendants who repeatedly commit certain kinds of felony offenses. The guideline applies when (1) the offense of conviction is a felony "crime of violence" or "controlled substance offense" and (2) the defendant has two or more prior felony convictions for a "crime of violence" or "controlled substance offense." Id. § 4B1.1(a).

Until very recently, the definitions of "crime of violence" and "controlled substance offense" in the career-offender guideline did not address inchoate offenses like conspiracy. Id. § 4B1.2(a)-(b) (Nov. 1, 2021). But the Sentencing Commission explained in the commentary that the terms "crime of violence" and "controlled substance offense" include "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." § 4B1.2 cmt. n.1. Based on the Supreme Court's decision in Stinson, 508 U.S. at 38, 113 S.Ct. 1913, we have long deferred to Application Note 1 as the Sentencing Commission's authoritative interpretation of the career-offender guideline. See Smith, 989 F.3d at 583-85; Adams, 934 F.3d at 727-30; Raupp, 677 F.3d at 758-59.

At resentencing White argued that the Supreme Court's recent decision in Kisor unsettled our circuit caselaw regarding the validity of Application Note 1. Drawing on Kisor's less deferential approach to agencies' interpretations of their own rules, White maintained that because the definition of "controlled substance offense" in § 4B1.2(b) does not itself mention inchoate offenses, the guideline is clear on its face and courts may not consider—much less defer to—Application Note 1.

Bound by circuit precedent, the judge rejected White's argument and once again applied the career-offender Guideline. But she also determined that its effect on White's guidelines range may have overstated his culpability. For that reason and several others, she imposed a below-Guidelines sentence of 10 years.

II. Discussion

On appeal White challenges his career-offender designation on two grounds, both centering on the validity of Application Note 1 to § 4B1.2. (The Sentencing Commission recently amended § 4B1.2; we refer here to the November 1, 2021 version of the Guidelines.) White's main argument reiterates his contention that Kisor's modification of agency deference implicates Stinson...