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In Stewart, the court addressed a strikingly similar “felony drug offense” and ineffective assistance of counsel claim in a § 2255 motion.
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Case No. 4:19-cv-00392-SMR Crim. No. 3:17-cr-00024-SMR-SBJ-1
2021-08-05
Derrick Anthony STEWART, Movant, v. UNITED STATES of America, Respondent.
Andrew J. Dunn, Brown & Bergmann, L.L.P., Des Moines, IA, for Movant. Clifford R. Cronk, III, United States Attorney's Office, Davenport, IA, for Respondent.
Andrew J. Dunn, Brown & Bergmann, L.L.P., Des Moines, IA, for Movant.
Clifford R. Cronk, III, United States Attorney's Office, Davenport, IA, for Respondent.
ORDER ON MOTION PURSUANT TO 28 U.S.C. § 2255
STEPHANIE M. ROSE, JUDGE
Derrick Anthony Stewart pleaded guilty to conspiring to distribute heroin and possessing a firearm in furtherance of a drug trafficking crime and his drug sentence was statutorily enhanced to a twenty-year mandatory minimum based on a prior conviction under the Illinois residual drug possession statute. J., United States v. Stewart , 3:17-cr-00024-SMR-SBJ-1 (S.D. Iowa Mar. 19, 2018) ("Crim. Case"). Stewart brings this motion to collaterally attack his sentence pursuant to 28 U.S.C. § 2255, arguing his state conviction does not qualify as a predicate "felony drug offense" under the Controlled Substances Act ("CSA") and that counsel was ineffective for failing to challenge the Government's enhancement information.
I. BACKGROUND
On April 19, 2017, Stewart was indicted on four federal charges:
• Conspiracy to Manufacture, Distribute, and Possess with Intent to Distribute 1,000 Grams and More of a Mixture and Substance Containing Detectable Amounts of Heroin under 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 851 (Count 1);
• Possession with Intent to Distribute Heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Count 2);
• Possession of a Firearm in Furtherance of Drug Trafficking, in violation of 18 U.S.C. § 924(c) (Count 3); and
• Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 4).
Indictment, Crim. Case, ECF No. 31 (sealed). Prior to trial, the Government filed an information pursuant to 21 U.S.C. § 851 notifying Stewart that it intended to seek an increased penalty on the drug conspiracy charge due to his criminal history involving at least one "felony drug offense." Info., Crim Case, ECF No. 56. The statutory language in effect at the time of Stewart's conviction defined a "felony drug offense" under the CSA 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." 21 U.S.C. § 802(44) (2018) ; see Burgess v. United States , 553 U.S. 124, 126, 128 S.Ct. 1572, 170 L.Ed.2d 478, (2008) ("The term ‘felony drug offense’ contained in § 841(b)(1) [ ] ... is defined exclusively by § 802(44) ...."). Each category of prohibited substance was further defined by statute. 21 U.S.C. § 802(17) (defining "narcotic drug"); id. § 802(16) (defining "marihuana"); id. § 802(41)(A) (defining "anabolic steroid"); id. § 802(9) (defining "depressant or stimulant substance").
The Government's § 851 information identified a conviction in 2000 under Illinois's residual drug statute, 720 ILCS 570/402(c) (2000), which rendered it "unlawful for any person knowingly to possess a controlled or counterfeit substance." See also Info., Crim. Case, ECF No. 56. While other parts of the statute delineate specific penalties for violations involving different amounts of particular substances, subsection (c), the portion of the statute at issue here, is a residual clause providing that a person in possession of "an amount of a controlled or counterfeit substance not set forth in [the statute] is guilty of a Class 4 felony." 720 ILCS 570/402(c) (2000). A "controlled substance" under Illinois law includes any "drug, substance, or immediate precursor" listed in the Schedules of the Illinois Controlled Substances Act. 720 ILCS 570/102(f) (2000) ; see id. § 204 (Schedule I); id. § 206 (Schedule II); id. § 208 (Schedule III); id. § 210 (Schedule IV); id. § 212 (Schedule V). Class 4 felonies are subject to a sentence between one and three years’ imprisonment. 730 ILCS 5/5-4.5-45(a).
Stewart entered a conditional plea of guilty to Counts 1 and 3 under Rule 11(a)(2) of the Federal Rules of Criminal Procedure on November 13, 2017, without the benefit of a written plea agreement. At sentencing, the Court found a total offense level of 31 and criminal history category of V, producing an initial guideline range of 168 to 210 months’ imprisonment on Count 1 and a mandatory consecutive term of 60 months’ imprisonment on Count 3. Sent'g Tr. at 13, Crim. Case, ECF No. 129; see Min. Entry, Crim. Case, ECF No. 119 (sentencing). However, federal law in effect at the time subjected a defendant to a statutory minimum of twenty years’ imprisonment for a violation of § 841(a) if committed after one prior conviction for a "felony drug offense"; a violation after two or more prior such convictions resulted in a mandatory term of life imprisonment. 21 U.S.C. § 841(b)(1)(A) (2018). Because of the Government's single § 851 enhancement information, Stewart's guidelines range was increased to 240 months’ imprisonment on Count 1. See id. ; Sent'g Tr. at 13. The Court sentenced him to the statutory minimum—240 months’ imprisonment on Count 1, followed by a consecutive sentence of 60 months’ imprisonment on Count 3. J., Crim. Case, ECF No. 120. Counsel for Stewart did not object to the Government's § 851 information.
The parties had originally negotiated a plea agreement under which Stewart would plead guilty to Counts 1 and 3 and receive a sentence of 300 months’ imprisonment. See Plea Agreement, Crim. Case, ECF No. 64. Under the terms of that agreement, the Government would file one sentencing enhancement notice under 21 U.S.C. § 851 and withhold the filing of a second; in exchange, Stewart would receive the statutorily-defined mandatory minimum sentence on both counts. Id. After signing the written agreement, but before the Court had accepted his plea, Stewart moved to withdraw his plea of guilty and be appointed new counsel. Crim. Case, ECF Nos. 67; 68. The arrangement brokered by Stewart's new attorney permitted Stewart to preserve the right to appeal his Fourth Amendment challenge to evidence obtained pursuant to a search warrant of his apartment. Notice, Crim. Case, ECF No. 83; Min. Entry, Crim. Case, ECF No. 84 (acceptance of guilty plea). Although the plea agreement was no longer in effect, the Government dismissed Counts 2 and 4 at sentencing. Sent'g Tr. at 24, Crim. Case, ECF No. 129. Stewart appealed his conviction to the United States Court of Appeals for the Eighth Circuit, which affirmed the Court's denial of his motion to suppress on March 13, 2019. Op., Crim. Case, ECF No. 136-1.
The current version of the CSA has reduced the statutory minimum to fifteen years’ imprisonment for a violation following a prior conviction for a re-branded "serious drug felony" or "serious violent felony" and twenty-five years’ imprisonment if committed after two or more such prior convictions. See First Step Act of 2018 § 401(a)(2)(A)(i)–(ii), Pub. L. 115-391, 132 Stat. 5194, 5220 (Dec. 21, 2018). All citations to the CSA will refer to the version of the statute in effect at the time of Stewart's sentencing unless otherwise noted.
Stewart filed this motion attacking his sentence under § 2255 on December 5, 2019. [ECF No. 1]. He raises two grounds for relief. First, he asserts his mandatory minimum sentence was unlawfully enhanced under § 841(b)(1)(A) based on a state conviction that is categorically broader than the federal definition of a "felony drug offense," contrary to the principles espoused in Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016) (Ground 1). He also claims he was denied the effective assistance of counsel, in violation of his rights under the Sixth Amendment to the United States Constitution, when his attorney failed to investigate the prior conviction listed in the Government's § 851 notice and challenge the predicate offense at the time of sentencing or on appeal (Ground 2).
II. STANDARD OF REVIEW
A federal inmate may file a motion to "vacate, set aside, or correct" his or her sentence under 28 U.S.C. § 2255 "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). That statute gives federal prisoners a remedy identical in scope to federal habeas corpus. Sun Bear v. United States , 644 F.3d 700, 704 (8th Cir. 2011).
Not all claimed errors in conviction and sentencing provide a basis for relief, however. Id. Beyond jurisdictional and constitutional errors, the permissible scope of a § 2255 collateral attack on a final conviction or sentence is "severely limited." Id. Federal habeas relief seeks to correct "a fundamental defect which inherently results in a complete miscarriage of justice, ... an omission inconsistent with the rudimentary demands of fair procedure,[ ] ... [or] ‘exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ " Hill v. United States , 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (citation omitted); see United States v. Apfel , 97 F.3d 1074, 1076 (8th Cir. 1996) ("Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice."). Generally, a movant "is entitled to an evidentiary hearing on a section 2255 motion unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Voytik v. United States , 778 F.2d 1306, 1308 (8th Cir. 1985) (citing 28 U.S.C. § 2255 ); see also Franco v. United States , 762 F.3d 761, 763 (8th Cir. 2014) ("No hearing is required, however, where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." (citation omitted)).
III. DISCUSSION
At bottom, Stewart's claim for relief hinges on the assertion that his prior conviction under the Illinois residual drug possession statute does not qualify as a predicate "felony drug offense" for purposes of sentencing enhancements under the CSA because the state law is categorically broader than the federal statute. The Government contends the "categorical approach" does not apply to the CSA's definition of "felony drug offense" and, even if it does, looking at Stewart's conduct underlying his prior conviction satisfies the federal recidivism statute. "There is little authority on this question." United States v. Brown , 598 F.3d 1013, 1015 (8th Cir. 2010).
A. "Felony Drug Offense"
Stewart contends his 2000 conviction for possession of a "controlled substance" under 720 ILCS 570/402(c) is categorically broader than the federal definition of a "felony drug offense" and therefore cannot serve as a predicate statutorily enhancing his sentence. See Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the Taylor "categorical approach" to federal recidivism statutes, courts generally ignore the particular facts of the prior offense and "focus solely on whether the elements of the crime of conviction sufficiently match the elements of the [federal statute]." Mathis , 136 S. Ct. at 2248. When a statute is "divisible"—that is, when the statute "sets out one or more elements of the offense in the alternative"—a modified approach allows courts to look beyond the face of the statute and consult additional documents to specify elements under which the defendant was actually convicted. Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). But where a statute merely sets forth various means by which a statute may be violated, as opposed to different elements , the categorical approach applies. Id. at 258, 133 S.Ct. 2276 ; see also Mathis , 136 S. Ct. at 2249.
" ‘Elements’ are the ‘constituent parts’ of a crime's legal definition—the things the ‘prosecution must prove to sustain a conviction’ " at trial or in a plea hearing. Mathis , 136 S. Ct. at 2248 (quoting Elements , Black's Law Dictionary 634 (10th ed. 2014)); see United States v. McMillan , 863 F.3d 1053, 1056 (8th Cir. 2017). "Means," by contrast, are "[h]ow a given defendant actually perpetrated the crime." Mathis , 136 S. Ct. at 2251.
In United States v. De La Torre , the United States Court of Appeals for the Seventh Circuit applied the "categorical approach" to a defendant's 1993 convictions under 720 ILCS 570/402(c) and held they could not constitute felony drug offenses under § 841(b)(1)(A) to enhance his sentence. 940 F.3d 938, 949 (7th Cir. 2019). The Seventh Circuit concluded, and the Government conceded, that the Illinois statute prohibited more expansive conduct than federal law by criminalizing the possession of more substances than federal law under the CSA. Id. ; see also Najera-Rodriguez v. Barr , 926 F.3d 343, 356 (7th Cir. 2019) (concluding 720 ILCS 570/402(c) is not divisible, demanding the categorical approach). Unlike the federal CSA, § 402(c) criminalized "propylhexedrine" as a Schedule V controlled substance at the time of the defendant's predicate conviction. Id. (citing United States v. Elder , 900 F.3d 491, 501 (7th Cir. 2018) ); see 720 ILCS 570/212(d) (1993). Stewart relies on primarily on De La Torre in advocating for the reversal of his enhanced sentence. See also United States v. Ruth , 966 F.3d 642, 646–50 (7th Cir. 2020) (citing Shular v. United States , ––– U.S. ––––, 140 S. Ct. 779, 206 L.Ed.2d 81 (2020) ) (concluding prior conviction under § 401(c) for possession with intent to deliver "cocaine," as defined by Illinois law, was categorically broader than the federal definition of "cocaine" as a "narcotic drug" defined by the CSA and thus could not constitute a "felony drug offense" to support a sentencing enhancement).
Stewart did not raise this argument attacking the Government's § 851 information at the time of sentencing or in his direct appeal of his conviction and has therefore procedurally defaulted his substantive claim in Ground 1. See Jennings v. United States , 696 F.3d 759, 764 (8th Cir. 2012) (citing Bousley v. United States , 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ). To overcome procedural default, Stewart must show "both (1) a cause that excuses the default, and (2) actual prejudice from the errors that are asserted." Matthews v. United States , 114 F.3d 112, 113 (8th Cir. 1997). "For cause to exist, the external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McCleskey v. Zant , 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Stewart urges the Court to review the merits of his Taylor claim under a "plain error" analysis. See generally United States v. Coleman , 961 F.3d 1024, 1027 (8th Cir. 2020) (citing United States v. Olano , 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ). That doctrine applies under Rule 52(b) of the Federal Rules of Criminal Procedure on direct review where arguments presented in appellate proceedings were not raised before the district court—not on review of a prisoner's § 2255 motion. United States v. Frady , 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (concluding "the ‘plain error’ standard is out of place when a prisoner launches a collateral attack against a criminal conviction" and holding the lower court's use of it "was contrary to long-established law").
Stewart can likely show prejudice. Absent the § 851 enhancement predicated on his prior conviction under 720 ILCS 570/402(c), Stewart was subject to a statutory minimum sentence of only 180 months’ imprisonment (120 months’ imprisonment on Count 1 followed by a consecutive 60 months’ imprisonment in Count 2). His pre-enhancement guideline range was 228 to 270 months’ imprisonment. And at sentencing, the Court indicated its sympathy for Stewart's situation and desire to grant a downward variance. See Sent'g Tr. at 19 ("If I had a choice here, I would not give you a 25-year sentence, but I don't.").
Had defense counsel timely objected to the Government's § 851 notice on the grounds Stewart now asserts, the Government could have modified the information to potentially include other prior drug convictions under Illinois's drug manufacture and delivery statute, 720 ILCS 570/401. See PSR ¶¶ 46a, 46b, 46c, Crim. Case, ECF No. 113. Violations of 720 ILCS 560/401 begin as Class 3 felonies, which carry a minimum penalty of two years’ imprisonment. 730 ILCS 5/5-4.5-40(a). Under Eighth Circuit law, a conviction under § 401 may similarly serve as "felony drug offense," producing the same effect of raising the statutory minimum. See United States v. Roundtree , 534 F.3d 876, 882 (8th Cir. 2008) (holding prior § 401(d) conviction to qualify as a predicate "felony drug offense" because is a " ‘drug offense’ punishable by more than one year imprisonment"). But see Ruth , 966 F.3d at 647 (holding § 401(c) is categorically broader than a federal "felony drug offense" and cannot serve as a predicate conviction to enhance a defendant's sentence under the CSA).
The question is whether Stewart can show cause. Stewart claims his counsel's failure to challenge the predicate conviction at sentencing and on appeal robbed him of his chance to litigate this issue in his criminal case. See Apfel , 97 F.3d at 1076 ("Absent unusual circumstances, a showing of ineffective assistance of counsel satisfies both cause and prejudice."). The merits of his § 2255 motion therefore rise or fall with his claim for ineffective assistance of counsel in Ground 2.
B. Ineffective Assistance of Counsel
To show counsel failed to provide constitutionally effective assistance under the Sixth Amendment, a § 2255 movant must show: (1) counsel's representation was deficient; and (2) the deficiency was prejudicial. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Stewart bears the burden of demonstrating counsel's performance fell below an objective standard of reasonableness. Id. at 687–88, 104 S.Ct. 2052. Prejudice is present where there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. If Stewart fails to make a sufficient showing on either one of the Strickland elements, he is not entitled to relief. See id. at 697, 104 S.Ct. 2052.
Although counsel admits he did not challenge the Government's enhancement notice at sentencing or on appeal, [ECF No. 7 ¶ 44], the Court is unable to conclude an essential duty was breached based on Taylor and its progeny. "[C]ounsel is not ineffective for failing to raise an argument that was novel at the time of the proceeding, even if later found to be meritorious." Pierce v. United States , 686 F.3d 529, 533 (8th Cir. 2012). Several reasons illuminate this holding.
1. Applicability of the categorical approach
First, it is not clear that the categorical approach applies to sentencing enhancements under the CSA. The categorical approach has been employed in major decisions of the United States Supreme Court interpreting sentence enhancements under the Armed Career Criminal Act ("ACCA"), see, e.g., Mathis , 136 S. Ct. at 2248–49 ; Descamps , 570 U.S. at 267–68, 133 S.Ct. 2276, and the Immigration and Nationality Act ("INA"), see, e.g., Mellouli v. Lynch , 575 U.S. 798, 135 S. Ct. 1980, 1985–87, 192 L.Ed.2d 60 (2015) ; Moncrieffe v. Holder , 569 U.S. 184, 190–92, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). In other instances, the "circumstance-specific approach" applies, and courts look to "the specific way in which an offender committed the crime on a specific occasion" to determine whether the prior conviction qualifies as a predicate offense for purposes of enhancing his or her sentence under the federal statute. Nijhawan v. Holder , 557 U.S. 29, 34, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). Though the Supreme Court has hinted at the categorical approach's application to other contexts, see Mathis , 136 S. Ct. at 2251 n.2, it has not applied that analysis directly to the CSA.
The Supreme Court has, however, articulated three factors to consider when determining whether a federal recidivism statute is susceptible to overbreadth, subjecting it to a categorical analysis. Mathis , 136 S. Ct. at 2252–53 ; see also Taylor , 495 U.S. at 600–01, 110 S.Ct. 2143. The first factor focuses on the statute's text and legislative history, examining whether Congress intended the recidivism statute to refer to a defendant's conviction or actual conduct. Mathis , 136 S. Ct. at 2252. The second factor considers whether applying a circumstance-specific approach would raise "Sixth Amendment concerns that would arise from sentencing courts’ making findings of fact that properly belong to juries." Descamps , 570 U.S. at 267, 133 S.Ct. 2276. The third factor then considers whether a factual approach presents "practical difficulties and potential unfairness" to defendants. Id. (quoting Taylor , 495 U.S. at 601, 110 S.Ct. 2143 ).
The circuits are divided on the question. See generally Brock-Miller v. United States , 887 F.3d 298, 306–07 (7th Cir. 2018) (surveying cases). The United States Courts of Appeals for the First, Fourth, Fifth, and Ninth Circuits apply the categorical approach. E.g., United States v. Ocampo-Estrada , 873 F.3d 661, 667–69 (9th Cir. 2017) ; United States v. Brown , 500 F.3d 48, 59 (1st Cir. 2007) ; United States v. Nelson , 484 F.3d 257, 261 n.3 (4th Cir. 2007) ; United States v. Curry , 404 F.3d 316, 319 n.6, 320 (5th Cir. 2005). The Sixth and Tenth Circuits do not. E.g., United States v. Hayes , 736 F. App'x 719 (10th Cir. 2018) ; United States v. Soto , 8 F. App'x 535, 541 (6th Cir. 2001).
Meanwhile, Eighth Circuit precedent is unclear. In United States v. Hawkins , the court held the very same Illinois statute at issue in this case, 720 ILCS 570/402(c), can serve as a predicate felony drug offense for purposes of the § 841(b)(1)(A) statutory enhancement. 548 F.3d 1143, 1150 (8th Cir. 2008). The court rejected the argument that a conviction under 720 ILCS 570/402(c) (2000) "should not count as a prior drug felony ... because it would not have been a felony under federal law": "[t]he term ‘felony drug offense,’ " the panel emphasized, "is broadly defined to include, in relevant part, offenses ‘punishable by imprisonment for more than one year under any federal or state law. ’ " Id. (quoting United States v. Samuels , 543 F.3d 1013, 1021 (8th Cir. 2008) ). But the Hawkins Court did not mention, or appear to consider, the applicability of the categorical approach to sentencing enhancements under § 841(b).
In a case decided shortly after Hawkins , the Court of Appeals concluded state "simulated" controlled substance convictions could not qualify as predicate felony drug offenses under § 841(b)(1)(A) because they did not "relate to" the federal definition of narcotics under the CSA, over the dissent of one judge on the panel. Brown , 598 F.3d at 1015–18. The panel majority did not disavow the categorial approach, but suggested it was not controlling because "the question here is whether, for purposes of punishing recidivists under an actual drug trafficking statute, Congress expanded the meaning of ‘felony drug offense’ to include prior offenses that involve no drugs." Id. at 1017–18 (recognizing "there is some overlap in purpose between the Iowa statute, viewed categorically, and the CSA"). The dissent would have applied the categorial approach (or, alternatively, a "purpose analysis") to find the state convictions qualified as predicate felony drug offenses. Id. at 1019–20 (Shepherd, J., dissenting).
But a different panel of the court recently applied the categorical approach to a case involving, in part, the statutory enhancement provisions of the CSA. See United States v. Boleyn , 929 F.3d 932, 938 (8th Cir. 2019) (applying the "serious drug offense" and "felony drug offense" mandatory minimums of 18 U.S.C. § 924(e)(2)(A)(ii) and 21 U.S.C. § 802(44), respectively, and career offender enhancement of USSG § 4B1.1 ). There, the court considered whether an Iowa law rendering it unlawful for any person to "manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance," could constitute an ACCA and CSA predicate "serious drug offense" or "felony drug offense." Id. (quoting Iowa Code § 124.401 ); see also id. at 935–36 (outlining "the common issue" under the statutes). "Looking only to the fact of a prior conviction and the statutory definition of a drug offense under [state law] ... as the categorical approach requires," the panel concluded that "convictions under this state statute categorically ‘involve’ and ‘relate to’ the offenses described in ... 21 U.S.C. § 802(44)." Id.
At least one district court in this circuit has declined to apply the categorical approach in determining whether prior state convictions could predicate the CSA's statutory enhancement provision. See Hakim v. United States , No. CIV 08-4097, 2018 WL 4082503, at *6–7 (D. S.D. Aug. 27, 2018) (rejecting the categorical approach because "[t]he Court is not aware of any authority for the proposition that the categorical approach would apply to determine if a prior drug offense qualifies as a ‘felony drug offense’ pursuant to § 841(b)(1)(A)").
The treatment of CSA predicate offenses in Brown and Boleyn runs counter to the Eighth Circuit's analysis in Hawkins and Samuels. This discrepancy in the state of circuit law and treatment of prior convictions under the CSA at the time of Stewart's sentencing casts doubt on his argument that counsel's error amounted to a breach in professional duty that fell below an objective standard of reasonableness. And despite the confused state of the law, the ruling in Hawkins as the earlier decision reigns: Stewart's prior conviction under the Illinois law is a "drug offense" that amounts to a "state law felony ... punishable by imprisonment for more than one year." 548 F.3d at 1150 (citing 720 ILCS 570/402(c) (2000) ).
2. Statute of conviction
Second, it is not clear that, despite the Seventh Circuit's conclusion in De La Torre , Stewart's conviction under § 402(c) is categorically broader than the CSA's definition of "felony drug offense" in § 802(44). De La Torre considered the scope of the law as it existed in 1993; Stewart was convicted under the 2000 version of the statute.
In 1993, a conviction under § 402(c) outlawed the possession of "propylhexedrine" as a Schedule V controlled substance. 720 ILCS 570/212(d) (1993) ; De La Torre , 940 F.3d at 949 (citing Elder , 900 F.3d at 501 ). Propylhexedrine is a form of over-the-counter nasal decongestant capable of producing psychostimulant effects when ingested in excess of medically-recommended amounts, similar to amphetamine. The Seventh Circuit's decision held that propylhexedrine was not a substance "relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances" as defined under the CSA and therefore the Illinois residual drug possession statute criminalized categorically more conduct than the CSA by including substances that did not constitute a "felony drug offense" under federal law. 940 F.3d at 948–49. The Illinois Code amended § 212 in 2000, removing "propylhexedrine" from § 212(d) and replacing it with "pyrovalerone." Compare 720 ILCS 520/212(d) (1993) with 720 ILCS 520/212(d) (2000). Pyrovalerone is a psychoactive stimulant used to combat fatigue.
See Propylhexedrin , Nat'l Inst. Of Health (last visited Aug. 2, 2021), https://drugs.ncats.io/drug/LQU92IU8LL; Propylhexedrin , Nat'l Libr. of Med. (last visited Aug. 2, 2021), https://pubchem.ncbi.nlm.nih.gov/compound/Propylhexedrine #section=Drug-and-Medication-Information.
See Pyrovalerone , Nat'l Inst. Of Health (last visited Aug. 2, 2021), https://drugs.ncats.io/drug/VOU69C02JP; Pyrovalerone , Nat'l Libr. of Med. (last visited Aug. 2, 2021), https://pubchem.ncbi.nlm.nih.gov/compound/Pyrovalerone.
Without propylhexedrine, it is not immediately clear that the Illinois criminal statute encompasses a broader swath of conduct than § 802(44). The CSA's definition of "felony drug offense" includes "stimulant substances" that "the Attorney General, after investigation, has found to be, and by regulation designated as," either "habit forming" or "having[ ] a potential for abuse" due to its "stimulant effect on the central nervous system" or "hallucinogenic effect." 21 U.S.C. § 802(9)(B), (D). Pyrovalerone was and is a Schedule V controlled substance under regulations promulgated by the Drug Enforcement Administration ("DEA"). 53 Fed. Reg. 10869-02 (Apr. 4, 1988) (codified at 21 C.F.R. § 1308.15(d)(1) ); see also Scheduling Actions, Diversion Control Div., Drug Enf't Admin., U.S. Dep't of Just., https://www.deadiversion.usdoj.gov/schedules/orangebook/a_sched_alpha.pdf. Propylhexedrine, by contrast, was removed from the DEA regulations in 1991—rendering the defendant's 1993 conviction under § 402(c) categorically broader than the CSA's definition of a "felony drug offense" in De La Torre. 56 Fed. Reg. 61382-01 (Dec. 3, 1991). Thus, even if the categorical approach applies, the statute underlying Stewart's 2000 Illinois conviction includes a "stimulant" that appears to be consistent in scope with the CSA to qualify as a predicate "felony drug offense."
IV. CONCLUSION
For the reasons discussed above, Stewart's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, [ECF No. 1], is DENIED.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings in the United States Courts, the Court must issue or deny a Certificate of Appealability when it enters a final order adverse to the movant. District courts have the authority to issue certificates of appealability under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). A certificate of appealability may issue only if the defendant "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A substantial showing is a showing "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ " Miller-El v. Cockrell , 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citation omitted).
Reasonable jurists could, and in fact do, disagree about the applicability of the "categorical approach" under the Supreme Court's Sixth Amendment jurisprudence to sentencing enhancements under the CSA. And in this case, the Court believes Stewart has presented a substantial showing of the denial of a constitutional right on his claims. Stewart's request for a certificate of appealability to proceed before the United States Court of Appeals for the Eighth Circuit is therefore GRANTED.
IT IS SO ORDERED.