United States v. Derrick Neville, Jr. ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 23, 2019
Decided November 19, 2019
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 18‐3431
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Western Division.
v. No. 3:17‐cr‐50032‐1
DERRICK T. NEVILLE, JR., Frederick J. Kapala,
Defendant‐Appellant. Judge.
ORDER
Derrick Neville, Jr. pleaded guilty to possessing a controlled substance with
intent to distribute, 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm, 18
U.S.C. § 922(g)(2), and was sentenced to 186 months in prison under the Armed Career
Criminal Act, 18 U.S.C. § 924(e). He has appealed, but his lawyer asserts that the appeal
is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967).
Neville opposes the motion using the procedure in Circuit Rule 51(b). Counsel’s brief
explains the nature of the case and addresses the issues that an appeal of this kind
might be expected to involve. Because the analysis appears thorough, we limit our
No. 18‐3431 Page 2
review to the subjects that counsel and Neville discuss. See United States v. Bey, 748 F.3d
774, 776 (7th Cir. 2014).
Counsel first considers whether Neville could challenge the voluntariness of his
guilty plea. Counsel does not expressly indicate whether he spoke to Neville about
challenging the plea, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012);
United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002), and Neville is silent about the
issue in his Rule 51(b) response. But the omissions do not require that we deny the
Anders motion. The transcript of the plea colloquy shows that the district court accepted
the guilty plea only after substantially complying with the requirements of Federal Rule
of Criminal Procedure 11. See Konczak, 683 F.3d at 349. During the colloquy, Neville said
that he understood the nature of the proceeding and the questions he was being asked.
The judge explained to him what rights he was relinquishing by pleading guilty, see
Rule 11(b)(1)(B)–(F), warned him of the consequences of the plea, see Rule 11(b)(1)(H)–
(N), assured itself that the plea was voluntary, see Rule 11(b)(2), and determined that
the plea had a factual basis. See Rule 11(b)(3). The only omission we see is that the judge
did not inform Neville that non‐citizens may be removed from the United States if
convicted, see Rule 11(b)(1)(O), but this omission did not prejudice Neville because he is
a United States citizen. On this record, any argument challenging the voluntariness of
the plea would be frivolous.
Counsel next considers whether Neville could challenge his classification as an
Armed Career Criminal under § 924(e) and appropriately concludes that this argument
would be frivolous because he waived it during the district court’s proceedings. A party
waives an argument when he intentionally (as opposed to negligently) chooses not to
raise it. United States v. Waldrip, 859 F.3d 446, 449 (7th Cir. 2017). In his sentencing
memorandum, Neville stated that he expressly agreed with his classification as an
Armed Career Criminal and the Sentencing Guideline calculations set forth in the
presentence report. In that memorandum, he acknowledged that “he was afforded the
right to challenge his classification,” but that his “attorney believe[d] that after
reviewing [his] criminal history, the PSR and the applicable case law that there [was]
not a good faith basis to challenge his classification.” Later, at the sentencing hearing,
Neville’s counsel reiterated that he could not “object to or disagree with” the
prosecutor’s guideline calculations and agreed that Neville’s criminal history “falls with
the case law regarding him being classified as an armed career criminal.” By
intentionally relinquishing the opportunity in these two instances to contest his Armed
Career Criminal classification, Neville waived the right to challenge it on appeal. See
No. 18‐3431 Page 3
Waldrip, 859 F.3d at 449. Accordingly, any challenge to the classification—and the
application of the Guidelines—would be frivolous.
In his Rule 51(b) response, however, Neville challenges the classification and
contends that his two convictions under the Illinois Controlled Substances Act, 720 ILCS
§ 570/401(c), are not “serious drug offenses” under the ACCA.
To determine whether a prior conviction counts as a serious drug offense under
the ACCA, courts apply a “categorical” approach that focuses on the elements of the
crime of conviction, rather than the facts underlying the conviction. Mathis v. United
States, 136 S. Ct. 2243, 2248 (2019). If the elements of the crime of conviction reach more
broadly than the definition of a “serious drug offense” under the ACCA—in other
words, if it is possible to violate the underlying statute without committing a “serious
drug offense” within the meaning of the ACCA—then the conviction cannot serve as a
predicate offense under the ACCA. United States v. Williams, 931 F.3d 570, 575 (7th Cir.
2019); see also 18 U.S.C. § 924(e).
In interpreting the ACCA, the Supreme Court has recognized a “narrow range of
cases” in which courts may look beyond the statute of conviction to determine if it
qualifies as an ACCA predicate offense. Taylor v. United States, 495 U.S. 575, 602 (1990).
If a statute is “divisible”—that is, if it identifies multiple crimes under one section or
heading—courts may apply a “modified categorical approach” and examine a limited
class of documents, such as indictments or plea agreements, to determine if the
defendant was convicted of a version of the crime that falls within the ACCA definition
of a “serious drug offense.” Descamps, 570 U.S. at 257, 261–63.
Neville maintains that the list of substances criminalized in 720 ILCS § 570/401(c)
sweeps more broadly than the list of substances contemplated by 18 U.S.C. § 924(e).
Illinois’s § 570/401(c) outlaws, among other things, possession with intent to deliver
certain controlled substances and lists the substances it criminalizes in individual
subsections. The federal § 924(e)(ii) defines a “serious drug offense” as a drug
conviction under state law, drawing its list of criminalized substances from the
Controlled Substances Act, 21 U.S.C. § 802. Indeed, we recently determined that 720
ILCS § 570/402(c)—a provision similar to § 570/401(c) that criminalizes drug possession
and uses subsections to list a comparable set of substances—is not divisible and
includes substances that are not controlled substances under federal law. Najera‐
Rodriguez v. Barr, 926 F.3d 343, 348, 356 (7th Cir. 2019). As a result, we concluded that a
conviction under 720 ILCS § 570/402(c) cannot serve as a “felony drug offense” for
No. 18‐3431 Page 4
federal sentencing purposes. See United States v. De La Torre, 940 F.3d 938, 949 (7th Cir.
2019).
Even if Neville’s argument were not barred by his waiver in the district court, it
would be foreclosed by the circumstances of his guilty plea. Unlike the defendant in
Najera‐Rodriguez, he pleaded guilty to violating two specific subsections of the Illinois
Controlled Substances Act, 720 ILCS § 570/401(c)(1) and § 570/401(c)(2), rather than
§ 570/401(c) generally. These two subsections criminalize possession of heroin and
cocaine. These provisions are divisible so that the modified categorical approach can
apply. There is thus no ambiguity about which substances are implicated by Neville’s
convictions and whether those substances are also criminalized under federal law.
Accordingly, we can determine that his convictions count as “serious drug offenses”
under federal law without needing to look beyond the statutory text. We add that we
have previously rejected a categorical challenge to the use of § 570/401 as a predicate
drug offense under the Guidelines, albeit on different grounds. See United States v.
Redden, 875 F.3d 374, 375 (7th Cir. 2017).1
Finally, we agree with counsel that it would be frivolous to challenge the
reasonableness of Neville’s sentence, which is two months below the low end of his
correctly calculated guideline range of 188 to 235 months. Where, as here, the sentence
is below the guideline range, we presume that it is reasonable. See Rita v. United States,
551 U.S. 338, 347–56 (2007); United States v. Griffith, 712 F.3d 1006, 1012 (7th Cir. 2013).
Counsel cannot identify any grounds for overcoming that presumption, nor can we. See
United States v. Melendez, 819 F.3d 1006, 1014 (7th Cir. 2016). The district court properly
considered each relevant 18 U.S.C § 3553(a) sentencing factor, specifically discussing
Neville’s personal background (placing special emphasis on his youth, remorse, and
difficult upbringing, but weighing them against his mental illness and substance abuse),
his criminal history (noting that he had a “chronic” criminal history beginning at age
thirteen and committed the current offense nine months after being released on parole),
and the need to protect the public and adequately deter future criminal conduct
(concluding that a sentence below the guideline range was appropriate but determining
1 In a supplement to his Circuit Rule 51 statement filed on November 8, 2019, Neville cited
Najera‐Rodriguez, asserted that his 2014 conviction in DeKalb County was for a violation of § 570/402(c),
and concluded that Najera‐Rodriguez therefore bars reliance on that conviction for enhancing his sentence.
This argument is not correct. Paragraph 64 of the Presentence Report shows that the DeKalb County
conviction was for violating § 570/401(c)(2), not § 402(c). Section 401(c)(2) is divisible in a way that
§ 402(c) is not. The DeKalb County conviction under § 401(c)(2) was properly counted as a serious drug
offense.
No. 18‐3431 Page 5
that a term of supervised release following imprisonment would benefit both Neville
and the community).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.