United States v. Lewis, Jeffrey L. , 237 F. App'x 105 ( 2007 )

NONPRECEDENTIAL DISPOSITION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
Argued June 12, 2007
Decided June 26, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3781 Appeal from the United States
District Court for the
UNITED STATES OF AMERICA, Northern District of Indiana,
Plaintiff-Appellee, Hammond Division.
v. No. 2:05 CR 202
JEFFREY LYDELL LEWIS, James T. Moody,
Defendant-Appellant. Judge.
ORDER
Jeffrey Lewis pleaded guilty to possession of a firearm by a felon and was
sentenced to fifteen years in prison. On appeal he challenges his term of
imprisonment, arguing that the district court improperly enhanced his sentence
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), after
wrongfully concluding that a 1997 state conviction for delivery of a controlled
substance constituted a “serious drug offense.” We affirm.
The facts are undisputed. Lewis was charged with one count of possessing a
firearm and ammunition in violation of 18 U.S.C. § 922(g) after police officers
discovered a loaded pistol in his home. Following indictment but before Lewis
No. 06-3781 Page 2
pleaded guilty, the government notified him that it would seek an enhanced
sentence under the ACCA based upon his Illinois convictions for robbery in 1989,
armed robbery in 1990, and delivery of a controlled substance in 1997. Despite
Lewis’s extensive criminal history, the government did not identify any other prior
convictions that might count toward enhanced sentencing. If applicable, the ACCA
would increase Lewis’s sentence from a maximum of ten years’ imprisonment,
18 U.S.C. § 924(a)(2), to a mandatory minimum of fifteen years, id. § 924(e)(1).
Lewis conceded that his robbery convictions qualified as two of the three
prior convictions required for enhancement under the ACCA but objected that his
1997 drug conviction was not a “serious drug offense” and thus did not qualify. He
argued that to qualify as a serious drug offense under the ACCA, the crime must
carry a maximum penalty of at least ten years’ imprisonment. 18 U.S.C.
§ 924(e)(2)(A). But the statute of conviction, read in isolation, classifies his offense
as a Class 2 felony, 720 ILL. COMP. STAT. 570/401(d), carrying a maximum penalty of
seven years’ imprisonment, 730 ILL. COMP. STAT. 5/5-8-1(a)(5). And he in fact
received seven years for the offense. Thus, Lewis reasoned, his drug conviction
could not support an enhanced sentence under the ACCA.
The district court rejected Lewis’s argument and imposed the minimum term
of imprisonment mandated by the ACCA. Relying on two provisions of the Illinois
Code, the district court acknowledged that a Class 2 felony ordinarily carries a
maximum of seven years’ imprisonment, 730 ILL. COMP. STAT. 5/5-8-1(a)(5), but
reasoned that because Lewis had at least two prior convictions that qualified him
for sentencing under Illinois’s recidivism statute, id. 5/5-5-3(c)(8), he was actually
subject to thirty years’ imprisonment, id. 5/5-8-1(a)(3).1 That conclusion is
consistent with a notation in the state-court judgment: “Class 2 offense sentenced
under 6-30 range.” Accordingly, the district court determined that the 1997
conviction constituted a serious drug offense as well as the third felony necessary to
establish Lewis’s status as an armed career criminal.
1
Illinois’s recidivism statute provides:
When a defendant, over the age of 21 years, is convicted of a Class 1 or
Class 2 felony, after having twice been convicted in any state or federal
court of an offense that contains the same elements as an offense now
classified in Illinois as a Class 2 or greater Class felony and such
charges are separately brought and tried and arise out of [a] different
series of acts, such defendant shall be sentenced as a Class X offender.
730 ILL. COMP. STAT. 5/5-5-3(c)(8). The sentence for a Class X offender “shall be not
less than 6 years and not more than 30 years.” Id. 5/5-8-1(a)(3).
No. 06-3781 Page 3
The sole issue on appeal is whether the district court correctly concluded that
Lewis’s 1997 conviction for delivery of a controlled substance is a serious drug
offense under the ACCA. According to Lewis, the district court was allowed to
consider only the statute of conviction and charging documents to determine
whether he was exposed to ten or more years’ imprisonment; those documents, he
insists, indicate he was subject to a maximum of seven years. Rather than confine
itself to these documents, Lewis continues, the district court evaluated whether he
was subject to an enhanced penalty under Illinois’s recidivism statute even though,
he says, the government presented no evidence “of conclusive significance” that the
Illinois court sentenced him as a repeat offender. Consequently, Lewis contends,
the district court improperly concluded that his 1997 conviction carried a maximum
of thirty years’ imprisonment.
To qualify as a serious drug offense under the ACCA, a conviction under state
law for a drug crime must expose the defendant to ten or more years’ imprisonment.
18 U.S.C. § 924(e)(2)(A); United States v. Henton, 374 F.3d 467, 469 (7th Cir. 2004).
In determining whether a state conviction meets this criterion, the district court
may consult evidence from the state proceeding such as the statute of conviction,
charging documents, a bench-trial judge’s formal rulings of law and findings of fact,
and other “conclusive records made or used” during the judicial process. Shepard v.
United States, 544 U.S. 13, 20-21 (2005). The court’s inquiry focuses not on the
term of imprisonment the defendant actually received, Henton, 374 F.3d at 470, but
on the maximum penalty to which the defendant was exposed, id.; United States v.
Perkins, 449 F.3d 794, 796 (7th Cir. 2006).
Evidence from the state record supports the district court’s finding that even
though Lewis was sentenced to seven years’ imprisonment for his 1997 drug
conviction, he was subject to a maximum of thirty years. At sentencing on Lewis’s
federal conviction, the government produced a certified copy of the judgment for
Lewis’s 1997 state drug conviction, which explicitly describes the crime as a
“Class 2 offense sentenced under 6-30 range.” This notation is wholly consistent
with the state court having found Lewis eligible for a maximum of thirty years’
imprisonment under Illinois’s recidivism statute. See People v. Lathon, 740 N.E.2d
377, 381 (Ill. App. Ct. 2000) (explaining that even though 730 ILL. COMP. STAT.
5/5-5-3(c)(8) “increases the defendant’s sentence, it does not change the
classification of the offense with which defendant has been charged and convicted”).
The judgment is the type of evidence contemplated by Shepard as providing a
conclusive record of the state-court proceeding. See 544 U.S. at 20-21. Thus, the
district court correctly concluded that Lewis’s 1997 drug conviction constituted a
serious drug offense under the ACCA.
AFFIRMED.