United States O F America v. Jeffrey Johnson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1277
U NITED S TATES O F A MERICA,
Plaintiff-Appellee,
v.
JEFFREY JOHNSON ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cr-770 — Andrea R. Wood, Judge.
____________________
A RGUED J ANUARY 13, 2022 — DECIDED A UGUST 26, 2022
____________________
Before HAMILTON , BRENNAN , and J ACKSON -A KIWUMI , Cir-
cuit Judges.
JACKSON -A KIWUMI , Circuit Judge. During a search of Jeffrey
Johnson’s residence for firearms, ammunition, and related
documents, officers seized over 100 grams of a substance con-
taining heroin and furanylfentanyl. Following the denial of
his suppression motion, Johnson went to trial and a jury con-
victed him of intent to distribute a controlled substance con-
taining an analogue of fentanyl, which carries a 10-year

-- 1 of 15 --

2 No. 21-1277
mandatory prison sentence. The district court sentenced John-
son 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 De-
partment executed a search warrant at Johnson’s apartment.
The search warrant authorized law enforcement to search for:
Firearms, short barreled, ammunition, para-
phernalia for maintaining firearms, any photo-
graphs of individuals with firearms, any rec-
ords 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 ceil-
ing 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 detecta-
ble amount of “any analogue of [fentanyl]” carries a manda-
tory minimum of 10 years’ imprisonment. 21 U.S.C.
§ 841(b)(1)(A)(vi).

-- 2 of 15 --

No. 21-1277 3
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 dis-
trict court submitted a special verdict form to the jury ad-
dressing the enhanced penalty for offenses involving 100
grams or more of “any analogue of [fentanyl].” The court in-
structed the jury that “any analogue of [fentanyl]” is defined
as “any substance that has a chemical structure that is sub-
stantially similar to the chemical structure of fentanyl.” John-
son 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 fenta-
nyl. Johnson faced a 10-year mandatory minimum prison sen-
tence. 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 furanylfenta-
nyl 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

-- 3 of 15 --

4 No. 21-1277
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 dis-
trict court concluded that the statutory definition of “con-
trolled substance analogue” in § 802(32) did not apply to the
word “analogue” in § 841(a)(1)(A)(vi) which, by itself, is un-
defined. Applying the ordinary and plain meaning of the
term, the district court explained that the definition of “ana-
logue” means “something similar or comparable to some-
thing 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 defini-
tional “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 coun-
sel 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. Partic-
ularly, Johnson argued that the warrant authorized officers to

-- 4 of 15 --

No. 21-1277 5
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 unrea-
sonably 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 omis-
sion 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 ineffec-
tive 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 con-
victions 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 sub-
stances 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
1 The career offender predicates were Johnson’s 2012 conviction for man-
ufacture or delivery of heroin and his 2006 conviction for manufacture or
delivery of a controlled substance.

-- 5 of 15 --

6 No. 21-1277
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 assis-
tance 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 deter-
mination that Johnson’s motion was untimely and that he oth-
erwise 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 be-
cause there was no strategic reason for his prior counsel’s fail-
ure to make the argument regarding the scope of the items

-- 6 of 15 --

No. 21-1277 7
seized. Although ineffective assistance of counsel may be suf-
ficient to establish good cause in some cases, in this case, it is
not. As it currently stands, the record is silent as to prior coun-
sel’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 po-
tentially shown enough evidence to rebut this presumption.
Absent a record of deficiency or any extrinsic evidence, how-
ever, Johnson cannot show good cause for his untimely mo-
tion. 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 de-
fense counsel was in fact a tactical move, flawed only in hind-
sight.”).
Even if Johnson was able to show good cause for his un-
timely suppression motion, the search of his residence was
lawful. The officers in this case did not, contrary to Johnson’s
argument, exceed the scope of the warrant. In executing a
search warrant, “officers are entitled to search anywhere the
items to be seized might likely be discovered, so long as that
is within the place authorized to be searched.” Archer v.
Chisholm, 870 F.3d 603, 617 (7th Cir. 2017) (citation omitted).
“The objects of the search set the boundaries of the scope.” Id.
(“[i]f you’re looking for an adult elephant, searching for it in
a chest of draws is not reasonable”) (citation omitted). But an
officer may also seize evidence that, although not described
in the warrant, is subject to seizure under the plain view

-- 7 of 15 --

8 No. 21-1277
doctrine. United States v. Key, 889 F.3d 910, 912 (7th Cir. 2018);
Russell v. Harms, 397 F.3d 458, 465 (7th Cir. 2005). An item falls
within the plain view doctrine if: (1) the officer has a legal
right to be in the place from where he sees the object subject
to seizure; (2) the officer has a lawful right of access to the ob-
ject itself; and (3) the property’s incriminating nature is “im-
mediately apparent.” United States v. McGill, 8 F.4th 617, 622
(7th Cir. 2021). For an item’s incriminating nature to be “im-
mediately apparent,” an officer must have “probable cause to
believe that the item is contraband or otherwise linked to
criminal activity.” Id.
Johnson contends that the officers’ seizure of the drugs
went beyond the scope of the warrant, which authorized of-
ficers to seize only firearms and related items. Rather, Johnson
maintains, the officers searched for anything illegal, including
evidence of stolen vehicle and drugs. The record does not sup-
port Johnson’s contention. There is no dispute that the officers
were legally within Johnson’s residence. The warrant at issue
in this case authorized officers to search Johnson’s residence
for “[f]irearms [and] ammunition,” and “paraphernalia for
maintaining firearms … photographs [and] any records of
firearms transactions” which could constitute evidence of un-
lawful use of a weapon by a felon. Some of these items, such
as ammunition, could have been found in a ceiling cavity or
in a sock, where the drugs were ultimately found. On this rec-
ord, the incriminating nature of the sock was “immediately
apparent” because the officers had probable cause to believe
that the sock contained “contraband or [was] otherwise linked
to criminal activity.” McGill, 8 F.4th at 622 (citations and quo-
tations omitted); see also Texas v. Brown, 460 U.S. 730, 741–742
(1983) (allowing further investigation to confirm the

-- 8 of 15 --

No. 21-1277 9
incriminating character of seized evidence). The officers’ sei-
zure of the drugs was therefore lawful under the plain view
doctrine.
B. Furanylfentanyl as an “Analogue of [Fentanyl]”
Next, Johnson argues that the district court erred in sub-
jecting him to a 10-year statutory mandatory minimum under
§ 841(b)(1)(A)(vi), because furanylfentanyl is not an “ana-
logue of [fentanyl]” as used in the statute. As a preliminary
matter, the government contends that we need not even ad-
dress this argument because, by not objecting to a jury in-
struction defining an “analogue of [fentanyl],” Johnson
waived this statutory construction argument.
Although failing to object to a jury instruction may gener-
ally constitute waiver, United States v. Morgan, 929 F.3d 411,
432 (7th Cir. 2019), it is not an automatic bar. United States v.
Natale, 719 F.3d 719, 731 (7th Cir. 2013) (“[W]aiver is not an
absolute bar on our consideration of issues not preserved be-
low … [w]hen the ‘interests of justice’ so require, we may
reach the merits of a waived issue.”). Here, we need not de-
cide this issue because even assuming Johnson only forfeited
the argument as opposed to waiving it, he cannot survive
plain error review.2
2 Johnson indicates that he raised the argument before the district court in
a post-trial motion. However, his motion raised a slightly different argu-
ment under the Ex-Post Facto Clause, which the district court considered
in full. Of course, had Johnson attempted in a post-trial motion to object
belatedly to a jury instruction that had been given without objection at
trial, that would be improper. See, e.g., FED . R. C RIM. P. 30(d)(“[a] party
who objects to any portion of the instructions or to a failure to give a re-
quested instruction must inform the court of the specific objection and the
grounds for the objection before the jury retires to deliberate … Failure to

-- 9 of 15 --

10 No. 21-1277
Johnson’s statutory construction argument starts with the
Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., which
includes both the Anti-Drug Abuse Act of 1986,
§ 841(b)(1)(A)(vi), and the Controlled Substance Analogue
Enforcement Act (Analogue Act), 21 U.S.C § 813. The CSA
makes it “unlawful for any person knowingly or intentionally
… to manufacture, distribute, or dispense, or possess with in-
tent to manufacture, distribute, or dispense, a controlled sub-
stance.” 21 U.S.C. § 841(a). The statute defines “controlled
substance” as “a drug or other substance, or immediate pre-
cursor, included in schedule I, II, III, IV or V of part B of this
subchapter.” Id. at § 802(6).
Under the Anti-Drug Abuse Act, a person who is con-
victed of having “100 grams or more of a mixture or substance
containing a detectable amount of any analogue of [fentanyl]”
faces an enhanced penalty of a mandatory minimum prison
sentence of 10 years. 21 U.S.C. § 841(b)(1)(A)(vi). Neither § 841
nor the definitional statute for the subchapter, § 802, define
“analogue” or “any analogue of [fentanyl].”
Relevant to Johnson’s argument, however, the statute does
define the term “controlled substance analogue.” According
to the statute, a “controlled substance analogue” is:
(i) the chemical structure of which is sub-
stantially similar to the chemical struc-
ture of a controlled substance in schedule
I or II;
object in accordance with this rule precludes appellate review” except for
plain error review).

-- 10 of 15 --

No. 21-1277 11
(ii) which has a stimulant, depressant, or
hallucinogenic effect on the central nerv-
ous system that is substantially similar to
or greater than the stimulant, depressant,
or hallucinogenic effect on the central
nervous system of a controlled substance
in schedule I or II; or
(iii) with respect to a particular person,
which such person represents or intends
to have a stimulant, depressant, or hallu-
cinogenic effect on the central nervous
system that is substantially similar to or
greater than the stimulant, depressant, or
hallucinogenic effect on the central nerv-
ous system of a controlled substance in
schedule I or II.
21 U.S.C. § 802(32)(A). The statute makes clear that the defini-
tion of “controlled substance analogue” does not include “a
controlled substance.” Id. at § (32)(C)(i). Furanylfentanyl is
classified as a Schedule I controlled substance. See 21 C.F.R.
§ 1308.11(42).
This statutory background provides the basis of Johnson’s
argument. Johnson argues that “analogue” or “any analogue
of [fentanyl]” as used in § 841(b)(1)(A)(vi) means the same, or
has the same definition, as “controlled substance analogue.”
See 21 U.S.C. § 802(32). If this is true, then furanylfentanyl,
which is a Schedule I controlled substance, cannot be an “an-
alogue of [fentanyl]” under § 841(b)(1)(A)(vi).
The problem for Johnson is that the term “controlled sub-
stance analogue” does not appear in § 841(b)(1)(A)(vi) where

-- 11 of 15 --

12 No. 21-1277
the fentanyl analogue language is, and the term is treated sep-
arate and apart from “any analogue of [fentanyl].” Congress
specifically used the term “controlled substance analogue” in
other sections of the statute, see §§ 841(b)(7)(A), 861(d)(1), but
not the sentencing enhancement provision at issue here.
§ 841(b)(1)(A)(vi). “Where Congress includes particular lan-
guage in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or ex-
clusion.” Russello v. United States, 464 U.S. 16, 23 (1983). Thus,
“controlled substance analogue” is not the same as “any ana-
logue of [fentanyl].”
Generally, “[s]tatutory definitions control the meaning of
statutory words.” Burgess v. United States, 553 U.S. 124, 129
(2008). But when a term—here, “analogue” or “any analogue
of [fentanyl]”—is not defined, courts look to the plain and or-
dinary meaning of the term. Encino Motorcars, LLC v. Navarro,
138 S. Ct. 1134, 1140 (2018); United States v. Patel, 778 F.3d 607,
613 (7th Cir. 2015). To determine the plain meaning of a tern,
courts frequently look to dictionary definitions and some-
times consider the construction of similar terms in other stat-
utes, as well as the purpose of the statute being interpreted.
Patel, 778 F.3d at 613; see also Chapman v. United States, 500 U.S.
453, 462 (1991). The district court did not plainly err in doing
the same here.
The dictionary defines “analogue” as “a chemical com-
pound that is structurally similar to another but differs
slightly in composition.” Webster’s New Collegiate Diction-
ary (11th ed. 2020); see also Webster’s New Collegiate Diction-
ary (9th ed. 1985) (“a chemical compound structurally similar
to another but differing often by a single element of the same

-- 12 of 15 --

No. 21-1277 13
valence and group of the periodic table as the element it re-
places.”). Johnson does not dispute that furanylfentanyl is an
“analogue” based on the plain and ordinary definition of “an-
alogue” and “any analogue of [fentanyl].” Based on the ordi-
nary rules of statutory construction, the district court did not
plainly err in defining “any analogue of [fentanyl]” and ap-
plying the 10-year enhanced penalty in Johnson’s case.
Although, until today, our circuit had not addressed John-
son’s statutory construction argument, our sister circuit has
(albeit with regards to butyryl fentanyl). In United States v.
McCray, 7 F.4th 40, 46 (2d Cir. 2021), the Second Circuit spe-
cifically rejected the argument that “any analogue of [fenta-
nyl]” should have the same definition of “controlled sub-
stance analogue.” The court then applied the plain and ordi-
nary meaning of “analogue” to reach a conclusion similar to
the one we reach today. We find the reasoning in McCray per-
suasive and further support that the district court did not
plainly err in applying the 10-year enhanced penalty in John-
son’s case. See also United States v. Ramirez, 783 F.3d 687, 694–
95 (7th Cir. 2015) (“We rarely find plain error on a matter of
first impression [,]” since “[m]atters of first impression are un-
likely to be … [sufficiently] obvious”—that is, “so obvious …
that [the] district judge should have intervened without being
prompted by an objection from defense counsel”).
C. Career Offender Status
Johnson’s final contention is that his prior state drug fel-
ony convictions do not fall within the career-offender guide-
line’s definition of “controlled substance offense” because the
Illinois statute for his two prior convictions covers more con-
duct than federal law. We review de novo a district court’s
application of the Sentencing Guidelines, including whether

-- 13 of 15 --

14 No. 21-1277
a prior offense is a predicate “controlled substance offense”
under the guidelines. See United States v. Ruth, 966 F.3d 642,
654 (7th Cir. 2020).
A defendant qualifies as a career offender under U.S.S.G.
§ 4B1.1(a) if, as relevant here, “the defendant has at least two
prior felony convictions of either a crime of violence or a con-
trolled substance offense.” The guidelines define a “con-
trolled substance offense” as:
an offense under federal or state law, punisha-
ble by imprisonment for a term exceeding one
year, that prohibits the manufacture, import, ex-
port, distribution, or dispensing of a controlled
substance (or a counterfeit substance) or the
possession of a controlled substance (or a coun-
terfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b). The guidelines do not define “controlled
substance.”
Johnson has two convictions for the manufacture and/or
delivery of a controlled substance in Illinois. See 720 ILCS
570/401. Johnson argues that his state drug felony offenses do
not qualify as predicate offenses, because the state statute in
question covers a broad range of drugs than those covered by
federal law. For this argument, Johnson relies on the CSA’s
definition of “controlled substances.” 21 U.S.C. § 802(6).
Johnson’s argument is foreclosed by our decision in Ruth,
where we noted that the career-offender guideline and its def-
inition of “controlled substance offense” does not incorporate,
cross-reference, or in any way refer to the CSA. 966 F.3d at
651–52. We therefore declined to import the federal definition

-- 14 of 15 --

No. 21-1277 15
of “controlled substance” into the guidelines and found the
categorical (or modified categorical) approach unnecessary in
this context. Rather, we explained that the career-offender
guidelines defined the term “controlled substance offense”
broadly, so, its definition is most plainly read to “include
state-law offenses related to controlled or counterfeit sub-
stances punishable by imprisonment for a term exceeding one
year.” Id. at 654 (citation omitted). We determined that the
plain and ordinary meaning of “controlled substance” is “any
[] category of behavior-altering or addictive drugs, as heroin
or cocaine, whose possession and use are restricted by law.”
Id. (citation omitted). Based on the natural meaning, we held
that a defendant’s Illinois conviction for a drug offense in vi-
olation of 720 ILCS 570/401(c)(2) was a predicate “controlled
substance offense” under the career-offender guideline. Id. So,
too, is the case here—Johnson’s prior convictions under the
same statute, see 720 ILCS 570/401(c)(1), are predicate “con-
trolled substance offenses” under the career-offender guide-
line.
III
For the reasons stated above, we AFFIRM the district
court’s judgment.

-- 15 of 15 --