United States of America v. Darius J. Morales

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 12, 2023*
Decided May 15, 2023
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-2042
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARIUS J. MORALES
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:19-CR-00874(1)
Amy J. St. Eve,
Circuit Judge.1
O R D E R
Darius Morales appeals his 94-month sentence, arguing that, under § 2K2.1 of the
Sentencing Guidelines, the district court should not have increased his offense level
* We previously granted the parties’ joint motion to waive oral argument. See
F ED. R. A PP . P. 34(a)(2)(C).
1 Sitting by designation.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-2042 Page 2
based on two prior state convictions for selling drugs. Because the court sentenced
Morales in accordance with controlling circuit precedent, we find no error and affirm.
After Morales was convicted of possessing a firearm as a felon, 18 U.S.C.
§ 922(g)(1), he faced sentencing. Probation submitted its presentencing report (PSR),
making two recommendations relevant here. First, Morales’s base offense level was 24
because he had two prior felony convictions for a “controlled substance offense.”
U.S.S.G. § 2K2.1(a)(2). The PSR identified a 2011 Illinois conviction for the manufacture
or delivery of cannabis and a 2009 Illinois conviction for the manufacture or delivery of
cocaine. (Morales also had a “crime of violence” conviction that could have increased
his base offense level under this Guideline.) Morales did not object to this offense-level
recommendation. Second, the PSR recommended, and he objected to, a four-level
increase for not only possessing the firearm as a felon but also discharging the weapon
during the offense conduct, id. § 2K2.1(b)(6)(B), and a two-level increase for obstructing
justice by fleeing from police, id. § 3C1.2. With a total offense level of 30 and a criminal
history category of V, the PSR calculated a guidelines range of 151 to 188 months in
prison, see U.S.S.G. Ch. 5, Pt. A, and decreased it to the statutory maximum of
120 months, see 18 U.S.C. § 924(a)(2).
The district court accepted the PSR’s recommendations in part. It overruled
Morales’s objection to the firearm adjustment, finding by a preponderance of the
evidence that Morales had discharged the gun that he was convicted of possessing. But
it sustained his objection to the obstruction-of-justice adjustment. The new guidelines
range, with an offense level of 28 and a criminal history category of V, dropped to 130
to 162 months and then to the statutory maximum of 120 months. After weighing the
factors listed under 18 U.S.C. § 3553(a), the court imposed a prison term of 94 months.
On appeal Morales contends that his two Illinois convictions are not “controlled
substance offenses” under the Guidelines. He reasons that his offenses involved state
statutes that are categorically broader than those in the Controlled Substances Act, 21
U.S.C. § 802. If neither of his drug offenses are “controlled substance offenses” under
that Act, Morales continues, his offense levels under the Guidelines should also
decrease, yielding a lower guidelines range of 92 to 115 months. But, as he concedes,
circuit law has rejected his argument: We have held that the Guidelines do not mirror
the Controlled Substances Act’s definition of “controlled substances”; instead, the
Guidelines define that term “broadly” to “include state-law offenses” involving
controlled substances. United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020).

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No. 22-2042 Page 3
Morales urges us to reconsider Ruth, but he has forfeited the argument. He
highlights the circuit split over how to define a “controlled substance” under the
Guidelines and maintains that Ruth conflicts with Supreme Court case law and the
Guidelines’ goal of sentence uniformity. The government responds that, by failing to
object to this aspect of his base offense level while advancing other objections at
sentencing, Morales waived this argument and thereby extinguished all appellate
review. See United States v. Hammond, 996 F.3d 374, 399 (7th Cir. 2021). We will accept
for the sake of argument that Morales did not have a strategic reason for withholding
this argument at sentencing and that he has merely forfeited the argument. See id. at
399–400.
As a forfeited argument, we review whether the district court plainly erred by
accepting that Morales’s offense level was based on the two “controlled substance”
convictions. See id. at 400. A plain error must be a “clear or obvious” defect. Id. But
because Ruth forecloses Morales’s argument, the district court did not plainly err in
applying it, which even today remains binding precedent in this circuit. See, e.g.,
United States v. Wallace, 991 F.3d 810, 816 (7th Cir. 2021), cert. denied, 142 S. Ct. 362 (2021);
United States v. Jones, 56 F.4th 455, 503 (7th Cir. 2022).
AFFIRMED

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