United States of America v. Curtis Harris

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 24, 2025*
Decided February 24, 2025
Before
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-1173
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CURTIS HARRIS,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:19-CR-00804(1)
Sara L. Ellis,
Judge.
O R D E R
Curtis Harris pleaded guilty to distributing fentanyl in violation of 21 U.S.C.
§ 841(a)(1). In the presentence investigation report, the probation officer determined
that Harris’s prior Illinois convictions for trafficking phencyclidine (PCP), see 720 ILCS
* We granted appellant’s unopposed motion to waive oral argument F ED. R. A PP .
P. 34(f). We have agreed to decide the appeal on the briefs and record because they
adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1173 Page 2
570/401(e), were for a “controlled substance offense” under the career offender
provision of the Sentencing Guidelines and increased his offense level and criminal
history category. See U.S.S.G. §§ 4B1.1, 4B1.2(b). Harris objected that the convictions
were for simple possession, which do not qualify as controlled substance offenses. After
the government presented evidence that the convictions were for distribution, the
district court applied the career offender guideline—elevating the sentencing range
from 30–37 months to 151–188 months—and sentenced Harris to 120 months’
imprisonment.
On appeal Harris argues that, applying the categorical approach, Illinois’s
PCP-trafficking law is broader than the generic counterpart, which lacks any mention of
salts or isomers. Compare 720 ILCS 570/206(e) with 21 U.S.C. § 812, Schedule III(b)(7).
Therefore, he contends, the Illinois law should not count as a controlled substance
offense under the Guidelines. Harris recognizes that his argument is foreclosed by our
decisions in United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) and United States v.
Wallace, 991 F.3d 810 (7th Cir. 2021). He therefore seeks only to preserve his argument.
As an initial matter, the parties dispute whether Harris forfeited his argument by
failing to raise this specific theory when objecting to the career offender enhancement.
But Ruth dooms Harris’s argument whether we apply plain-error or de novo review. To
the extent the government contends that Harris waived the argument, precluding
appellate review altogether, we disagree. True, asserting some objections and not others
can demonstrate the intentional, strategic relinquishment of an argument. United States
v. Hathaway, 882 F.3d 638, 641 (7th Cir. 2018). But in this case, after Harris’s factual
defense proved mistaken, Harris’s counsel stated that Harris did not wish to “waive
anything” with respect to the application of the career offender guideline. And we can
see no strategic reason why Harris would withhold an argument that, if accepted,
would dramatically reduce his sentencing range. See United States v. Hammond, 996 F.3d
374, 399–400 (7th Cir. 2021). In any case, the district court could not have disregarded
Ruth and accepted the argument. We decline to deem the argument waived.
On the merits, we can be brief. In Ruth we rejected the argument that the term
“controlled substance” as defined in U.S.S.G. § 4B1.2(b) refers only to a substance
banned by the federal Controlled Substances Act, 21 U.S.C. § 802(6). Ruth, 966 F.3d at
651, 654. The defendant there argued that because the Illinois statute prohibits
distribution of “positional isomers” of cocaine and the Controlled Substances Act does
not, a conviction under the Illinois statute does not count as a controlled substance
offense under U.S.S.G. § 4B1.2(b). We disagreed, explaining that the term “controlled

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No. 24-1173 Page 3
substance” in the Guidelines refers to the ordinary meaning of that term—not the
definitions in the federal Controlled Substances Act—and therefore includes cocaine as
defined by the Illinois statute. Ruth, 966 F.3d at 654. We were urged to overrule this
decision in Wallace, among other cases, and we declined to do so. 991 F.3d at 817.
We decline once again to revisit Ruth. Harris’s prior convictions were under
720 ILCS 570/401(e), which criminalizes dealing non-methamphetamine schedule I and
II controlled substances, rather than the cocaine-specific subsection at issue in Ruth and
Wallace. But, as Harris recognizes, his argument is premised on the fact that 720 ILCS
570/206(e) defines PCP and “its salts, isomers, and salts of isomers” as a schedule II
controlled substance. Ruth compels the conclusion that PCP is a controlled substance for
purposes of the career offender guideline regardless of this language in the Illinois
statutory definition. Harris has preserved his argument for further review, but we
AFFIRM the judgment.

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