Shawn Russell Sorensen v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 23-1593
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Shawn Russell Sorensen
Petitioner - Appellant
v.
United States of America
Respondent - Appellee
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Appeal from United States District Court
for the District of South Dakota - Southern
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Submitted: October 24, 2024
Filed: June 2, 2025
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Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
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KELLY, Circuit Judge.
Shawn Russell Sorensen was convicted of drug and firearm offenses and
sentenced to mandatory life imprisonment. He later filed a motion pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his sentence. The district court1
1 The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota.

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dismissed the motion. We granted a certificate of appealability on one issue: whether
counsel provided ineffective assistance by failing to argue that Sorensen’s prior state
convictions did not qualify as “felony drug offense[s]” for purposes of 21 U.S.C.
§ 841’s sentencing enhancement scheme. We affirm.
I.
In 2016, a jury convicted Sorensen of conspiracy to distribute 500 grams or
more of a mixture or substance containing methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 846. Before trial, the government filed notice of its intent
to seek increased punishment based on Sorensen’s prior state convictions for two
“felony drug offense[s]”: possession of a controlled substance in violation of South
Dakota Codified Laws § 22-42-5, and possession of dangerous drugs
(methamphetamine) in violation of Arizona Revised Statutes § 13-3407 (2008). See
21 U.S.C. §§ 802(44), 841(b), 851(a). Relying on these two prior convictions, the
district court imposed a mandatory sentence of life imprisonment. See 21 U.S.C.
§ 841(b)(1)(A)(viii) (2010) (mandating that a person who commits a violation of
§ 841(a) “after two or more prior convictions for a felony drug offense have become
final . . . shall be sentenced to a mandatory term of life imprisonment”).2
Sorensen filed a timely motion under § 2255. As relevant here, he alleged that
counsel was ineffective for failing to argue that one or both of his prior convictions
did not qualify as a felony drug offense for purposes of enhancing his sentence to
mandatory life imprisonment. The district court denied relief.
2 The statutory language of § 841 has since changed to impose a 25-year
statutory minimum sentence for defendants convicted of violating § 841(a) after
having sustained two “serious drug felony” convictions. See 21 U.S.C.
§ 841(b)(1)(A)(viii) (2022).

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II.
We review a district court’s denial of § 2255 relief de novo. Ragland v. United
States, 756 F.3d 597, 598–99 (8th Cir. 2014). Section 2255 grants courts authority
to “vacate, set aside or correct” a federal sentence where “the sentence was imposed
in violation of the Constitution.” 28 U.S.C. § 2255(a). Courts have long recognized
that the Sixth Amendment guarantees criminal defendants the right to effective
assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)
(citing authority dating to 1932). When raising claims of ineffective assistance of
counsel, a movant “must prove (1) ‘that counsel’s performance was deficient’ and
(2) ‘that the deficient performance prejudiced the defense.’” Id. (quoting Strickland
v. Washington, 466 U.S. 668, 687 (1984)).
The district court determined that Sorensen had not established that his prior
counsel’s performance was deficient. Sorensen asserted that his counsel’s assistance
fell below the level of competent representation because his lawyers failed to argue
that the categorical approach precluded his two prior convictions from qualifying as
felony drug offenses. But the district court found that, at the time of sentencing, any
such argument was novel. And “failure to raise arguments that require the resolution
of unsettled legal questions generally does not render a lawyer’s services ‘outside
the wide range of professionally competent assistance’ sufficient to satisfy the Sixth
Amendment.” Basham v. United States, 811 F.3d 1026, 1029 (8th Cir. 2016)
(quoting New v. United States, 652 F.3d 949, 952 (8th Cir. 2011)).
On appeal, Sorensen disputes the district court’s conclusion that the argument
was novel. According to Sorensen, at the time of his prosecution and sentencing,
Eighth Circuit and United States Supreme Court authority supported the argument
that his two prior state convictions were “overbroad” and, therefore, not a categorical
match to the definition of a felony drug offense. See 21 U.S.C. § 802(44) (2016). It
is true that courts were regularly applying the categorical approach when Sorensen
was sentenced, but its use was evolving in scope and application. See United States
v. Brown, 598 F.3d 1013, 1017–18 (8th Cir. 2010) (using version of categorical

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approach in assessing whether an Iowa statute qualified as a felony drug offense
under 21 U.S.C. §§ 841(b)(1)(A) and 802(44) of the Controlled Substances Act);
Mellouli v. Lynch, 575 U.S. 798, 801, 806 (2015) (applying the categorical approach
“to assess whether a state drug conviction triggers removal under the [Immigration
and Nationality Act]” and determining that because the state statute was overbroad,
it could not serve as a predicate offense for purposes of the federal deportation
provision); Mathis v. United States, 579 U.S. 500, 503–07 (2016) (clarifying and
applying the modified categorical approach to determine whether an Iowa burglary
conviction served as a predicate felony offense for purposes of enhancing a sentence
under the Armed Career Criminal Act). As the government points out, there was no
Eighth Circuit precedent recognizing the particular argument Sorensen makes here:
that his prior convictions do not qualify as felony drug offenses for purposes of
§ 841 because (1) the state statutes on which they are predicated are overbroad as a
result of the corresponding state drug schedules, which include substances that are
not included in the federal drug schedules, and (2) the statutes are indivisible,
meaning the modified categorical approach does not apply.3 See Basham, 811 F.3d
at 1029. When an area of the law is evolving, determining what constitutes a novel
argument can sometimes be challenging.
But we need not decide what constitutes a novel argument here. Even
assuming that counsel’s performance was deficient, Sorensen has failed to show
prejudice; there is no reasonable probability of a different outcome at sentencing,
because under § 802(44) both of his prior convictions qualified as felony drug
3 Courts apply the modified categorical approach only when statutes are
divisible—that is when statutes “list elements in the alternative, and thereby define
multiple crimes.” Mathis, 579 U.S. at 505. When applying the modified categorical
approach, the sentencing court examines “a limited class of documents (for example,
the indictment, jury instructions, or plea agreement and colloquy) to determine what
crime, with what elements, a defendant was convicted of.” Id. at 505–06. The court
will then compare the defendant’s prior crime of conviction with the generic offense
to determine whether the prior crime serves as a predicate for a sentencing
enhancement. Id. at 506.

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offenses. See Strickland, 466 U.S. at 694 (explaining that, to establish prejudice, a
“defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”).
To determine whether Sorensen’s prior state convictions qualified as felony
drug offenses4 for purposes of imposing an enhanced sentence, we apply the
categorical approach, “look[ing] to the statutory definition of the prior offense, not
to the facts underlying a defendant’s prior convictions.” See United States v. Boleyn,
929 F.3d 932, 936 (8th Cir. 2019). The parties do not dispute that both the Arizona
and South Dakota statutes are overbroad, meaning both statutes criminalize the
possession of substances that the federal statute does not. See United States v. Oliver,
987 F.3d 794, 806 (8th Cir. 2021) (“If the state offense sweeps more broadly, or
punishes more conduct than the federal definition, the conviction does not qualify as
a predicate offense.” (quoting United States v. Vanoy, 957 F.3d 865, 867 (8th Cir.
2020))). Thus, the issue here turns on whether the statutes are divisible or indivisible.
Id. at 807 . Where the state statutes are overbroad and indivisible, the analysis ends,
and a conviction under those statutes cannot qualify as a categorical match to the
federal definition. See United States v. Kinney, 888 F.3d 360, 365 (8th Cir. 2018).
If, on the other hand, the state statutes are divisible, we apply the modified
categorical approach to determine which of the divisible elements provided the basis
for the conviction. Oliver, 987 F.3d at 807.
We start with Sorensen’s Arizona state conviction for possession of dangerous
drugs. Since Sorensen’s conviction and sentencing, the Arizona Supreme Court has
addressed whether, in a prosecution under the state’s statute prohibiting the
possession of a narcotic drug, a jury must unanimously identify the specific drug in
a prosecution. Romero-Millan v. Barr, 507 P.3d 999, 1003 (Ariz. 2022) (interpreting
4 At the time of Sorensen’s sentence, a “felony drug offense” was defined as
“an offense . . . punishable by imprisonment for more than one year under any law
of the United States or of a State . . . that prohibits or restricts conduct relating to
narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”
21 U.S.C. § 802(44) (2016).

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Ariz. Rev. Stat. § 13-3408). The court determined that the specific “identity of an
alleged narcotic drug is an element of § 13-3408” and that “jury unanimity regarding
the identity of a specific drug is required for a conviction under § 13-3408.” Id. at
1003–04. Section 13-3408 is, therefore, “divisible as to drug type.” Romero-Millan
v. Garland, 46 F.4th 1032, 1043 (9th Cir. 2022).
Sorensen was convicted under Arizona § 13-3407, not § 13-3408. But the
relevant portions of the two sections are nearly identical in wording and structure.
The only meaningful difference is that the latter applies to “narcotics,” while the
former applies to “dangerous drugs,” including methamphetamine. Compare Ariz.
Rev. Stat. § 13-3407(A), with id. § 13-3408(A). Like § 13-3408, § 13-3407 also has
different conviction and sentencing schemes based on the underlying “dangerous
drug.” Compare id. § 13-3408(A), with id. § 13-3407(A)–(B). And, as with § 13-
3408, defendants in the past have been convicted of multiple separate crimes under
§ 13-3407. See, e.g., State v. Tavasci, No. 1 CA-CR 07-0643, 2008 WL 2315690, at
*2 (Ariz. Ct. App. June 3, 2008) (upholding convictions on two counts of possessing
two different types of dangerous drugs for sale under § 13-3407(A)(2)); see also
United States v. Ortega, No. 22-50895, 2023 WL 6458642, at *4 (5th Cir. Oct. 4,
2023) (per curiam) (explaining that Ҥ 13-3407 provides for harsher sentences for
certain drugs” and concluding that § 13-3407(A)(2) is divisible by drug type).
Neither the parties nor the district court had the benefit of the Arizona
Supreme Court’s decision in Romero-Millan at the time of Sorensen’s sentencing.
But as the Arizona Supreme Court explained, Arizona had “long-standing precedent
of allowing multiple convictions for contemporaneous violations of § 13-3408
involving multiple narcotic drugs.” Romero-Millan, 507 P.3d at 1003. That “there
may be multiple convictions under § 13-3408 for a single event that involves
different narcotic drugs” was a strong indication that the statute was comprised of
multiple distinct crimes, depending on the type of drug. Id. at 1003–04. Given the
analysis of the state’s highest court, and the nearly identical structure of §§ 13-3407
and 13-3408, we conclude that the Arizona statute underlying Sorensen’s conviction,
while overbroad, is divisible. Applying the modified categorical approach,

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Sorensen’s relevant Arizona court documents5 show that he was convicted of
possession of methamphetamine, a federally controlled substance and predicate
felony drug offense under 21 U.S.C. §§ 841(b)(1)(A) and 802(44). See also 21
U.S.C. § 812(c), Schedules II(c), III(a)(3). Because Sorensen’s Arizona conviction
qualifies as a felony drug offense, he is unable to show that counsel’s failure to object
was prejudicial.
We turn next to Sorensen’s conviction for possession of a controlled substance
under South Dakota Codified Laws § 22-42-5. Sorensen argues that because
“controlled drug or substance” is defined in a separate statute, § 22-42-1, the type of
drug constitutes alternative means of violating the statute, not alternative elements.
According to Sorensen, the statute is therefore indivisible. “We have recognized that
where ‘a phrase is defined in a separate statutory section, that provides textual
support that the definition is a list of means by which [an] element may be
committed.’” Rendon v. Barr, 952 F.3d 963, 969 (8th Cir. 2020) (quoting United
States v. McFee, 842 F.3d 572, 575 (8th Cir. 2016)). We have clarified, however,
that a separate listing of drug type is not dispositive. Id. (“[T]here is no universal
rule that listings in a separate section automatically are means rather than elements.”
(quoting Martinez v. Sessions, 893 F.3d 1067, 1072 (8th Cir. 2018))).
As Sorensen concedes, the South Dakota Supreme Court has long recognized
a defendant can be charged with multiple counts under § 22-42-5 when they possess
different controlled substances at one time. And, though charged under the same
statute, those counts do not function as a single act of possession. See State v.
Burkman, 281 N.W.2d 436, 439, 441 (S.D. 1979) (affirming conviction where
defendant charged with four separate counts under § 22-42-5 based on single
possession transaction of four different controlled substances and holding that
5 The parties do not dispute what documents the court may review if the
modified categorical approach applies. See Shepard v. United States, 544 U.S. 13,
16 (2005).

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“[e]ach count is treated as if it were separate”).6 Based on guidance from the South
Dakota Supreme Court, in effect today as well as at the time of Sorensen’s
sentencing, we conclude that § 22-42-5 is divisible. Applying the modified
categorical approach, the relevant documents7 show that Sorensen was convicted in
South Dakota for possession of methamphetamine. As a result, his conviction
qualified as a felony drug offense under 18 U.S.C. §§ 841(b)(1)(A) and 802(44), and
he was not prejudiced by counsel’s failure to argue otherwise.
III.
The judgment of the district court is affirmed.
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6 State v. Schrempp, 887 N.W.2d 744 (S.D. 2016), on which Sorensen relies,
is not to the contrary. There, the South Dakota Supreme Court considered whether
changing the name of the drug charged in the indictment was an impermissible
amendment that amounted to reversible error. Schrempp, 887 N.W.2d at 746–47.
The court concluded it was not, as the drug names used in the original and amended
indictment were used interchangeably during trial to identify a single controlled
substance. Id. at 749. Whether the drug was described by its technical name—as
originally charged—or by its chemical compound—as amended—the drug was the
same. Id. Moreover, Schrempp provides further support for the conclusion that
§ 22-42-5 is divisible, because there, like in Burkman, the defendant was charged
with multiple counts under § 22-42-5 for different drugs possessed at the same time.
Id. at 746.
7 As with the Arizona conviction, the parties do not dispute what documents
the court may review if the modified categorical approach applies.

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