United States of America v. Jason L. Anderson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 27, 2019
Decided March 21, 2019
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 18‐1548
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JASON L. ANDERSON,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District
of Indiana, South Bend Division.
No. 3:17CR63‐001
Robert L. Miller, Jr.,
Judge.
O R D E R
Jason Anderson pleaded guilty to possessing a firearm as a felon. See 18 U.S.C.
§ 922(g)(1). The district court determined that Anderson qualified as an Armed Career
Criminal based on three prior cocaine‐dealing convictions, and so it imposed the
minimum sentence of 15 years’ imprisonment. See id. § 924(e)(1). Anderson offers three
reasons why he should not have been designated an armed career criminal. First, two of
his three convictions occurred close in time and therefore (he says) they count as only
one predicate offense under ACCA. Second, he postulates that the statute underlying
those two convictions is broader than ACCA’s definition of a “serious drug offense,”
and so neither one is a predicate offense. Third, he contends that because none of three
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 18‐1548 Page 2
convictions was proven to a jury, none may count as a predicate offense. These
arguments do not persuade us, and so we affirm the district court’s judgment.
I
The procedural history of this case is straightforward. While Anderson, a felon,
was detained on drug charges, police recovered guns at his home. He later pleaded
guilty to illegal firearm possession under 18 U.S.C. § 922(g)(1). The government sought
an enhanced sentence under ACCA based on three previous convictions that, it argued,
were “serious drug offense[s]” that Anderson committed “on occasions different from
one another.” 18 U.S.C. § 924(e)(1). One conviction was for possession with intent to
deliver cocaine under Illinois law. See 720 ILCS 570/401(a)(2)(A) (2004). The second and
third were for dealing more than three grams of cocaine in violation of IND. C ODE
§ 35‐48‐4‐1(b)(1) (1998). This appeal concerns those last two convictions.
Anderson conceded that his convictions were serious drug offenses under
ACCA, but he contended that the two Indiana convictions were just one predicate
offense because they had not necessarily occurred on separate occasions, see 18 U.S.C.
§ 924(e)(1). The operative indictment stated that in 2000 Anderson committed an
Indiana felony “on or about” September 22 by dealing cocaine, and that he committed
another Indiana felony “on or about” September 21, also by dealing cocaine. The sales
were made to the same buyer. Anderson urged that the indictment did not foreclose the
possibility that the sales were made on the same occasion. (Anderson also argued that
the government should have charged his previous convictions in his indictment and
proven them to a jury, but he conceded that Almendarez‐Torres v. United States, 523 U.S.
224 (1998), forecloses this argument at our level.)
The district court ruled that Anderson’s Indiana convictions arose on separate
occasions, and thus each was a predicate offense for purposes of ACCA’s sentencing
enhancement. The Indiana state prosecutors’ decision to charge Anderson with these
two felonies, the court reasoned, would have been “pointless[]” if both counts had
arisen from the same transaction. That is because under Indiana’s merger‐offense
doctrine, the state court could not have sentenced Anderson separately for each count if
both arose from the same events. The district court accordingly sentenced Anderson to
15 years’ imprisonment, the statutory minimum mandated by ACCA. See 18 U.S.C.
§ 924(e)(1).

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No. 18‐1548 Page 3
II
On appeal, Anderson continues to argue that he does not have the necessary
three predicate offenses for ACCA. He presents three reasons in support of this point:
(1) his two Indiana offenses should count as one predicate offense because they did not
occur on separate occasions; (2) Indiana’s cocaine‐dealing statute criminalizes more
conduct than ACCA’s definition of a “serious drug offense” does (a new argument on
appeal); and (3) Almendarez‐Torres was wrongly decided.
We begin with Anderson’s most serious point: whether the conduct underlying
his two Indiana convictions occurred on separate occasions. This is a question of federal
law, and so our review is de novo. United States v. Elliott, 703 F.3d 378, 381 (7th Cir. 2012).
In evaluating this argument, we may consult only the documents approved by Shepard
v. United States, 544 U.S. 13, 26 (2005). These are the “conclusive records made or used in
adjudicating guilt,” such as “charging documents, plea agreements, [and] findings of
fact resulting from a bench trial.” Elliott, 703 F.3d at 382 (internal quotations omitted).
The burden is on the government to prove that the offenses occurred on separate
occasions. Kirkland v. United States, 687 F.3d 878, 889 (7th Cir. 2012). If the Shepard
documents are “equivocal as to whether the offenses occurred on the same occasion, the
ACCA does not apply.” Id.
Whether the crimes were simultaneous or separate depends on whether
Anderson had the chance to “terminate his wrongdoing.” Elliott, 703 F.3d at 383. This,
in turn, depends upon the people involved and the nature, timing, and location of the
crimes. Id. In United States v. Cardenas, 217 F.3d 491 (7th Cir. 2000), for instance, we
found that two drug sales to the same buyer on the same day, just 45 minutes apart, and
on the same block, were separate events and thus were distinct criminal episodes,
because the seller had the chance to refrain from the second sale. Id. at 492. In so
holding, we followed the rule announced in United States v. Hudspeth, 42 F.3d 1015 (7th
Cir. 1994), which held that separate criminal incidents exist if, “within a short period of
time, … the perpetrator had the opportunity to cease and desist from his criminal
actions.” Id. at 1020. Crimes that overlap temporally or circumstances in which there is
no way to change course would be different. Thus, in United States v. Willoughby, 653
F.3d 738 (8th Cir. 2011), the Eighth Circuit held that sales of drugs just seconds apart to
a single buyer were properly viewed as one continuous course of conduct. Id. at 744–45.
Anderson urges us to hold that his case falls within the narrow exception
recognized by Willoughby, but the record is against him. At the plea hearing in the state
court, the following colloquy took place:

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No. 18‐1548 Page 4
THE COURT: Mr. Anderson, the Charging Information indicates that
on September 21st, of the year 2000, you were in possession of cocaine—no,
you sold cocaine; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: That also on the 22nd day of September—22nd day of
September of the year 2000, you sold cocaine and it weighted [sic] more than
3 grams, correct?
THE DEFENDANT: Yes, sir.
Based on that guilty plea, the state court imposed concurrent sentences of 10 years on
Count I (relating to the September 21 sale) and 20 years on Count II (relating to the
September 22 sale). Without this record, we might be more willing to entertain
Anderson’s supposition that his September 21 sale occurred at 11:59 pm, and his
September 22 sale occurred at 12:01 am, just two minutes later. But there is nothing but
wishful thinking to support that scenario. Surely, if the sales had been two minutes
apart, the defendant would have said something to the state judge. Moreover, as the
government has argued here, Indiana law permits only one substantive drug conviction
“when a single transaction is involved between the same principals at the same time
and place.” Duncan v. State, 412 N.E.2d 770, 775 (Ind. 1980). The state judge therefore
could not lawfully have imposed separate sentences on the two counts if they
represented only one transaction. On this record, we therefore follow the lead of the
state sentencing court and conclude that Anderson was convicted and sentenced for
two separate acts, not one, and thus has the necessary three convictions for ACCA.
In the alternative, Anderson argues that his two Indiana convictions are not
“serious drug offenses” under ACCA. Anderson did not raise this argument in the
district court, and so we review it for plain error. We will reverse only if Anderson’s
substantial rights were affected. See FED. R. C RIM. P. 52(b); United States v. Lynn, 851 F.3d
786, 793 (7th Cir. 2017). The Indiana statute provides:
(a) A person who:
(1) knowingly or intentionally
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of …

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No. 18‐1548 Page 5
or
(2) possesses, with intent to:
(A) manufacture;
(B) finance the manufacture of;
(C) deliver; or
(D) finance the delivery of;
cocaine, a narcotic drug, … [c]ommits dealing in cocaine or a narcotic
drug, a Class B felony ….
(b) The offense is a Class A felony if:
(1) the amount of the drug involved weighs three … grams or more ….
IND. C ODE § 35‐48‐4‐1 (1998).
To determine whether a prior conviction counts as a serious drug offense under
ACCA, courts apply a “categorical” approach that focuses exclusively on the elements
of the crime of conviction and not on the facts underlying the conviction. Mathis
v. United States, 136 S. Ct. 2243, 2248 (2016); Taylor v. United States, 495 U.S. 575, 600–02
(1990); United States v. Franklin, 895 F.3d 954, 957–58 (7th Cir. 2018). If the elements of
the crime of conviction are broader than the elements of the generic version of the
offense—that is, if the crime of conviction criminalizes more behavior—then ACCA
does not apply. See Mathis, 136 S. Ct. at 2248.
Some statutes identify multiple crimes under one heading or section. The
Supreme Court has described these statutes as “divisible.” Descamps v. United States,
570 U.S. 254, 261–62 (2013). If a statute is divisible, courts must determine which crime a
defendant committed and whether it supports an ACCA enhancement. Descamps,
570 U.S. at 261–63; Franklin, 895 F.3d at 958. To do this, courts use what has been termed
the “modified categorical approach.” Descamps, 570 U.S. at 261–62. Under this approach,
courts may “look beyond the statutory elements” and review the Shepard documents
(i.e. indictment, plea agreement, and transcripts related to the plea) to see if the
defendant was convicted of a version of the crime that falls within ACCA’s definition of
a serious drug offense. Id. at 261–63; Shephard, 544 U.S. at 26. If so, then the conviction
supports an ACCA enhancement. See Mathis, 136 S. Ct. at 2249.
Anderson’s argument that his conviction under § 35‐48‐4‐1 is not a serious drug
offense has two parts. He argues first that § 35‐48‐4‐1(a), the subsection that sets forth
different ways of dealing a narcotic drug, is indivisible, and second, that an indivisible

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No. 18‐1548 Page 6
§ 35‐48‐4‐1(a) would be overbroad—i.e. it would encompass more conduct than a
generic serious drug offense. He is wrong in both respects.
A statute is divisible if it lists different crimes that the “prosecution must prove
to sustain a conviction”; it is indivisible if it lists alternative “means,” defined as
“various factual ways of committing some component of the offense,” on which juries
need not unanimously agree. Mathis, 136 S. Ct. at 2248–49 (internal quotations omitted).
Whether the statute includes separate elements or separate means is a question of state
law. See Mathis, 136 S. Ct. at 2256; United States v. Edwards, 836 F.3d 831, 833 (7th Cir.
2016). Indiana courts treat § 35‐48‐4‐1(a) as divisible. For example, juries must
unanimously convict the defendant of any one of the listed activities (e.g., possession
with intent to deliver) under the statute. See Upshaw v. State, 934 N.E.2d 178, 183 (Ind.
Ct. App. 2010); McKinley v. State, 45 N.E.3d 25, 27 (Ind. Ct. App. 2015) (quoting jury
instructions). This indicates that the statute contains multiple crimes. Moreover, in
Harper v. State, 963 N.E.2d 653 (Ind. Ct. App. 2012), the court commented that this
statute “provides the elements for the crimes of dealing in … a narcotic drug.”
Id. at 658 n.3. That observation supports a reading of § 35‐48‐4‐1(a) as defining multiple
offenses.
Because Indiana treats § 35‐48‐4‐1(a) as containing multiple crimes, the statute is
divisible. This conclusion is consistent with our decision in Lopez v. Lynch, 810 F.3d 484
(7th Cir. 2016), in which we assumed § 35‐48‐4‐1(a) was divisible but did not conduct an
in‐depth analysis. Id. at 489. Thus, the modified categorical approach applies, and we
look to the Shepard documents to determine which variant of the crime Anderson
committed. Descamps, 570 U.S. at 262–63. The indictment and plea show that Anderson
was charged with cocaine delivery, which fits squarely within the scope of 18 U.S.C.
§ 924(e)’s prohibition on “distributing.” See United States v. Meherg, 714 F.3d 457, 459–60
(7th Cir. 2013). Because the statute is divisible, Anderson’s crime is a serious drug
offense under ACCA.
Anderson next contends that if § 35‐48‐4‐1 is indivisible, then it encompasses
more conduct than ACCA’s “serious drug offense” definition. He relies on Lopez, in
which we ruled that an Indiana statute that criminalizes financing illegal drug trade is
broader than the relevant part of the Immigration and Nationality Act. 810 F.3d at 489.
But ACCA’s definition of a “serious drug offense” is broader than the one found in the
Immigration and Nationalization Act. ACCA applies to crimes “involving
manufacturing, distributing, or possessing with intent to manufacture or distribute, a
controlled substance” 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). The INA refers only

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to “illicit trafficking in a controlled substance.” 8 U.S.C. § 1101(a)(43)(B). Anderson’s
argument fails because the word “involving” in the ACCA definition is broad enough
to cover financing a drug operation. (Indiana courts define financing as “raising or
providing funds” to manufacture or deliver drugs. See Hyche v. State, 934 N.E.2d 1176,
1179 (Ind. Ct. App. 2010) (internal quotations omitted)).
Federal courts interpret the word “involving” as having “expansive
connotations.” United States v. King, 325 F.3d 110, 113 (2d Cir. 2003). In King, the Second
Circuit ruled that the word “must be construed as extending the focus of § 924(e)
beyond” the listed offenses to “encompass[] … offenses that are related to or connected
with such conduct.” Id. Adopting this reasoning, other courts routinely have affirmed
sentencing enhancements under ACCA based on convictions for attempt and
conspiracy to manufacture, distribute or possess with the intent to distribute drugs.
See United States v. Coleman, 700 F.3d 329, 339 (8th Cir. 2012) (attempt); United States
v. Williams, 488 F.3d 1004, 1009 (D.C. Cir. 2007) (attempt); United States v. McKenney,
450 F.3d 39, 43–45 (1st Cir. 2006) (conspiracy); United States v. Winbush, 407 F.3d 703,
707–08 (5th Cir. 2005) (attempt); King, 325 F.3d at 114–15 (attempt). The Third Circuit
also adopted an expansive definition of “involving” in United States v. Gibbs, 656 F.3d
180 (3d Cir. 2011). In that case, the court concluded that a Delaware conviction for
wearing body armor while committing a felony “involve[d]” a serious drug offense
where the underlying felony was manufacturing, distributing or possessing with the
intent to distribute drugs. Id. at 184–85, 188.
We conclude that the term “serious drug offenses” as used in ACCA covers
Indiana convictions for financing drug manufacturing or distribution. Financing the
manufacture or delivery of a controlled substance “involves” prohibited drug dealing in
the same way as do attempt, conspiracy and wearing body armor while dealing drugs.
The only case from Indiana arguably suggesting that § 35‐48‐4‐1 criminalizes more
activity than ACCA is Kibler v. State, 904 N.E.2d 730, *1–4 (Ind. App. Ct. 2009)
(unpublished). There a court upheld a conviction for “financing” the delivery of heroin
under § 35‐48‐4‐1(a) where the defendant had simply purchased the drugs. This case,
however, is an outlier. Cf. Hyche, 934 N.E.2d at 1178–80 (holding that simple purchase is
not “financing”). And at least one of our sister circuits has held that purchasing a
controlled substance on behalf of another person falls within ACCA’s definition of a
serious drug offense. See United States v. White, 837 F.3d 1225, 1229–30 (11th Cir. 2016).
Kibler—an unpublished, nonprecedential decision under state law, see IND. R. A PP. P.
65(D)—does not persuade us that an indivisible § 35‐48‐4‐1 criminalizes more behavior

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than the generic crime. Our conclusion is reinforced by the fact that we are reviewing
only for plain error.
Finally, Anderson argues—solely to preserve the issue for the Supreme Court’s
review—that the Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013), calls for
reconsideration of its ruling in Almendarez‐Torres that previous convictions need not be
included in an indictment. We have rejected similar arguments for the simple reason
that “unless and until the Supreme Court overrules Almendarez‐Torres or confines its
holding solely to the fact of a prior conviction,” we are bound by the Court’s decision.
Elliott, 703 F.3d at 383. Judges thus may make the findings that ACCA requires with
respect to a defendant’s prior convictions.
We AFFIRM the judgment of the district court.

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