United States v. Johnson, No. 21-1277 (7th Cir. 2022)
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FBI agents and Chicago police executed a search warrant at Johnson’s apartment, which authorized them to search for: Firearms, short-barreled, ammunition, paraphernalia for maintaining firearms, any photographs of individuals with firearms, any records 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 did not find firearms or ammunition but, on the back porch attached to Johnson’s apartment, they found over 100 grams of a substance containing heroin and furanylfentanyl, concealed in a cavity at the top of a ceiling beam. Johnson was charged under 21 U.S.C. 841(a)(1), which carries a mandatory minimum of 10 years’ imprisonment.
Johnson’s motion to suppress was denied The district court found the porch to be curtilage. The Seventh Circuit affirmed his conviction and 132-month sentence. The officers’ seizure of the drugs was lawful under the plain view doctrine. The court rejected an argument that furanylfentanyl is not an “analog of [fentanyl]” under the statute; the district court did not plainly err in applying the 10-year enhanced penalty. Johnson qualified as a career offender based on two Illinois convictions for the manufacture and/or delivery of a controlled substance.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 21-1277 UNITED STATES OF AMERICA, 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. ____________________ ARGUED JANUARY 13, 2022 — DECIDED AUGUST 26, 2022 ____________________ Before HAMILTON, BRENNAN, and JACKSON-AKIWUMI, Circuit Judges. JACKSON-AKIWUMI, Circuit Judge. During a search of Je rey Johnson’s residence for rearms, ammunition, and related documents, o cers seized over 100 grams of a substance containing heroin and furanylfentanyl. Following the denial of his suppression motion, Johnson went to trial and a jury convicted him of intent to distribute a controlled substance containing an analogue of fentanyl, which carries a 10-year 2 No. 21-1277 mandatory prison sentence. The district court sentenced Johnson to 132 months’ imprisonment. Johnson appeals, raising several challenges to his conviction and sentence. We nd no error and a rm. I On April 5, 2017, FBI agents and the Chicago Police Department executed a search warrant at Johnson’s apartment. The search warrant authorized law enforcement to search for: Firearms, short barreled, ammunition, paraphernalia for maintaining rearms, any photographs of individuals with rearms, any records of rearms transactions, which have been used in the commission of, or which constitute evidence of the o ense of: [unlawful use of a weapon by a felon]. The o cers searched Johnson’s apartment and did not nd any rearms 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, stu ed inside a sock, concealed in a cavity at the top of a ceiling beam. Johnson was arrested, and a grand jury returned a onecount 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 detectable amount of “any analogue of [fentanyl]” carries a mandatory minimum of 10 years’ imprisonment. 21 U.S.C. § 841(b)(1)(A)(vi). No. 21-1277 3 Before trial, Johnson led 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 district court submitted a special verdict form to the jury addressing the enhanced penalty for o enses involving 100 grams or more of “any analogue of [fentanyl].” The court instructed the jury that “any analogue of [fentanyl]” is de ned as “any substance that has a chemical structure that is substantially similar to the chemical structure of fentanyl.” Johnson 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 fentanyl. Johnson faced a 10-year mandatory minimum prison sentence. 21 U.S.C. § 841(b)(1)(A). A. Motion for Judgment of Acquittal/Motion for New Trial Johnson led several post-trial motions. In one post-trial motion, which the district court construed as a motion for new trial, Johnson argued for the rst time that furanylfentanyl is not an “analogue of [fentanyl]” within the meaning of § 841(b)(1)(A)(vi), and therefore he was not subject to the 10year 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 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 nding violated the Ex Post Facto Clause. The district court rejected Johnson’s argument. The district court concluded that the statutory de nition of “controlled substance analogue” in § 802(32) did not apply to the word “analogue” in § 841(a)(1)(A)(vi) which, by itself, is unde ned. Applying the ordinary and plain meaning of the term, the district court explained that the de nition of “analogue” means “something similar or comparable to something else either in general or in some speci c detail” or “a chemical compound that is structurally similar to another but di ers 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 de nitional “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 led an amended motion for a new trial making a similar argument regarding the de nition 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 counsel and led an amended motion to suppress. In the motion, Johnson claimed for the rst time that the o cers exceeded the scope of the search warrant as to the items seized. Particularly, Johnson argued that the warrant authorized o cers to No. 21-1277 5 search for rearms and rearm-related items, but the o cers searched for anything illegal, including evidence of drugs and stolen vehicles. Johnson also argued that the o cers unreasonably searched inside the sock containing heroin and furanylfentanyl because it was too small to have rearms. 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 omission 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 ine ective 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 o ender based on two previous state felony convictions for the manufacture and/or delivery of controlled substances. 1 Johnson objected to his status as a career offender. He insisted that he was convicted under an Illinois drug statute that covered a broader array of controlled substances than federal law, and therefore, this conviction could not serve as a predicate o ense under the career-o ender 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-o ender guideline in place, Johnson’s 1 The career offender predicates were Johnson’s 2012 conviction for manufacture or delivery of heroin and his 2006 conviction for manufacture or delivery of a controlled substance. 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 10year mandatory minimum enhanced penalty, and his status as a career o ender. We address each argument in turn. II A. Good Cause for Untimely Motion to Suppress Johnson rst argues that the district court erred in failing to grant his late- led 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 led 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 ine ective assistance 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 le a belated claim, is insu cient 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 determination that Johnson’s motion was untimely and that he otherwise failed to establish good cause. Johnson’s motion was led one year after his conviction. Johnson acknowledges that his motion was untimely but argues ine ective assistance because there was no strategic reason for his prior counsel’s failure to make the argument regarding the scope of the items No. 21-1277 7 seized. Although ine ective assistance of counsel may be suf cient to establish good cause in some cases, in this case, it is not. As it currently stands, the record is silent as to prior counsel’s decision not to seek suppression on the ground that the o cers 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 de cient, then he could have potentially shown enough evidence to rebut this presumption. Absent a record of de ciency or any extrinsic evidence, however, Johnson cannot show good cause for his untimely motion. See United States v. Taglia, 922 F.2d 413, 417–18 (7th Cir. 1991) (“When the only record on which a claim of ine ective assistance is based is the trial record, every indulgence will be given to the possibility that a seeming lapse or error by defense counsel was in fact a tactical move, awed only in hindsight.”). Even if Johnson was able to show good cause for his untimely suppression motion, the search of his residence was lawful. The o cers in this case did not, contrary to Johnson’s argument, exceed the scope of the warrant. In executing a search warrant, “o cers 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 o cer may also seize evidence that, although not described in the warrant, is subject to seizure under the plain view 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 o cer has a legal right to be in the place from where he sees the object subject to seizure; (2) the o cer has a lawful right of access to the object itself; and (3) the property’s incriminating nature is “immediately apparent.” United States v. McGill, 8 F.4th 617, 622 (7th Cir. 2021). For an item’s incriminating nature to be “immediately apparent,” an o cer must have “probable cause to believe that the item is contraband or otherwise linked to criminal activity.” Id. Johnson contends that the o cers’ seizure of the drugs went beyond the scope of the warrant, which authorized of cers to seize only rearms and related items. Rather, Johnson maintains, the o cers searched for anything illegal, including evidence of stolen vehicle and drugs. The record does not support Johnson’s contention. There is no dispute that the o cers were legally within Johnson’s residence. The warrant at issue in this case authorized o cers to search Johnson’s residence for “[f]irearms [and] ammunition,” and “paraphernalia for maintaining rearms … photographs [and] any records of rearms transactions” which could constitute evidence of unlawful 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 record, the incriminating nature of the sock was “immediately apparent” because the o cers 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 quotations omitted); see also Texas v. Brown, 460 U.S. 730, 741–742 (1983) (allowing further investigation to con rm the No. 21-1277 9 incriminating character of seized evidence). The o cers’ seizure 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 subjecting him to a 10-year statutory mandatory minimum under § 841(b)(1)(A)(vi), because furanylfentanyl is not an “analogue of [fentanyl]” as used in the statute. As a preliminary matter, the government contends that we need not even address this argument because, by not objecting to a jury instruction de ning an “analogue of [fentanyl],” Johnson waived this statutory construction argument. Although failing to object to a jury instruction may generally 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 below … [w]hen the ‘interests of justice’ so require, we may reach the merits of a waived issue.”). Here, we need not decide 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 argument 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. CRIM. P. 30(d)(“[a] party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate … Failure to 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 intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a). The statute de nes “controlled substance” as “a drug or other substance, or immediate precursor, 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 convicted 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 de nitional statute for the subchapter, § 802, de ne “analogue” or “any analogue of [fentanyl].” Relevant to Johnson’s argument, however, the statute does de ne the term “controlled substance analogue.” According to the statute, a “controlled substance analogue” is: (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; object in accordance with this rule precludes appellate review” except for plain error review). No. 21-1277 11 (ii) which has a stimulant, depressant, or hallucinogenic e ect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic e ect 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 hallucinogenic e ect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic e ect on the central nervous system of a controlled substance in schedule I or II. 21 U.S.C. § 802(32)(A). The statute makes clear that the de nition of “controlled substance analogue” does not include “a controlled substance.” Id. at § (32)(C)(i). Furanylfentanyl is classi ed 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 de nition, 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 “analogue of [fentanyl]” under § 841(b)(1)(A)(vi). The problem for Johnson is that the term “controlled substance analogue” does not appear in § 841(b)(1)(A)(vi) where 12 No. 21-1277 the fentanyl analogue language is, and the term is treated separate and apart from “any analogue of [fentanyl].” Congress speci cally 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 language 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 exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983). Thus, “controlled substance analogue” is not the same as “any analogue of [fentanyl].” Generally, “[s]tatutory de nitions 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 de ned, courts look to the plain and ordinary 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 de nitions and sometimes consider the construction of similar terms in other statutes, 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 de nes “analogue” as “a chemical compound that is structurally similar to another but di ers slightly in composition.” Webster’s New Collegiate Dictionary (11th ed. 2020); see also Webster’s New Collegiate Dictionary (9th ed. 1985) (“a chemical compound structurally similar to another but di ering often by a single element of the same No. 21-1277 13 valence and group of the periodic table as the element it replaces.”). Johnson does not dispute that furanylfentanyl is an “analogue” based on the plain and ordinary de nition of “analogue” and “any analogue of [fentanyl].” Based on the ordinary rules of statutory construction, the district court did not plainly err in de ning “any analogue of [fentanyl]” and applying the 10-year enhanced penalty in Johnson’s case. Although, until today, our circuit had not addressed Johnson’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 speci cally rejected the argument that “any analogue of [fentanyl]” should have the same de nition of “controlled substance analogue.” The court then applied the plain and ordinary meaning of “analogue” to reach a conclusion similar to the one we reach today. We nd the reasoning in McCray persuasive and further support that the district court did not plainly err in applying the 10-year enhanced penalty in Johnson’s case. See also United States v. Ramirez, 783 F.3d 687, 694– 95 (7th Cir. 2015) (“We rarely nd plain error on a matter of rst impression [,]” since “[m]atters of rst impression are unlikely to be … [su ciently] obvious”—that is, “so obvious … that [the] district judge should have intervened without being prompted by an objection from defense counsel”). C. Career O ender Status Johnson’s nal contention is that his prior state drug felony convictions do not fall within the career-o ender guideline’s de nition of “controlled substance o ense” because the Illinois statute for his two prior convictions covers more conduct than federal law. We review de novo a district court’s application of the Sentencing Guidelines, including whether 14 No. 21-1277 a prior o ense is a predicate “controlled substance o ense” under the guidelines. See United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020). A defendant quali es as a career o ender 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 controlled substance o ense.” The guidelines de ne a “controlled substance o ense” as: an o ense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. U.S.S.G. § 4B1.2(b). The guidelines do not de ne “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 o enses do not qualify as predicate o enses, 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 de nition 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-o ender guideline and its definition of “controlled substance o ense” 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 de nition No. 21-1277 15 of “controlled substance” into the guidelines and found the categorical (or modi ed categorical) approach unnecessary in this context. Rather, we explained that the career-o ender guidelines de ned the term “controlled substance o ense” broadly, so, its de nition is most plainly read to “include state-law o enses related to controlled or counterfeit substances 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 o ense in violation of 720 ILCS 570/401(c)(2) was a predicate “controlled substance o ense” under the career-o ender 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 “controlled substance o enses” under the career-o ender guideline. III For the reasons stated above, we AFFIRM the district court’s judgment.
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