USA v. Brian Redden

Filing

Filed opinion of the court by Judge Easterbrook. Counsel s motion to withdraw is GRANTED, and the appeal is DISMISSED as frivolous. Frank H. Easterbrook, Circuit Judge; Michael S. Kanne, Circuit Judge and David F. Hamilton, Circuit Judge. [6882425-1] [6882425] [17-1405]

Case: 17-1405

Document: 19

Filed: 11/08/2017

Pages: 3

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1405
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

BRIAN L. REDDEN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 16-CR-30072-NJR-01 — Nancy J. Rosenstengel, Judge.

____________________

SUBMITTED OCTOBER 23, 2017 — DECIDED NOVEMBER 8, 2017
____________________
Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. After pleading guilty to possessing cocaine with intent to distribute, 21 U.S.C. §841(a)(1),
Brian Redden was sentenced to 151 months’ imprisonment
and 3 years’ supervised release. He appealed, but his appointed lawyer has moved to withdraw under Anders v. California, 386 U.S. 738 (1967), representing that the appeal is
frivolous.

Case: 17-1405

2

Document: 19

Filed: 11/08/2017

Pages: 3

No. 17-1405

We grant that motion, largely for reasons detailed in a
nonprecedential order released together with this opinion.
One issue raised in Redden’s response to the Anders brief
may have significance for other appeals and justifies discussion in a published opinion.
The district court treated Redden as a career offender
under U.S.S.G. §4B1.1 because of his prior convictions. Redden contends that one of these—delivery of a controlled substance in violation of 720 ILCS 570/401—should not have
been classified as a “controlled substance offense” for the
purpose of §4B1.1(a)(3) because the elements of that Illinois
crime differ from the definition in §4B1.2(b):
The term “controlled substance offense” means an offense 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.

Redden observes that United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016), holds that the Texas offense of delivering a
controlled substance includes conduct that falls outside this
definition and so is not a “controlled substance offense”. He
contends that we should treat Illinois law the same way.
The key phrase in §4B1.2(b) is “manufacture, import, export, distribution, or dispensing”. As with most other recidivist enhancements, these words are applied to the elements
of the crime of conviction, not to what the accused did in
fact. See, e.g., Mathis v. United States, 136 S. Ct. 2243 (2016).
Hinkle found that the elements of the Texas crime do not
match the specifications in §4B1.2(b) because it is unlawful
in Texas to offer a controlled substance for sale, as well as to

Case: 17-1405

No. 17-1405

Document: 19

Filed: 11/08/2017

Pages: 3

3

manufacture, import, export, distribute, or dispense it. See
also United States v. Madkins, 866 F.3d 1136, 1145 (10th Cir.
2017) (same conclusion about Kansas law).
Illinois, by contrast, does not make it a crime to offer a
controlled substance. The definition that underlies the offense established by 720 ILCS 570/401 tells us that “deliver”
and “delivery” mean an “actual, constructive or attempted
transfer”. 720 ILCS 570/102(h). Any conduct meeting the
state’s definition of “delivery” comes within §4B1.2(b) because “transfer” is just another word for distribute or dispense. Because Illinois law lacks the feature that made possible a substantive conviction in Texas or Kansas without
meeting the requirements of §4B1.2(b), it would be frivolous
for counsel to argue that Redden is not a career offender.
Counsel’s motion to withdraw is granted, and the appeal
is dismissed as frivolous.