USA v. Derrick Neville, Jr., No. 22-1391 (7th Cir. 2023)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued February 9, 2023 Decided August 2, 2023 Before FRANK H. EASTERBROOK, Circuit Judge DAVID F. HAMILTON, Circuit Judge JOHN Z. LEE, Circuit Judge No. 22-1391 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DERRICK T. NEVILLE, JR., Defendant-Appellant. Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:17-cr-50032 Frederick J. Kapala, Judge. ORDER Derrick Neville pleaded guilty to possession with intent to distribute cocaine base and heroin and possession of a firearm as a felon. See 21 U.S.C. § 841(a)(1); 18 U.S.C. §§ 922(g)(1), 924(e). Overruling Neville’s objection at resentencing (his prior sentence was vacated for reasons immaterial to this appeal), the district court held that Neville’s 2014 Illinois conviction for possession with intent to deliver one to fifteen grams of cocaine, see 720 Ill. Comp. Stat. 570/401(c)(2), qualified as a “controlled substance offense” under Sections 4B1.1(a) and 4B1.2(b) of the United States Sentencing Guidelines. This, along with his other prior offenses, triggered the Guidelines’ careeroffender enhancement, which increased Neville’s guidelines range of 100–125 months No. 22-1391 Page 2 to 151–188 months. After both parties presented arguments regarding the sentencing factors under 18 U.S.C. § 3553(a), the district court imposed a sentence of 130 months. On appeal, Neville argues that the district court should not have applied the career-offender enhancement. First, he points out that Illinois’s statutory definition of cocaine is broader than the federal definition of cocaine under the Controlled Substances Act, 21 U.S.C. § 802(6). Then, invoking the categorical approach announced in Taylor v. United States, 495 U.S. 575 (1990), Neville argues that his 2014 conviction cannot count as a “controlled substance offense” under U.S.S.G. § 4B1.1(a) and § 4B1.2(b). We rejected this precise argument in United States v. Ruth, 966 F.3d 643, 644 (7th Cir. 2020). We reasoned there that the term “controlled substance offense” is defined broadly by the Sentencing Guidelines and “include[s] state-law offenses related to controlled or counterfeit substances punishable by imprisonment for a term exceeding one year.” Id. at 652 (quoting United States v. Hudson, 618 F.3d 700, 703 (7th Cir. 2010)). We further concluded that a controlled substance is “any of a category of behavioraltering or addictive drugs, as heroin or cocaine, whose possession and use are restricted by law.” Id. at 654 (quoting Controlled Substance, The Random House Dictionary of the English Language (2d ed. 1987)). We have repeatedly reaffirmed Ruth, denying numerous requests to overrule it. See, e.g., United States v. Jones, 56 F.4th 455, 503 (7th Cir. 2022), cert. denied sub nom. Owens v. United States, 143 S. Ct. 1766 (2023); United States v. Ramirez, 52 F.4th 705, 707 (7th Cir. 2022), cert. denied sub nom. Ramirez v. United States, 143 S. Ct. 2480 (2023); United States v. Wallace, 991 F.3d 810, 816–17 (7th Cir.), cert. denied sub nom. Wallace v. United States, 142 S. Ct. 362 (2021). What is more, since Ruth, “our position has gained, not weakened, as the dialogue among the circuits has continued.” Ramirez, 52 F.4th at 715. And the Supreme Court has made it clear that the issue is not ready to be heard, notwithstanding tension between the circuits. See Sisk v. United States, 142 S. Ct. 785, 785 (2022) (denying certiorari); Wallace, 142 S. Ct. at 362 (same). Despite this, Neville remains adamant that Ruth should be reexamined. He argues that the parties in Ruth never fully briefed or argued the specific issues of the text and history of the career-offender enhancement. This may be, but the issues were nonetheless fully considered in Ruth, as well as in Wallace. See Wallace, 991 F.3d at 816 (“The Sentencing Commission knew how to cross-reference federal statutory definitions in the guidelines. But § 4B1.2(b) ‘does not incorporate, cross-reference, or in any way refer to the Controlled Substances Act.’”) (quoting Ruth, 966 F.3d at 651). No. 22-1391 Page 3 Neville’s arguments are no different than those we rejected in Ruth, Wallace, and other cases. We again decline to revisit Ruth, and the judgment of the district court is affirmed.
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