Illinois Prior Look-Alike Drug Conviction No Good for Career Offender

Elion v. United States, No. 20-1725, 2023 U.S. App. LEXIS 20286 (7th Cir. Aug. 7, 2023)

After Otis Elion pleaded guilty to distributing methamphetamine, a federal district court sentenced him as a career offender under U.S. Sentencing Guideline § 4B1.1. Elion’s attorney did not challenge that designation, and the court imposed a 167-month prison term. Through a motion under 28 U.S.C. § 2255, Elion argued his attorney’s failure to object amounts to ineffective assistance. The district court denied relief, concluding that Elion was properly sentenced as a career offender and, therefore, did not suffer prejudice from counsel’s performance. After the application of the categorical approach, the court of appeals reversed the denial of Elion’s § 2255 motion and remanded for an evaluation of counsel’s performance.

Elion had two prior convictions for unlawful delivery of a look-alike substance in violation of 720 Ill. Comp. Stat. 570/407(b). The court found the state statute was indivisible and overbroad. Here’s the conclusion by the court: “Elion also argues that the elements of the Illinois look-alike statute punish conduct more broadly than does the Guidelines controlled substance offense. Recall that the look-alike statute makes it ‘unlawful for any person knowingly to manufacture, distribute, advertise, or possess with intent to manufacture or distribute a lookalike substance.’ 720 ILL. COMP. STAT. 507/404(b). By comparison, a controlled substance offense [under the Guidelines] is ‘an offense … that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance)’ or possession with intent to do the same. U.S.S.G. § 4B1.2(b). Juxtaposing those provisions reveals an outlier—Illinois punishes advertisement while the controlled substance offense does not.

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