                               In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 13-2200

UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                  v.


DAVID LOCKETT,
                                                Defendant-Appellant.

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
            No. 10 CR 983 — Gary S. Feinerman, Judge.


   ARGUED DECEMBER 1, 2014 — DECIDED MARCH 31, 2015


   Before BAUER, KANNE, and HAMILTON, Circuit Judges.
   BAUER, Circuit Judge. Defendant-appellant, David Lockett
(“Lockett”), pleaded guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The district court sentenced Lockett under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), to fifteen years’
imprisonment—the mandatory minimum under the Act. On
appeal, Lockett challenges the application of the ACCA,
arguing that the district court erred in finding that certain drug
2                                                     No. 13-2200

convictions qualified as predicates under the ACCA. In
addition, he argues that even if his drug convictions implicate
the ACCA, none can serve as predicates because of the
restoration of civil rights letter he received. For the reasons that
follow, we reverse the district court’s decision and remand for
resentencing.
                      I. BACKGROUND
    Lockett has an extensive criminal history. In 1979, Lockett
was arrested for armed robbery. In 1981, he pleaded guilty
to the lesser included offense of robbery and was sentenced
to thirty months’ probation. In 1982, he violated his probation
when he pleaded guilty to unlawful use of a weapon. In 1984,
he pleaded guilty to possession of heroin. In 1990, he was
arrested for and pleaded guilty to armed violence and to
several counts of distribution and possession with intent to
distribute heroin. The 1990 drug convictions were Class 2 and
3 felonies, carrying seven and five years’ imprisonment,
respectively. Because of his criminal history, however, Lockett
would have been subject to a maximum prison term of “twice
the maximum term otherwise authorized” for each of the 1990
drug convictions, which would bring his maximum sentences
to fourteen and ten years’ imprisonment. See 720 Ill. Comp.
Stat. 570/408(a). Nevertheless, he was ultimately sentenced to
four years’ imprisonment for the 1990 drug convictions, and
was paroled in February 1992.
   While on parole, he was arrested and charged with
three additional drug offenses; once in 1992 and twice in 1993.
He pleaded guilty to all three charges in 1993 and received
three years’ imprisonment to run concurrently. While serving
No. 13-2200                                                    3

that sentence, he completed the sentence related to his 1990
drug convictions. He completed his 1993 sentence in Septem-
ber 1995.
   In 1997, he was arrested for delivery of cocaine. He pleaded
guilty to that charge in 1998 and received seven years’ impris-
onment. After his release from the 1998 sentence, Lockett was
arrested in 2003, this time for attempt to possess a controlled
substance. He pleaded guilty and received six months’
conditional discharge and five days of community service.
   In November 2004, Lockett was arrested for and charged
with burglary, to which he pleaded guilty in 2005, resulting in
four years’ imprisonment. His prison sentence and parole for
that crime were completed in 2009.
     Finally, in 2010, Lockett was charged and convicted of the
offense underlying this appeal, being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing,
the parties disputed whether Lockett qualified as an armed
career criminal under 18 U.S.C. § 924(e) and thus subject to the
attendant mandatory fifteen-year minimum. The parties
agreed that two of his prior convictions qualified as predicates,
but disagreed over whether a third qualifying conviction could
be found based on his 1990 drug convictions. The government
argued that because Lockett was subject to an Illinois recidivist
enhancement, which increases the maximum penalty for
Illinois recidivists’ convictions in the manner discussed above,
the convictions were qualifying predicates under the ACCA.
Agreeing with the government, the district court found any of
the 1990 drug convictions could qualify as a predicate convic-
tion based on our decision in United States v. Perkins, 449 F.3d
4                                                   No. 13-2200

794 (7th Cir. 2006). The question then became whether a
restoration of civil rights letter Lockett received in September
1995 precluded the use of his 1990 drug convictions as qualify-
ing predicates. Relying on United States v. Burnett, 641 F.3d 894
(7th Cir. 2011), the district court held that the letter did not
apply to Lockett’s 1990 convictions, and that they could
therefore serve as predicates. Thus, the district court found
Lockett to be an armed career criminal and sentenced him to
the mandatory fifteen-year minimum.
    Lockett presents two issues on appeal. First, he contends
that the district court erred in finding that his 1990 drug
convictions qualified as predicates under the ACCA because
the government never provided evidence from the record that
he actually faced the Illinois recidivist enhancement that would
bring his sentence for those convictions within the purview of
the ACCA. Second, he argues even if the 1990 convictions
qualify as predicates, they cannot be used as such because his
rights as to those convictions have been restored by virtue of
a 1995 restoration of civil rights letter. We need not reach
Lockett’s second argument, however, because as stated in
greater detail below, Lockett lacks a third qualifying conviction
to implicate the ACCA, rendering the district court’s belief that
imposition of the ACCA’s fifteen-year minimum was required
an error. We therefore reverse and remand for resentencing.
                      II. DISCUSSION
    To qualify as an armed career criminal subject to the
ACCA’s mandatory fifteen-year minimum, a defendant must
have three previous convictions for a violent felony or a
serious drug offense, committed on three different occasions.
No. 13-2200                                                      5

Perkins, 449 F.3d at 795; 18 U.S.C. § 924(e)(1). “Under [the]
ACCA, a ‘serious drug offense’ includes ‘an offense under
State law, involving manufacturing, distributing, or possessing
with intent to distribute, a controlled substance … for which a
maximum term of imprisonment of ten years or more is
prescribed by law.’” United States v. Rodriquez, 553 U.S. 377,
381–82 (2008) (emphasis omitted) (quoting 18 U.S.C.
§ 924(e)(2)(A)(ii)). Whether a prior conviction is a qualifying
predicate under the ACCA is a question of law, subject to de
novo review. Kirkland v. United States, 687 F.3d 878, 882 (7th Cir.
2012). Any factual findings related to the defendant’s convic-
tions, however, are reviewed for clear error. Id. at 883.
   The parties do not dispute that Lockett was convicted of
two ACCA-qualifying convictions, but disagree as to whether
he has a third. The district court found that because any of
Lockett’s 1990 drug convictions could qualify as a predicate
under the ACCA, he was subject to the ACCA’s mandatory
minimum. Lockett contends on appeal that this was error and
we agree.
    In Perkins, we held “as a matter of federal law the ‘maxi-
mum term of imprisonment’ to which § 924(e)(2)(A)(ii) refers
is the maximum for the crime of conviction.” 449 F.3d at 796
(emphasis omitted). It made no difference that the defendant
was actually sentenced to less than the maximum; if by virtue
of his recidivism he “exposed himself” to a maximum of ten
years or more in prison, that conviction met the ACCA
statutory standard. Id. Following Perkins’ reasoning, Lockett’s
1990 convictions could qualify as predicates even though he
was ultimately sentenced to only four years’ imprisonment
6                                                  No. 13-2200

because, by virtue of the Illinois recidivist enhancement,
Lockett exposed himself to fourteen or ten years in prison.
    But the Supreme Court’s decision in Rodriquez adds an
evidentiary hurdle to our holding in Perkins. Rodriquez requires
the government to provide evidence from the record that the
defendant was in fact subject to the enhanced recidivist
penalties that could elevate his sentence past the ten-year
mark. 553 U.S. at 388–89. In imposing this additional require-
ment, the Supreme Court eliminated the possibility of a
hypothetical approach in which a court could assume that a
recidivist enhancement applied merely because it could apply.
Therefore, under Rodriquez, if state court records do not
demonstrate that Lockett actually faced the possibility of a
recidivist enhancement, the 1990 convictions cannot be used as
qualifying offenses under the ACCA.
     The Supreme Court indicated a number of examples of
record evidence that could show that a defendant faced the
possibility of a recidivist enhancement, including the judgment
of conviction, the plea colloquy, or from the imposed sentence
itself. Id. None of these examples are in the record before us.
Each document referencing Lockett’s 1990 drug convictions
only mentions his sentence of four years’ imprisonment; there
is no indication in the record that he was ever exposed to the
Illinois recidivist enhancement that would have brought his
maximum up to the ACCA-triggering minimum.
   Without findings of recidivism in Lockett’s record of
conviction, the attendant enhancements cannot be considered
in determining whether Lockett’s 1990 drug convictions
constituted serious drug offenses under the ACCA. According
No. 13-2200                                                   7

to the record, then, Lockett’s 1990 convictions can only be
evaluated in light of the actual four-year sentence imposed.
Because Lockett’s 1990 convictions did not expose him to at
least a ten-year sentence, none qualify as serious drug offenses
within the meaning of the ACCA. See 18 U.S.C. § 924(e)(2)(A).
Therefore, Lockett lacks a third qualifying predicate and the
district court erred in believing that Lockett faced a mandatory
fifteen-year minimum.
    As a closing remark, if there were any doubts as to the
Supreme Court’s intent to impose the evidentiary requirement
we recognize today, we need only look to its recent opinion in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). In Carachuri-
Rosendo, the Court explained that “[in Rodriquez] [w]e held that
a recidivist finding could set the ‘maximum term of imprison-
ment,’ but only when the finding is a part of the record of
conviction.” Id. at 577 n.12. Thus, the evidentiary requirement
is assuredly a part of the Rodriquez holding, and not mere dicta
as the government seems to suggest. See also United States v.
Powell, 691 F.3d 554, 559 (4th Cir. 2012) (highlighting that the
Supreme Court confirmed its Rodriquez holding that a recidi-
vist finding could set the maximum term of imprisonment only
when the finding is a part of the record of conviction in
Carachuri-Rosendo).
                     III. CONCLUSION
   For these reasons, Lockett’s sentence is REVERSED and
REMANDED to the district court for resentencing.
