                             In the

    United States Court of Appeals
               For the Seventh Circuit
                   ____________________
No. 18‐3447
UNITED STATES OF AMERICA,
                                                Plaintiff‐Appellee,
                               v.

TREMAYNE T. DOZIER,
                                            Defendant‐Appellant.
                   ____________________

           Appeal from the United States District Court
                 for the Central District of Illinois.
          No. 18‐CR‐20002‐001 — James E. Shadid, Judge.
                   ____________________

  ARGUED SEPTEMBER 5, 2019 — DECIDED FEBRUARY 4, 2020
                ____________________

   Before SYKES, HAMILTON, and SCUDDER, Circuit Judges.
   SYKES, Circuit Judge. Tremayne Dozier was arrested in
2017 for trafficking methamphetamine in Decatur, Illinois. A
federal grand jury indicted him for conspiracy and posses‐
sion of methamphetamine with intent to distribute. Under
the terms of the Controlled Substances Act then in effect,
Dozier faced increased penalties if he had a prior conviction
for a “felony drug offense.” 21 U.S.C. § 841(b)(1)(A),
2                                                         No. 18‐3447

(b)(1)(B)(viii).1 A “felony drug offense” is a drug‐related
offense “that is punishable by imprisonment for more than
one year under any law of the United States or of a State.” Id.
§ 802(44). The government identified one such conviction: in
2006 Dozier was convicted in Texas of unlawful possession
of cocaine, a “state jail felony” punishable by imprisonment
of six months to two years.
     Dozier pleaded guilty to the conspiracy count. At sen‐
tencing he objected to using the 2006 drug conviction to
enhance his sentence. The Texas case had been resolved by
plea bargain; in exchange for Dozier’s guilty plea, the prose‐
cutor agreed to a nine‐month sentence based on section
12.44(a) of the Texas Penal Code, which gives the sentencing
judge the discretion to punish a person convicted of a state
jail felony by imposing a period of confinement permissible
for a Class A misdemeanor—that is, a term not to exceed one
year. See TEX. PENAL CODE ANN. §§ 12.21, 12.44(a). The Texas
court accepted the plea agreement, found Dozier guilty of
the state jail felony, and imposed a nine‐month sentence.
    Dozier argued that the Texas conviction was not a quali‐
fying predicate because the terms of his plea agreement
exposed him to confinement of not more than one year. The
district judge rejected this argument and imposed a sentence
of 20 years, the mandatory minimum for an offender with a
prior felony drug conviction.
    On appeal Dozier again argues that his 2006 Texas con‐
viction doesn’t qualify as a felony drug offense. We disagree.

1 The First Step Act of 2018, effective December 31, 2018, changed
recidivist penalties for drug crimes. We refer throughout this opinion to
the 2018 penalty provisions in the Controlled Substances Act.
No. 18‐3447                                                             3

Dozier pleaded guilty to and was convicted of a two‐year
state jail felony. It does not matter that the sentencing judge
accepted the plea bargain and exercised the discretion
conferred by state law to sentence Dozier as if he were a
misdemeanant. Dozier was, in fact, convicted of a two‐year
drug felony. We affirm the judgment.
                            I. Background
    In February 2006 Dozier was charged in Dallas County
with possession of less than one gram of cocaine in violation
of section 481.115 of the Texas Health and Safety Code. The
crime is a “state jail felony” under Texas law, punishable by
“[c]onfinement in a state jail for any term of not more than
two years or less than 180 days.”2 TEX. PENAL CODE ANN.
§ 12.35(a). On May 3 Dozier agreed to plead guilty in ex‐
change for a sentence of nine months. The written plea
agreement, which he signed, lists the offense and its pun‐
ishment range—“State Jail Felony, 180 days – 2 years State
Jail”—and specifies an “agreed sentence” of nine months,
citing section 12.44(a) of the Texas Penal Code. That section
provides:
        A court may punish a defendant who is con‐
        victed of a state jail felony by imposing the
        confinement permissible as punishment for a
        Class A misdemeanor if, after considering the

2  Texas law has five felony classifications: “(1) capital felonies;
(2) felonies of the first degree; (3) felonies of the second degree;
(4) felonies of the third degree; and (5) state jail felonies.” TEX. PENAL
CODE ANN. § 12.04(a). Section 481.115(b) of the Texas Health and Safety
Code provides that the possession of a controlled substance in an
amount “by aggregate weight, including adulterants or dilutants, [of]
less than one gram” is “a state jail felony.”
4                                                            No. 18‐3447

        gravity and circumstances of the felony com‐
        mitted and the history, character, and rehabili‐
        tative needs of the defendant, the court finds
        that such punishment would best serve the
        ends of justice.
TEX. PENAL CODE ANN. § 12.44(a).3
   The prosecutor submitted the agreement to a magistrate
judge that same day along with a motion to “find [Dozier]
guilty of a State Jail Felony as charged and impose confine‐
ment for a Class A misdemeanor.” Dozier joined the motion.
The magistrate granted it, accepted Dozier’s guilty plea, and
found him “guilty of a State Jail Felony as charged herein.”
The magistrate then recommended that the presiding district
judge adopt the plea agreement and impose a sentence of
nine months. The judge did so, entering judgment on May 3,
2006, convicting Dozier of the state jail felony and ordering
him to serve nine months in jail.
    Fast‐forward to October 2017: Dozier was arrested in
Decatur for dealing crystal meth. In January 2018 a grand
jury indicted him for conspiracy to possess methampheta‐
mine with the intent to distribute, 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(A), and possession of methamphetamine with the
intent to distribute, id. § 841(a)(1), (b)(1)(B)(viii). The gov‐
ernment filed an information under 21 U.S.C. § 851 notifying


3 A differentsubsection of the statute permits a state prosecutor, with the
court’s approval, to prosecute a state jail felony as a misdemeanor offense:
“At the request of the prosecuting attorney, the court may authorize the
prosecuting attorney to prosecute a state jail felony as a Class A misde‐
meanor.” TEX. PENAL CODE ANN. § 12.44(b). This subsection is not at
issue here.
No. 18‐3447                                                  5

the court that it intended to rely on Dozier’s 2006 Texas
conviction to enhance the applicable penalties under § 841.
Specifically, with one prior conviction for a felony drug
offense, Dozier faced a 20‐year minimum sentence on the
conspiracy count, see § 841(b)(1)(A), and a 10‐year minimum
on the possession count, see § 841(b)(1)(B).
    Dozier pleaded guilty to the conspiracy count. At sen‐
tencing he objected to using the Texas conviction to enhance
his sentence. He argued that the conviction wasn’t for a
felony offense because under the plea agreement, he wasn’t
exposed to imprisonment of more than one year. The judge
overruled the objection, counted the conviction as a qualify‐
ing predicate, and sentenced Dozier to a prison term of
20 years, the mandatory minimum.
                        II. Discussion
    Dozier reserved the right to appeal the judge’s ruling that
the Texas conviction qualifies as a predicate felony drug
conviction, triggering the enhanced minimum sentence
under § 841(b)(1)(A). We review de novo questions of law
related to sentencing. United States v. Woolsley, 535 F.3d 540,
549 (7th Cir. 2008). When a district court determines that a
prior conviction counts toward a recidivist sentencing
enhancement, we review de novo that application of the law
to the fact of the prior conviction. United States v. Burge,
683 F.3d 829, 833 (7th Cir. 2012).
    Under then‐existing law, a conviction for conspiracy to
distribute methamphetamine in the quantities at issue here
normally carried a 10‐year minimum sentence, but a prior
conviction for a “felony drug offense” raised the mandatory
minimum to 20 years. § 841(b)(1)(A). As we’ve explained, a
6                                                 No. 18‐3447

“felony drug offense” is a drug‐related offense “that is
punishable by imprisonment for more than one year under
any law of the United States or of a State.” § 802(44). “The
word ‘punishable’ in ordinary English simply means ‘capa‐
ble of being punished.’” United States v. Nieves‐Rivera,
961 F.2d 15, 17 (1st Cir. 1992) (citations omitted).
    Dozier asserts that he pleaded guilty to the Texas drug
charge—a two‐year felony—on the understanding that he
was only exposing himself to punishment for a Class A
misdemeanor, which limits confinement to one year. See TEX.
PENAL CODE ANN. § 12.35(a) (penalties for state jail felonies);
id. § 12.21 (misdemeanor penalties). His plea agreement
referred to section 12.44(a) of the Texas Penal Code, which
gives the sentencing judge the discretion to punish a person
convicted of a state jail felony by imposing the confinement
permissible for a Class A misdemeanor after considering
certain factors about the circumstances of the crime and the
character of the offender. If the judge had rejected the plea
agreement and the magistrate’s recommendation of a nine‐
month sentence, Dozier would have been entitled to with‐
draw his guilty plea. See TEX. CODE CRIM. PROC. ANN.
art. 26.13(a)(2). Because his case was resolved under section
12.44(a), Dozier argues that the conviction doesn’t qualify as
a predicate felony drug conviction and should not have been
used to enhance his sentence.
    The Fifth Circuit, which includes Texas, has considered
and rejected this argument, albeit in the context of a recidi‐
vist enhancement in the Sentencing Guidelines. In United
States v. Rivera‐Perez, the defendant was convicted of illegal
reentry after deportation and objected to using his prior
conviction for a Texas state jail felony to increase his base
No. 18‐3447                                                             7

offense level under the Guidelines. 322 F.3d 350, 351 (5th Cir.
2003). The applicable offense guideline added 16 levels if the
defendant was previously deported after a conviction for a
felony “crime of violence”; using language materially identi‐
cal to § 802(44), the application notes define “felony” as
“‘any federal, state, or local offense punishable by impris‐
onment for a term exceeding one year.’” Id. at 351–52 (quot‐
ing U.S.S.G. § 2L1.2(b)(1)(A) cmt. n.1(B)(iv) (Nov. 2001)). The
defendant argued that his Texas conviction for a state jail
felony did not trigger the enhancement because his plea
agreement relied on section 12.44(a) of the Texas Penal Code
and his actual sentence was just 90 days.
    The Fifth Circuit disagreed, explaining that “[t]he plain
language of [section] 12.44[a] indicates that the crime re‐
mains ‘the felony committed’ even though the defendant
may be punished as if for a misdemeanor.” Rivera‐Perez, 322
F.3d at 352. The court pointed to a series of Texas cases
confirming that the “crime remains a felony even if pun‐
ished as a misdemeanor under [section] 12.44[a].” Id. (citing
Fite v. State, 60 S.W.3d 314, 320 (Tex. Ct. App. 2001); Arriola v.
State, 49 S.W.3d 374, 375–76 (Tex. Ct. App. 2000); Hadnot v.
State, 851 S.W.2d 378, 379 (Tex. Ct. App. 1993)).4 Finally, the
court noted that the defendant’s plea agreement clearly
stated that “although [he] was being punished as for a
misdemeanor, the judgment ‘shall constitute A FINAL


4 Another Texas case can be added to the Fifth Circuit’s list, one decided
after Rivera‐Perez. See Ex parte Palmberg, 491 S.W.3d 804, 805 n.1 (Tex.
Crim. App. 2016) (affirming that a “felony conviction is all that an
applicant must show for a claim to be cognizable in post‐conviction
habeas corpus proceedings” and stating that an applicant who was
sentenced under section 12.44(a) was “convicted of a state jail felony”).
8                                                  No. 18‐3447

FELONY CONVICTION FOR DEFENDANT.’” Id. According‐
ly, the court held that a conviction for a Texas state jail
felony, a two‐year felony under state law, qualifies as a
predicate for the Guidelines enhancement “regardless [of]
whether the defendant is sentenced under Texas Penal Code
[section] 12.44[a].” Id.
    Three years after Rivera‐Perez, the Fifth Circuit reached
the same conclusion in a case involving the recidivist provi‐
sion in the Armed Career Criminal Act (“ACCA”), which
raises the minimum sentence for certain gun crimes if the
defendant has prior convictions for a “violent felony.”
United States v. Harrimon, 568 F.3d 531, 533 n.3 (5th Cir.
2009). The ACCA defines “felony” the same way as the
Guidelines: “any crime punishable by imprisonment for a
term exceeding one year.” 18 U.S.C. § 924(e)(2)(B). Richard
Ray Harrimon pleaded guilty to unlawfully possessing
firearms, and the court had to decide whether his two Texas
convictions for “fleeing by vehicle”—both state jail felo‐
nies—counted as predicate “violent felonies” under the
ACCA. Harrimon, 568 F.3d at 533 n.3. One of Harrimon’s
Texas cases had been resolved under section 12.44(a) with a
misdemeanor‐length sentence; he argued that it could not be
counted as a predicate. The Fifth Circuit disagreed, reaching
the same conclusion as it had in Rivera‐Perez: “the relevant
statute [describing the state jail felony] plainly authorizes up
to two years of imprisonment … , a fact which is unaltered
by the sentencing judge’s discretionary decision [under
section 12.44(a)] to impose a lesser sentence.” Id.
   The Fifth Circuit’s reasoning is sound. We’d need a good
reason to disagree—or at least a statutorily grounded basis
for reaching a different conclusion under the recidivist
No. 18‐3447                                                 9

provisions in the Controlled Substances Act. But the Act’s
definition of “felony” is materially identical to the defini‐
tions in the ACCA and the Guidelines. Dozier has given us
no basis for treating his Texas state‐jail‐felony conviction
differently in this context.
    Dozier argues instead that Rivera‐Perez and Harrimon
have been called into question by the Supreme Court’s
decision in Carachuri‐Rosendo v. Holder, 560 U.S. 563 (2010).
Carachuri‐Rosendo arose under the Immigration and Nation‐
ality Act (“INA”) and concerned eligibility for cancellation
of removal, a form of discretionary relief available to immi‐
grants in removal proceedings who have “not been convict‐
ed of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). The
INA’s definition of “aggravated felony” includes a “drug
trafficking crime,” id. § 1101(a)(43)(B), a phrase further
defined by cross‐reference to the definitions in Title 18: a
“drug trafficking crime” is “any felony punishable under
the Controlled Substances Act (21 U.S.C. §§ 801 et seq.),”
18 U.S.C. § 924(c)(2), and a “felony” is a crime for which the
“maximum term of imprisonment authorized” is “more than
one year,” id. § 3559(a)(5).
    Jose Carachuri‐Rosendo was placed in removal proceed‐
ings based on two Texas misdemeanor convictions for
simple drug possession. Carachuri‐Rosedo, 560 U.S. at 570–71.
He conceded removability but sought relief in the form of
cancellation of removal. The government opposed cancella‐
tion, arguing that his second offense for simple possession
could have been prosecuted in federal court with a recidivist
enhancement, and in that scenario his offense would have
been a felony punishable by up to two years in prison. Id. at
570. (State law, too, authorized a sentence enhancement for
10                                                No. 18‐3447

recidivists, but Carachuri‐Rosendo was not convicted of a
recidivist‐enhanced offense. Id. at 570–71.) Because his
conduct could have been prosecuted as a felony under the
Controlled Substances Act (by application of a recidivist
enhancement), the government insisted that Carachuri‐
Rosendo was ineligible for cancellation of removal.
   The Fifth Circuit agreed, but the Supreme Court re‐
versed. The Court held that the INA “limits the Attorney
General’s cancellation authority only when the noncitizen
has actually been ‘convicted of a[n] aggravated felony’—not
when he merely could have been convicted of a felony but
was not.” Id. at 578 (quoting 8 U.S.C. § 1229b(a)(3)).
    Carachuri‐Rosendo does not undermine Rivera‐Perez and
Harrimon. The defendants in the two Fifth Circuit cases
actually were convicted of felonies; they were not convicted of
misdemeanors that could have been prosecuted as felonies but
were not. Just so here. Dozier was convicted of a two‐year
state jail felony but received a misdemeanor‐length sentence
pursuant to a plea bargain.
    Dozier also relies on United States v. Valencia‐Mendoza,
912 F.3d 1215, 1216 (9th Cir. 2019), but that case doesn’t help
him. In Valencia‐Mendoza the defendant pleaded guilty to
illegal reentry after removal; at sentencing the district court
applied a Guidelines recidivist enhancement for offenders
with a prior felony conviction based on the defendant’s
Washington conviction for possession of cocaine, a Class C
felony. Id. State law specified a five‐year maximum for that
felony class, but the statutory scheme also set a mandatory
six‐month cap on the sentence unless certain aggravating
factors were present. Id. at 1216–17. The six‐month cap
applied in the defendant’s case because no aggravating
No. 18‐3447                                                 11

factors were found; he was sentenced to just 30 days. Id. at
1217. Applying Carachuri‐Rosendo, the Ninth Circuit reversed
and remanded for resentencing without the enhancement.
Because the statutory maximum penalty for the crime was
six months, the defendant’s offense wasn’t punishable by a
term exceeding one year as required for the enhancement. Id.
at 1224.
   Dozier’s Texas conviction is different. Section 12.44(a) is
discretionary, not mandatory.
    For the same reason, Dozier’s reliance on the Eighth Cir‐
cuit’s decision in United States v. Haltiwanger is also mis‐
placed. In that case, the defendant was convicted of
conspiracy to distribute drugs and (like Dozier) faced a
20‐year mandatory minimum under § 841 if he had a prior
conviction for a felony drug offense. 637 F.3d 881, 882 (8th
Cir. 2011). The defendant had a Kansas conviction for failing
to affix a drug tax stamp, a crime with a 13‐month statutory
maximum. The district court counted the conviction, im‐
posed the 20‐year minimum sentence, and the Eighth Circuit
initially affirmed. Id. at 882–83. After the Supreme Court
remanded for reconsideration in light of Carachuri‐Rosendo,
the Eighth Circuit reversed course. Because the defendant
was not a recidivist, the statutory maximum penalty for his
Kansas offense was seven months. Id. Accordingly, the court
concluded that the conviction did not qualify as a prior
felony drug conviction and remanded for resentencing. Id. at
884.
    Again, Dozier’s case is different. Under section 12.44, a
Texas court has the discretion to punish a state jail felony by
imposing a misdemeanor‐length term of confinement. The
statutory maximum for the offense is two years.
12                                                 No. 18‐3447

   This case is closer to United States v. Graham, 315 F.3d 777,
783 (7th Cir. 2003). There the district court sentenced the
defendant to the 20‐year minimum term under § 841 based
on his prior Illinois conviction for felony drug possession. Id.
The defendant argued that the conviction did not count as a
prior drug felony because the Illinois court had sentenced
him to “first offender probation,” which he successfully
completed. Id. at 781. We rejected that argument, holding
that the state court’s decision to sentence the defendant to
probation rather than prison “does not alter the fact that he
possesses a prior drug‐related felony conviction qualifying
him for the enhancement under § 841(b)(1)(B).” Id. at 783.
    To sum up, Dozier pleaded guilty to and was convicted
of a Texas state jail felony punishable by confinement of six
months to two years. For purposes of the Controlled Sub‐
stance Act’s sentencing enhancements for prior felony drug
convictions, the fact that the statutory punishment range for
Dozier’s offense of conviction extended beyond one year is
all that matters. Texas law is clear that a conviction for a
state jail felony remains a conviction for a state jail felony
even if the sentencing court exercises the discretion con‐
ferred by section 12.44(a) and imposes a misdemeanor‐
length sentence. The district judge properly counted Dozi‐
er’s Texas conviction as a predicate felony drug conviction
under § 841.
                                                     AFFIRMED
No. 18‐3447                                                   13

    HAMILTON, Circuit Judge, dissenting. No matter how we
decide this appeal, Mr. Dozier will be punished severely for
his 2018 federal methamphetamine conviction. Our question
is whether the mandatory minimum sentence for his federal
conviction is ten years or twenty, imposed before the First
Step Act took effect. The answer depends on the legal effect
of his 2006 conviction in Texas for possessing 0.4 grams of co‐
caine. More specifically, the question is whether that convic‐
tion counts as one for a prior “felony drug offense” under 21
U.S.C. § 841(b) (2018), defined in 21 U.S.C. § 802(44) as “an of‐
fense that is punishable by imprisonment for more than one
year under any law of the United States or of a State or foreign
country that prohibits or restricts conduct relating to” various
controlled substances.
    The key word here is “punishable.” If a defendant’s prior
sentence was more than a year in prison, it is easy to apply. If
a defendant’s prior sentence was less than a year in prison, it
is also established that we focus on what the defendant’s sen‐
tence for the crime could have been under the law, not what
it actually was. But in applying that standard to a host of state
statutes and sentencing guidelines, the deceptively simple
word “punishable” becomes more complex. Two questions
are decisive here: who must be punishable with more than
one year in prison, and as of what point in the proceedings?
My colleagues do not answer those questions directly, but the
correct answers point toward reversal here.
   After Carachuri‐Rosendo v. Holder, 560 U.S. 563 (2010), it is
not enough that Texas cited a drug‐possession statute labeled
as a felony as Dozier’s offense of conviction. It also is not
enough that others convicted under that same statute might
face more than a year in prison. The question is instead
14                                                  No. 18‐3447

whether, at the time of conviction, the Texas judge had legal au‐
thority to send Dozier himself to prison for more than one year.
She did not. Such a sentence was legally impossible after the
judge accepted Dozier’s binding plea agreement and con‐
victed him. I would accordingly find that the 2006 conviction
was, for Dozier, not for “an offense that is punishable by im‐
prisonment for more than one year.” Even if that conclusion
is not correct, the use of the word “punishable” in the Con‐
trolled Substances Act is at least ambiguous as applied to this
Texas conviction. I would apply the rule of lenity and still re‐
mand this case for resentencing.

I. Offense “Punishable” by More than One Year?

    Dozier was charged with violating Texas Health & Safety
Code § 481.115, which makes possession of less than a gram
of cocaine a “state jail felony.” Ordinarily, a state jail felony
can be punished by up to two years in a state jail. Tex. Penal
Code § 12.35(a). Dozier was certainly charged with an offense
that was punishable by imprisonment for more than one year.
    But the Controlled Substances Act speaks of “a prior con‐
viction,” of course, not a prior charge. Pursuant to a plea
agreement, the Texas prosecutor and Dozier jointly moved
the court to “find him guilty of a State Jail Felony as charged
and impose confinement for a Class A misdemeanor as pro‐
vided in Sec. 12.44(a) of the Texas Penal Code” (underlining
in original). Section 12.44 gives judges and prosecutors two
paths to ensure that a “state jail felony” is punished as a mis‐
demeanor:
       (a) A court may punish a defendant who is con‐
       victed of a state jail felony by imposing the con‐
       finement permissible as punishment for a Class
No. 18‐3447                                                             15

        A misdemeanor if, after considering the gravity
        and circumstances of the felony committed and
        the history, character, and rehabilitative needs
        of the defendant, the court finds that such pun‐
        ishment would best serve the ends of justice.
        (b) At the request of the prosecuting attorney,
        the court may authorize the prosecuting attor‐
        ney to prosecute a state jail felony as a Class A
        misdemeanor.
Tex. Penal Code § 12.44. After committing to either the (a)
path or the (b) path, the judge must sentence the defendant to
misdemeanor punishment, which means “confinement in jail
for a term not to exceed one year.” Id. § 12.21. Dozier’s bind‐
ing plea agreement, for example, required a sentence of nine
months.
    The Texas trial court granted the joint motion under
§ 12.44(a). The final judgment described the offense of convic‐
tion using two phrases: “convicted of: state jail” and “punish‐
ment reduced to: Class A misdemeanor.” Importantly, the
judgment also stated that Dozier had the right to withdraw
his guilty plea if the court had rejected the misdemeanor pun‐
ishment.1 As a result, Dozier’s conviction barred the judge
from sentencing him to more than one year.
   Texas was still free to refer to the offense of conviction as
a “state jail felony,” of course, and to attach whatever

    1 See Tex. Code Crim. Proc. art. 26.13(a)(2) (“[T]he court shall inform
the defendant whether it will follow or reject the agreement in open court
and before any finding on the plea. Should the court reject the agreement,
the defendant shall be permitted to withdraw the defendant’s plea of
guilty . . . .”).
16                                                   No. 18‐3447

collateral consequences that label carries in Texas. I assume
that Texas in fact regarded Dozier’s conviction as a state jail
felony. The majority concludes that the label of the offense
and the ordinary maximum of two years control here, relying
on Fifth Circuit decisions that have so interpreted Texas Penal
Code § 12.44(a). See ante at 12. But ours is a question of federal
statutory interpretation, not Texas law as such. See United
States v. Graham, 315 F.3d 777, 783 (7th Cir. 2003). State‐law
labels do not control under 21 U.S.C. § 802(44). Burgess v.
United States, 553 U.S. 124, 129 (2008).
    More important, the analysis must look beyond the maxi‐
mum possible sentence for just any defendant. There is no
doubt that some defendants convicted of the offense of con‐
viction, possession of less than one gram of cocaine, can be
punished with as much as two years in prison. See Tex.
Health & Safety Code § 481.115(b); Tex. Penal Code § 12.35(a).
As I read the Supreme Court’s decisions most closely on
point, however, we have answers to the two questions: who
must be punishable, and as of when? The issue is not whether
anyone convicted of the offense can be sentenced to more than
one year, but whether this defendant could have been sen‐
tenced to more than one year. And that question must be an‐
swered as of the time of conviction, not any earlier stage, such
as charging or plea negotiations.
   In United States v. Rodriquez, 553 U.S. 377 (2008), and Cara‐
churi‐Rosendo v. Holder, 560 U.S. 563 (2010), the Supreme Court
directed the focus to the situation of this individual defend‐
ant. In Rodriquez, the defendant was convicted in federal court
of possessing a firearm as a felon in violation of 18 U.S.C.
§ 922(g). His maximum sentence was ten years, unless he had
three previous convictions for violent felonies or “serious
No. 18‐3447                                                    17

drug offenses,” in which case he faced a minimum fifteen
years in prison. “Serious drug offense” was defined for these
purposes to include state drug offenses “for which a maxi‐
mum term of imprisonment of ten years or more is prescribed
by law.” 18 U.S.C. § 924(e)(2)(A)(ii); see 553 U.S. at 381–82. For
a first‐time offender, Rodriquez’s three prior Washington
drug felonies would have carried maximum five‐year sen‐
tences. Because of his individual criminal record, though, the
offenses Rodriquez had committed carried maximum sen‐
tences of ten years. Id. at 380–81. The Supreme Court held that
the maximum sentences “prescribed by law” as “set by the
applicable recidivist provision” applicable to Rodriquez were
the relevant standards. Id. at 393. His state convictions there‐
fore triggered the enhanced federal sentence.
    Rodriquez thus teaches us to focus on the punishment this
individual defendant faced in the prior case. So far, so good.
Two years later in Carachuri‐Rosendo, the Supreme Court re‐
jected the government’s effort to stretch the logic of Rodriquez
to the punishment that some other hypothetical offenders
might face. See 560 U.S. at 577 n.12 (distinguishing Rodriquez).
In doing so, the Court reinforced the focus on the particular
defendant and taught that the punishment authorized by law
must be measured at the time of the individual defendant’s
conviction, not the time of charging.
   The question in Carachuri‐Rosendo was whether, under im‐
migration law, the petitioner had been convicted of an “ag‐
gravated felony.” The government argued that the second of
two drug possessions, which had been treated as a misde‐
meanor under Texas law, should count as an aggravated fel‐
ony under federal immigration law. According to the govern‐
ment, since the offense could have been prosecuted as an
18                                                 No. 18‐3447

aggravated felony under federal law, the petitioner should be
treated as if he had been convicted of an aggravated felony.
560 U.S. at 570. The Supreme Court unanimously rejected that
proposal to rely on what could have been. The record of the
second conviction included no finding about the first convic‐
tion. That distinguished the case from Rodriquez and meant
that the second conviction did not count as an aggravated fel‐
ony. Id. at 576–78 & n.12.
    The Court explained further in Carachuri‐Rosendo that the
aggravated felony determination for federal law had to be
based on the record of conviction, not based on what a differ‐
ent prosecutor might have tried to do with a recidivist en‐
hancement. Id. at 580–81. In other words, the defendant must
“have been actually convicted of a crime that is itself punisha‐
ble as a felony under federal law.” Id. at 582.
    The logic of Carachuri‐Rosendo and Rodriquez also shows
that the focus must be the punishment legally available at the
time of conviction, not the time of charging. Both opinions
stressed the facts that recidivist enhancements (a) may not be
known at the time of charging and (b) ordinarily must be the
subject of formal notice and an opportunity to be heard and
must be reflected in the record before they can be used to en‐
hance a sentence. 553 U.S. at 389; 560 U.S. at 572, 576.
    The same logic also works for the benefit of a defendant
who agrees to plead guilty to a lesser charge. For example, my
colleagues and I agree that a defendant who is charged with
a low‐level felony but who pleads guilty to a serious misde‐
meanor (maximum sentence of one year) has not been con‐
victed of an offense “punishable” by more than one year in
prison. That is so even if he faced more than one year at the
time of charging, and even if his actual conduct could have
No. 18‐3447                                                      19

fully justified a felony conviction and sentence. At the time of
conviction, such a defendant was not facing more than one
year in prison.
    With the proper focus on the maximum sentence legally
applicable to this defendant, on this record, at the time of convic‐
tion, I do not see a sound basis for distinguishing such a plea
agreement from this case. At the time of his 2006 conviction,
Dozier was not legally subject to a sentence of more than one
year.
    Our colleagues in other circuits have applied Rodriquez
and Carachuri‐Rosendo to mandatory state sentencing guide‐
lines. Their decisions are consistent with my reading of those
Supreme Court cases. A consensus is emerging that a maxi‐
mum penalty set by state sentencing guidelines—as applied
to a particular defendant—controls the federal question of
what punishment was available. For instance, in United States
v. Pruitt, 545 F.3d 416, 423 (6th Cir. 2008), the Sixth Circuit in‐
terpreted Rodriquez to require asking whether “the particular
defendant actually faced the possibility of the enhancement.”
Cases decided since Carachuri‐Rosendo have continued this
approach. See United States v. Simmons, 649 F.3d 237, 243 (4th
Cir. 2011) (en banc) (prior conviction “punishable” only to ex‐
tent that mandatory state sentencing guidelines permitted for
the particular defendant); United States v. Haltiwanger, 637
F.3d 881, 884 (8th Cir. 2011) (same, notwithstanding state’s la‐
bel of prior conviction as “felony”); United States v. Valencia‐
Mendoza, 912 F.3d 1215, 1224 (9th Cir. 2019) (same); United
States v. Brooks, 751 F.3d 1204, 1211 (10th Cir. 2014) (same, fo‐
cusing on record of prior conviction); see also United States v.
Lockett, 782 F.3d 349, 352 (7th Cir. 2015) (“under Rodriquez, if
state court records do not demonstrate that Lockett actually
20                                                  No. 18‐3447

faced the possibility of a recidivist enhancement, the 1990 con‐
victions cannot be used as qualifying offenses”).
    These decisions point in the same direction I would take:
focus on the legally available maximum sentence, on the state‐
court record, at the time of conviction. Take Simmons, in
which the en banc Fourth Circuit followed Carachuri‐Rosendo
to overrule its prior precedents. See 649 F.3d at 241. North
Carolina categorized the predicate offense as a “Class I fel‐
ony.” Id. at 240. Depending on a defendant’s history and other
factors established by state law, the maximum sentence could
have been over a year or no time at all. Id. at 241. Before Cara‐
churi‐Rosendo, the Fourth Circuit had used a “worst possible
criminal history” approach, imagining how North Carolina
would treat the worst recidivist charged with that crime. Id.
at 241, 246. Simmons abandoned this method because Cara‐
churi had rejected “considering hypothetical aggravating fac‐
tors when calculating [the] maximum punishment.” Id. at 244.
Instead, the Fourth Circuit looked at the sentence to which
Simmons himself was exposed based on the sentencing fac‐
tors proved by the state. That sentence was only “community
punishment,” with no prison at all. Id. at 243.
    This individualized evaluation cannot happen at the time
of charging. The main dissent in Simmons pressed this very
point: “the aggravated factors need not be part of the indict‐
ment or formal charge, nor is the conviction itself different
from a conviction for the presumptive (or, indeed, mitigated)
offense.” Id. at 256 (Agee, J., dissenting). But the Fourth Cir‐
cuit correctly rejected this argument as contrary to Rodriquez
and Carachuri‐Rosendo. Id. at 243 (majority). In Rodriquez, the
Supreme Court explained that if state court records “do not
show that the defendant faced the possibility of a recidivist
No. 18‐3447                                                    21

enhancement, it may well be that the Government will be pre‐
cluded from establishing that a conviction was for a qualify‐
ing offense.” 553 U.S. at 389. Carachuri‐Rosendo reiterated this
limit on Rodriquez: “a recidivist finding could set the ‘maxi‐
mum term of imprisonment,’ but only when the finding is a
part of the record of conviction.” 560 U.S. at 577 n.12; see also,
e.g., Brooks, 751 F.3d at 1210 (following this limit on Rodriquez
to overrule circuit precedent).
    My colleagues err in concluding that Simmons and similar
decisions are not relevant here. The majority distinguishes Va‐
lencia‐Mendoza, 912 F.3d at 1216, and Haltiwanger, 637 F.3d at
881, on the theory that the lower sentences in those cases were
mandated by law, while the use of § 12.44(a) is discretionary.
Ante at 10–11. The theory does not stand up to those opinions
or the state‐court record here. Both Rodriquez and Carachuri‐
Rosendo also dealt with decisions by prosecutors that were
discretionary at the outset. The prosecutors could decide how
to charge the defendants and whether to seek recidivist en‐
hancements. Section 12.44, in both subsections (a) and (b),
gives the judge alone or the judge and the prosecutor together
discretion to reduce the available sentencing range. But once
the judge exercised that discretion in Dozier’s 2006 case to ac‐
cept a binding plea with a § 12.44(a) agreement, the reduced
range became as binding for Dozier as the reduced ranges
were in Valencia‐Mendoza and Haltiwanger and the other man‐
datory state‐guideline cases.
    A prosecutor’s choice after charging to prove up a recidi‐
vist enhancement, which controlled in Rodriquez, is just the
counterpart to a choice to offer a plea to a misdemeanor or a
binding plea for a misdemeanor sentence under § 12.44(a).
Under the North Carolina guidelines in Simmons, for instance,
22                                                            No. 18‐3447

“[o]nce the judge identifies the appropriate range . . . he must
choose the defendant’s minimum sentence from within that
range.” 649 F.3d at 240; see also N.C. Gen. Stat. § 15A‐
1340.16(a) (“[T]he decision to depart from the presumptive
range is in the discretion of the court.”). In other words, a
North Carolina judge has an initial and discretionary choice.
After the choice is made, though, the sentence is capped as a
matter of law. The same is true of the discretion authorized
by § 12.44(a) and used in Dozier’s binding plea agreement.2
    Perhaps the Supreme Court meant to establish a one‐way
ratchet in Rodriquez—so that a post‐charging recidivist en‐
hancement can raise a maximum sentence but a post‐charg‐
ing, legally binding cap cannot lower it. That seems to be the
rule my colleagues implicitly adopt. But that is not consistent
with Carachuri‐Rosendo or the recent decisions of our col‐
leagues in other circuits. Since federal recidivist rules can be
governed by the post‐charging actions of a state prosecutor to
raise the legally permissible sentence in an earlier case, I see
no reason to disregard similar actions that lowered the legally
permissible sentence in an earlier case. And since Dozier re‐
tained an unqualified right to withdraw his guilty plea if the


     2 In fact, the leading Fifth Circuit case analyzing § 12.44(a) empha‐
sized the parallel to mandatory sentencing guidelines. In United States v.
Rivera‐Perez, relied on by the majority, ante at 6–7, the Fifth Circuit said
that it was “apply[ing] the essential reasoning” of its decision the previous
year in United States v. Caicedo‐Cuero, 312 F.3d 697 (5th Cir. 2002). See 322
F.3d 350, 352. Caicedo‐Cuero involved a Texas law that “provided a maxi‐
mum sentence of two years but mandated that first‐offenders should get
suspended sentences and probation.” Id. So while my colleagues seek to
draw a sharp line between § 12.44(a) and mandatory sentencing guide‐
lines, their similarities provided the “essential reasoning” of the case the
majority relies on.
No. 18‐3447                                                    23

judge had rejected the misdemeanor punishment under
§ 12.44(a), his 2006 offense was not punishable by more than
one year in prison when he was convicted. That cap was as
legally binding as if Dozier had pleaded guilty to an offense
labeled a misdemeanor. His mandatory minimum sentence in
this case should have been ten years, not twenty.

II. The Rule of Lenity

    At the very least, we should recognize that the Controlled
Substances Act is ambiguous as applied to Dozier’s case. The
phrases “a prior conviction” and “an offense that is punisha‐
ble by imprisonment for more than one year” simply do not
dictate the treatment of binding plea agreements to hybrid
convictions under § 12.44(a). To my knowledge, only one
other circuit has examined a plea agreement with a binding
sentencing term after Carachuri‐Rosendo. A Fourth Circuit
panel also split on the question. See United States v. Valdovinos,
760 F.3d 322 (2014); id. at 330 (Davis, J., dissenting). As here,
the panel majority sided with the government, declining to
extend the reasoning of Simmons to a binding plea agreement.
But Judge Davis’s dissent shows room for reasonable disa‐
greement on how Congress meant courts to analyze a binding
plea under an unusual statute like § 12.44(a).
    I think the better reading is that Dozier’s 2006 conviction
should not count under § 841(b), but even if I thought the
proper result were not clear, I would apply the rule of lenity.
The rule of lenity “applies if at the end of the process of con‐
struing what Congress has expressed there is a grievous am‐
biguity or uncertainty in the statute.” Shaw v. United States,
137 S. Ct. 462, 469 (2016) (quotations omitted). “When a stat‐
ute remains ambiguous even after considering its text,
24                                                   No. 18‐3447

context, structure, history and purpose, then—and only
then—the rule of lenity may apply.” United States v. Marcotte,
835 F.3d 652, 656 (7th Cir. 2016). “[T]he rule has been applied
not only to resolve issues about the substantive scope of crim‐
inal statutes, but to answer questions about the severity of
sentencing . . . .” United States v. R.L.C., 503 U.S. 291, 305
(1992).
    Acknowledging the rule’s limited scope, I believe this to
be an appropriate case for its application. Section 12.44(a) sets
up a hypothetical almost tailor‐made to test the boundaries of
the increasingly case‐specific arithmetic mandated by the Su‐
preme Court in this context. When such a hypothetical pre‐
sents itself, we should err on the side of lenity because “no
citizen should be held accountable for a violation of a statute
whose commands are uncertain, or subjected to punishment
that is not clearly prescribed.” United States v. Santos, 553 U.S.
507, 514 (2008).
   I respectfully dissent. We should reverse and remand for
resentencing without the enhancement based on Dozier’s
2006 conviction.
