United States v. Cantu Jr.
No. 19-6043. W.D.Okla. Judge Hartz. Armed Career Criminal Act—Sentence Enhancement—Categorical Approach—Plain Error.
July 6, 2020
Defendant pleaded guilty to being a felon in possession of a firearm. According to the presentence report (PSR), defendant was subject to a sentence enhancement under the Armed Career Criminal Act (ACCA) based on three prior Oklahoma convictions. He did not object to the report or file a sentencing memorandum. The district court relied on the PSR and sentenced defendant to a prison term of 210 months. Without the enhancement, the maximum term would have been 120 months.
Although he did not preserve his challenge to the enhancement in district court, defendant appealed the enhancement by arguing that it was plainly contrary to Tenth Circuit law. The ACCA increases the penalty for being a felon in possession of a firearm for any person who has three previous convictions for a violent felony or a serious drug offense. The statutory definition of serious drug offense includes “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” Here, defendant had no prior violent felony.
The Tenth Circuit used the categorical approach to analyze whether defendant had a state conviction for a serious drug offense, looking first to the elements of the state offense and second to whether any conduct that satisfies the elements of the state offense also satisfies the definition of serious drug offense. It is undisputed that when defendant committed the two drug-related offenses at issue here, at least three substances that satisfied the definition of a controlled substance under Oklahoma law were not controlled substances under federal law. Further, Oklahoma case law makes it impossible to say with certainty that the state statute was divisible by individual drug. In addition, the realistic-probability test, which requires a defendant to show a realistic probability that the state would apply its statute to conduct that falls outside the definition in the federal statute, is inapplicable because the Tenth Circuit does not apply this test when the statute on its face clearly proscribes the relevant conduct. Accordingly, defendant’s conviction was not a serious drug offense under the ACCA and the enhancement was error. And because the sentence exceeded the statutory maximum, the error was plain.
The sentence was vacated and the case was remanded for resentencing.