964 F.3d 924
10th Cir.2020Background
- In 2019 Francisco Cantu pleaded guilty to being a felon in possession of a firearm; the PSR recommended an ACCA enhancement based on three prior Oklahoma drug convictions.
- The two state convictions at issue (Dec. 2010, pleas entered in 2012) were for distribution of methamphetamine under Okla. Stat. tit. 63, § 2-401(A)(1).
- Oklahoma’s drug schedules at the time included at least three substances (e.g., salvinorin A) that were not federal controlled substances.
- The district court adopted the PSR, applied the ACCA, and sentenced Cantu to 210 months (versus a 120-month statutory maximum absent ACCA). Cantu did not object at sentencing.
- The circuit court applied the categorical/modified-categorical framework, concluded § 2-401(A)(1) is not divisible by individual drug (only by three penalty-based categories), held convictions under § 2-401(A)(1) are not ACCA "serious drug offenses" because the statute covers some non-federal substances, and vacated and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Cantu) | Held |
|---|---|---|---|
| Divisibility of Okla. § 2-401(A)(1) | Statute is divisible by individual drug; charging records show methamphetamine. | Statute is a single offense; identity of individual drug is a means, not an element. | § 2-401(A)(1) divisible only by the three penalty categories, not by individual drugs; Watkins controls. |
| Categorical approach — federal vs state schedules | Even if divisible only by category, methamphetamine convictions qualify because methamphetamine is federally controlled. | Categorical approach bars treating state convictions as ACCA predicates when state schedules include substances not in federal schedules. | Because § 2-401 criminalized some substances not federally controlled, § 2-401(A)(1) convictions do not categorically qualify as ACCA serious drug offenses. |
| Realistic-probability test | Cantu must show realistic probability of prosecutions for non-federal substances; absence of such prosecutions defeats his claim. | If statute on its face criminalizes non-federal substances, realistic-probability inquiry is unnecessary. | Court rejects realistic-probability requirement where statute’s plain language expressly reaches non-federal substances (Titties principle). |
| Plain-error review (unpreserved challenge) | Enhancement was proper or at least debatable; error not plain. | Error was clear under controlling Oklahoma precedent (Watkins) and circuit law; plain error relief is warranted. | Error was plain, affected substantial rights (illegal sentence increase), and warrants vacatur and remand for resentencing. |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means and directing divisibility analysis)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (categorical approach rejects state statutes that reach non-federal controlled substances)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts that increase maximum penalty must be elements)
- Watkins v. State, 855 P.2d 141 (Okla. Crim. App. 1992) (OCCA holding § 2-401 is a single offense; supports indivisibility by individual drug)
- United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) (statute’s plain language can obviate need to show actual prosecutions under realistic-probability test)
- Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) (sentencing errors that increase the Guideline range ordinarily satisfy plain-error prongs)