UNITED STATES OF AMERICA, Plаintiff - Appellee, v. FRANCISCO CANTU, JR., Defendant - Appellant.
No. 19-6043
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
July 6, 2020
PUBLISH
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
FILED United States Court of Appeals Tenth Circuit July 6, 2020 Christopher M. Wolpert Clerk of Court
Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:18-CR-00059-HE-1)
Jacob Rasch-Chabot, Assistant Federal Public Defender, Denver, Colorado (Virginia L. Grady, Federal Public Defender, and Shira Kieval, Assistant Federal Public Defender, Denver, Colorado, on the briefs) for the Defendant-Appellant.
Steven W. Creager, Assistant United States Attorney (Timothy J. Downing, United States Attorney, and Mark R. Stoneman, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for the
HARTZ, Circuit Judge.
Defendant Francisco Cantu, Jr. appeals the enhancement of his sentence under the Armed Career Criminal Act (ACCA),
The ACCA enhancement rested in part on the characterization of Defendant‘s two prior convictions for drug offenses under
After describing the proceedings against Defendant, we summarize the relevant law under thе ACCA, apply that law to Defendant‘s prior state drug convictions, and then consider whether relief is proper even though Defendant did not preserve the issue in district court.
I. BACKGROUND
In 2019 Defendant pleaded guilty to being a felon in possession of a firearm. See
II. THE ACCA
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.”
To determine whether a state conviction was for a serious drug offense, we generally begin with the categorical approach. See United States v. Smith, 652 F.3d 1244, 1246 (10th Cir. 2011) (categorical approach applies to both violent felonies
The Supreme Court recently illustrated these two points in Mellouli v. Lynch, 135 S. Ct. 1980, 1983–84 (2015), where it applied the categorical approach to a provision in the Immigration and Nationality Act authorizing the removal of an alien convicted of violating a state law “relating to a controlled substance (as defined in section 802 of Title 21),”
Because the government did not argue otherwise, see id. at 1986 n.4, the Supreme Court in Mellouli treated the Kansas statute as stating a single criminal offense, which could be violated in a number of alternative ways, depending on what controlled substance was involved. But sometimes the alternatives (say, each controlled substance) in a statute define distinct criminal offenses. We then say that the statute is divisible and apply the modified-categorical approach, in which the categorical approach is applied separately to the relevant sub-crime within the statute. See Mathis, 136 S. Ct. at 2249. A court can ascertain which sub-crime the defendant was convicted of by examining a limited category of court records, such as the charging document, jury instructions, a plea agreement, or a plea colloquy. See id.
To determine whether a statute is divisible, it is essential to distinguish between elements and means. “Elements are the constituent parts of a crime‘s legal definition—the things the prosecution must prove to sustain a conviction.” Id. at 2248 (internal quotation marks omitted). They are what the jury must unanimously find beyond a reasonable doubt to render a guilty verdict, and what a defendant must admit when pleading guilty. See id. Means, in contrast, “spell[] out various factual ways of committing some component of the offense-a jury need nоt find (or a defendant admit) any particular item.” Id. at 2249. For example, a statute may have as an element the use of a “deadly weapon” and “further provide[] that the use of a ‘knife, gun, bat, or similar weapon’ would all qualify [as means].” Id. at 2249 (further internal quotation marks omitted). A jury could convict even if half believed the defendant used a knife and the other half thought he used a gun, so long as there was unanimity on the relevant element-namely, that he used a “deadly weapon.” See id.; United States v. Degeare, 884 F.3d 1241, 1251–52 (10th Cir. 2018) (noting that “Mathis makes jury unanimity the touchstone of the means-or-elements inquiry” and that “we have likewise adopted a unanimity-focused approach to the means-or-elements question“).
With this background we now examine Defendant‘s state drug convictions to see whether they qualify as serious drug offenses.
III. APPLICATION TO DEFENDANT‘S CONVICTIONS
A. Divisibility of § 2–401(A)(1)
Defendant‘s 2012 convictiоns were for violations of an Oklahoma statute that made it unlawful “[t]o distribute, dispense, transport with intent to distribute or dispense, possess with intent to manufacture, distribute, or dispense, a controlled dangerous substance or to solicit the use of or use the services of a person less than eighteen (18) years of age to cultivate, distribute or dispense a controlled dangerous substance.”
The government argues, however, that the Oklahoma statute is divisible based on each individual drug listed in Oklahoma‘s drug schedules and that Defendant was convicted of offenses involving methamphetamine. Since methamphetamine is a federal controlled substance, see
The principal issue on appeal thus is whether the state statute is divisible, with a violation for each controlled substance being a distinct offense. To help us answer the question, the Supreme Court has set forth a framework for analysis. First, we should begin by examining “authoritative sources of state law,” including the statutе on its face and state-court decisions. Mathis, 136 S. Ct. at 2256. If, for example, “a state court decision definitively answers the question, a sentencing judge need only follow what it says.” Id. Next, “if state law fails to provide clear answers, federal judges have another place to look: the record of a prior conviction itself.” Id. For example, “an indictment and jury instructions could indicate, by referencing
Federal courts have interpreted statutes similar to Oklahoma‘s on a number of occasions and have relied on state-court authority to determine divisibility, although the authorities in different states point in different directions. See Cucalon v. Barr, 958 F.3d 245, 253 (4th Cir. 2020) (collecting cases). Here, too, a state-court decision provides the answer to divisibility. Before discussing the decision, however, we should say a little more about the Oklahoma statutory scheme. Section 2–401(A)(1) did not distinguish among the various substances defined as controlled dangerous substances by Oklahoma law. But the penalties were not the same for every drug offense. Sectiоn 2–401(B) introduced the penalty provisions with: “Any person who violates the provisions of this section with respect to” and then set different penalties for three different categories of controlled dangerous substances. See
This and other courts have held that decisions like Watkins resolve the divisibility question. See United States v. McKibbon, 878 F.3d 967, 975 (10th Cir. 2017) (Colorado Supreme Court double-jeopardy decision that defendant could not be convicted of both possession and distribution “addresses exactly th[e] question” of whether statute was divisible); United States v. Garcia, 948 F.3d 789, 794 (7th Cir. 2020) (considering an Indiana intermediate-court case that held “possessing marijuana and hashish is only one violation” to be “the authoritative resolution” of the divisibility issue); Martinez v. Sessions, 893 F.3d 1067, 1071 (8th Cir. 2018) (concluding that Missouri double-jeopardy court decisions show thаt each controlled substance is an element); see also Najera-Rodriguez v. Barr, 926 F.3d 343, 352–353 (7th Cir. 2019) (interpreting Illinois case describing element as a “controlled substance” to “signal[]” that “identity of the controlled substance is not an element“). But see United States v. Burris, 912 F.3d 386, 403-04 (6th Cir. 2019) (en banc), cert. denied, 140 S. Ct. 90 (2019) (interpreting Ohio law
The government points out, however, that Watkins recognized that punishment for violations of § 2–401(A)(1) is “based on the type of drug involved,” Watkins, 855 P.2d at 142, and that in light of United States Supreme Court authority postdating Watkins, the statute must therefore be divisible. There is much truth in what the government says, but it does not affect our conclusion. First, the government is correct that the Oklahoma punishment for offenses involving controlled dangerous substances depends on the substance. We have already noted that § 2–401(B) divides substances into three categories with different maximum sentences. Second, it is true that after Watkins was decided the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In other words, a fact that must be proved to increase the penalty is an element of the offense. See Mathis, 136 S. Ct. at 2256 (“If statutory alternatives carry different punishments, then under Apprendi they must be elements.“). Thus, the category to which an Oklahoma controlled dangerous substance belongs is an element of a violation of § 2–401(A)(1). And third, because different offenses under § 2-401(A)(1) have different elements, the statute must be divisible. See United States v. Maldonado-Palma, 839 F.3d 1244, 1247 (10th Cir. 2016) (“New Mexico‘s aggravated assault statute is a divisible statute because it sets out alternative elements for aggravated assault in three subsections.“).
That syllogism, however, does not take the government far enough to prevail in this case. It is not as if the penalty is different for each controlled dangerous substance. Those substances are divided into only three categories for purposes of punishment. Therefore, § 2–401(A)(1) is divisible based on those three categories. But any further division into individual substances appears inconsistent with Watkins. It effectively held that the jury did not need to agree on which controlled dangerous substancе was involved in the defendant‘s crime. From Apprendi we now know that the jury must agree on which category the substance belongs to. But Apprendi still leaves to Oklahoma to determine whether juries must agree on which substance within a category was involved. Although the precise holding in Watkins is incorrect because cocaine and PCP were in different categories for sentencing purposes, the language in Watkins appears inconsistent with the notion that now, in light of Apprendi, the specific controlled dangerous substance is an element of § 2–401(A)(1). Indeed, just last year the OCCA, agreeing with a concession by the State, held that a defendant could not be convicted of both unlawful possession with intent to distribute cocaine and unlawful possession with intent to distribute methamphetamine (which belong to thе same category for sentencing) when both drugs were found in the same receptacle. See Alexander v. State, 449 P.3d 860, 868 (Okla. Crim. App. 2019) (“Based on Watkins, we must vacate Count 2 . . . .“); id. at 871 (Lumpkin, J., concurring in part and dissenting in part) (continuing to apply Watkins since “the Oklahoma Legislature failed to set out that possession of each separate drug constitutes a separate offense
Although we consider Watkins dispositive, we also address three arguments made by the government based on other state-law sources. None is persuasive.
First, the government relies on the Oklahoma Uniform Jury Instruction for Defendant‘s offenses,4 which at the time of his conviction provided:
No person may be convicted of distributing a controlled dangerous substance unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, knowingly/intentionally,
Second, distributing/(transporting with the intent to distribute)/[soliciting the use]/[using the services] of a person less
than 18 year of age to cultivate/distribute/ manufacture/(attempt to manufacture);
Third, the controlled substance of [Name of Substance].
Okla. Unif. Jury Instr. CR (2d) 6–2 (bold lettering omitted). The government contends that because the third element is singular the instruction clearly indicates that only one substance can be inserted, which in turn shows that the individual drug is an element.
If the jury instruction or a usage note with the instruction expressly required that only one substance be stated in the instruction on the third element, the government would have a better argument, even though Oklahoma jury instructions are not treated as definitive, see Mitchell v. State, 387 P.3d 934, 943 (Okla. Crim. App. 2016) (“Trial courts should use the uniform jury instructions if they state the applicable law.” (emphasis added));
We address summarily the government‘s remaining two arguments, largely because their logic escapes us. One argument is that the penalty sections of § 2–401 indicate divisibility because they refer not only to drug schedules but to specific drugs. Recall that § 2–401(B)(1) sets the penalty for any “substance classified in Schedule I or II which is a narcotic drug, lysergic acid diethylamide (LSD),” or which is one of five other substances related to GHB.
The government‘s other argument is based on the Oklahoma Methamphetamine Registry Act, which establishes a registry for methamphetamine offenders and makes it unlawful for them to have Schedule V compounds or pseudoephedrine. See
B. Realistic-Probability Test
Next, the government argues that even if § 2–401(A)(1) is not divisible by individual drug, the statute nevertheless satisfies the categorical approach because we can ignore the fact that Oklahoma characterizes three substances as controlled dangerous substances which are not federal controlled substances. It urges us to apply the realistic-probability test to reach that conclusion.
The realistic-probability test has been applied by the Supreme Court to preclude defendants from arguing that a state statute does not satisfy the categorical approach because under certain imagined circumstances it would be possible to violate the state statute and not satisfy requirements under the ACCA for a violent felony or a serious drug offense. The test requires the defendant to show that there is “a realistic probability, not a theorеtical possibility, that the State would apply its statute to conduct that falls outside the [definition in the federal statute].” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). In Gonzales the Supreme Court rejected the defendant‘s argument that his California vehicle-theft offense did not satisfy the federal statutory definition of theft because California courts could apply state accomplice-liability doctrine to non-theft conduct. See id. at 190. The Court held that his “application of legal imagination to a state statute‘s language” was insufficient. Id. at 193. Instead, he was required to point to cases in which the statute had been applied to such conduct. See id. The government argues here that Defendant would fail the realistic-probability test because the parties have not identified any case prosecuting a defendant under § 2–401(A)(1) for conduct involving the three non-federally controlled substances.
In this circuit, however, we have held that a defendant need not come forward with instances of actual prosecution when the “plain language” of the statute proscribes the conduct at issue. Titties, 852 F.3d at 1274. In Titties the government argued that the defendant was required to come forward with a “case in which Oklahoma has prosecuted someone under [the purported ACCA predicate statute] for pointing a firearm in obvious jest.” Id. We said that it was enough that the statute explicitly “reaches conduct undertaken for purposes of ‘whimsy, humor or prank.‘” Id. So too here. The plain language of § 2–401(A)(1) expressly criminalized drugs that were not federally controlled and thus falls “outside the ACCA‘s ambit.” Id.; see United States v. Abeyta, 877 F.3d 935, 944 (10th Cir. 2017) (applying this aspect of Titties in the context of a sentencing-guidelines enhancement). It requires no “legal imagination,” Gonzales, 549 U.S. at 193, to see that Oklahoma law forbade distribution of three substances that are not federal controlled substances.
In sum, we conclude that § 2–401(A)(1) is not divisible by individual drug. Because that statute prohibits the distribution of three drugs that were not federally controlled, Defendant‘s conviction under that statute was not a “serious drug offense” under the ACCA. The enhancement of Defendant‘s sentence under the ACCA was therefore error.5
Because Defendant raised no objection to the ACCA enhancement during sentencing, the last obstacle he faces is plain-error review. “Under Federal Rule of Criminal Procedure 52(b), a plain error that affects substantial rights may be considered even though it was not brought to the court‘s attention.” United States v. Faulkner, 950 F.3d 670, 672 (10th Cir. 2019) (brackets аnd internal quotation marks omitted). But to prevail, Defendant must show that “(1) an error occurred; (2) the error was plain; (3) the error affected his substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of a judicial proceeding.” Id. (brackets and internal quotation marks omitted).
Our discussion above establishes error in Defendant‘s sentencing. We further conclude that the error was plain. “An error is plain if it is clear or obvious under current, well-settled law” of this court or the Supreme Court. Id. at 678 (internal quotation marks omitted). That standard has been satisfied. Watkins is definitive and, in every material respect, is still good law in Oklahoma. See McKibbon, 878 F.3d at 976 (resolution of divisibility issue was plain, based in part on the “clear holding of the Colorado Supreme Court“). We reject the government‘s contention that the absence of a previous casе from this court specifically addressing § 2–401(A)(1) made the issue debatable. See Titties,
852 F.3d at 1272 n.19 (rejecting similar argument); Faulkner, 950 F.3d at 680 (“[T]here need not be an in-circuit case dealing with the precise state statute at issue if there is a case that sets forth a principle clearly generalizable to the subject statute.“). It is worth recalling that it falls on the government to establish divisibility with certainty, and we have suggested that this standard may benefit a defendant on plain-error review. See Titties, 852 F.3d at 1272 n.19. But see United States v. Bain, 874 F.3d 1, 31 (1st Cir. 2017) (holding, based on the interplay between plain error and the divisibility question‘s certainty requirement, that a defendant “can only succeed on the plain error standard if the . . . statute was clearly indivisible at the time of his conviction“). But Defendant needs no such benefit in this case, because Watkins clearly answers the divisibility question.
Nor is the error in this case less plain becausе of prior precedential opinions of this court holding that a conviction under § 2–401 was a serious drug offense under the ACCA. See United States v. Villanueva, 821 F.3d 1226, 1239–40 (10th Cir. 2016); United States v. McMahon, 91 F.3d 1394, 1397–98 (10th Cir. 1996). In neither case, nor in any other published or unpublished decision of this court, did we address a claim that § 2-401 could not be a serious drug offense because some Oklahoma controlled dangerous substances are not controlled substances under federal law. Those opinions are therefore not in point. See Lowe v. Raemisch, 864 F.3d 1205, 1209 (10th Cir. 2017) (“If an issue is not argued, . . . the decision does not constitute a precedent to be followed.” (internal quotation marks omitted)).
The government also attacks plainness on a ground other than divisibility, arguing that § 2–401(A)(1) did not clearly fail under the categorical approach because the Fifth Circuit has held that the realistic-probability test would apply to that very statute. See Aplee. Br. at 32 (“Similarly, Mr. Cantu cannot establish plain error as to the issue of the application of the realistic probability test in determining whether
Thus, the error was plain. Because Defendant‘s sentence exceeded the statutory maximum, he has presumptively satisfied the remaining elements of plain error. Seе Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907–09 (2018) (sentencing-guidelines error that satisfies first three prongs of plain-error review will ordinarily satisfy fourth prong); Faulkner, 950 F.3d at 673 n.3 (noting “the now well-established principle that a plain error leading to the adoption of an incorrect, higher Guidelines range will ordinarily satisfy plain error review‘s third and fourth prongs“). And the government has not suggested any reason why this case should not be encompassed by the general rule.
IV. CONCLUSION
We VACATE the sentence imposed by the district court and REMAND for resentencing.
19-6043, United States v. Cantu
HARTZ, J., Circuit Judge, concurring
I write separately to note two issues that this court may need to resolve in future cases that concern whether a prior conviction is a conviction for a violent felony or a serious drug offense under the ACCA.
First, this court has been inconsistent about whether we apply the categorical approach based оn the version of the state statutory offense in effect at the time of commission of the offense or at the time of conviction. Compare United States v. Titties, 852 F.3d 1257, 1262 n.2 (10th Cir. 2017) (“[W]e focus on the [state] law as it applied to Mr. Tittle when he committed the offense.“), with United States v. Degeare, 884 F.3d 1241, 1255 n.7 (10th Cir. 2018) (recognizing the relevant state law as that existing at the time of the defendant‘s state conviction). The timing issue can be subtle. As I understand the ACCA and Supreme Court authority, the comparison that must be made is between what the defendant could have been convicted of at the time of the commission of the predicate state offense and what constitutes a federal drug offense at the time of the federal offense. Two examples may clarify the matter. Say, at the time of the state conviction substance A was a state controlled substanсe but has never been a federal controlled substance. A quick look might lead to the conclusion that under the categorical approach the state conviction was not for a serious drug offense under the ACCA. But what if substance A had been added as a state controlled substance only a short time before the conviction and was not a state controlled substance when the defendant committed the state offense? In that circumstance, under ex post facto doctrine the defendant could not have been convicted of an offense involving substance A, so it would seem that the offense of which the defendant was convicted would have to have been a serious drug offense. Or, say that at the time of the state offense, substance A was a state controlled substance but not a federal controlled substance, yet substance A was a federal controlled substance by the time of the defendant‘s federal offense. Then the defendant was on notice when he committed his federal crime that he had a serious drug
The second issue is whether plain-error review is fully applicable when the alleged error would make the sentence illegal. This court has applied traditional plain-error analysis in that context. See United States v. Gonzales, 558 F.3d 1193, 1198–1200 (10th Cir. 2009) (error was not clear), abrogation on other grounds recognized by United States v. Snyder, 871 F.3d 1122, 1130 n.4 (10th Cir. 2017); United States v. Cernobyl, 255 F.3d 1215, 1220 (10th Cir. 2001) (Apprendi error); United States v. Keeling, 235 F.3d 533, 539 (10th Cir. 2000) (Apprendi error but sentence affirmed because of failure to establish fourth prong).
But some opinions by this court have suggested that we should always reverse when there has been an unpreserved error resulting in an illegal sentence, without the necessity of considering the second, third, or fourth prongs of plain-error review. See Titties, 852 F.3d at 1275, following United States v. Gonzalez-Huerta, 403 F.3d 727, 739 n.10 (10th Cir. 2005) (en banc), following United States v. Smith, 156 F.3d 1046, 1057 (10th Cir. 1998), following United States v. Wainwright, 938 F.2d 1096, 1098 (10th Cir. 1991), following United States v. Vance, 868 F.2d 1167, 1169 (10th Cir. 1989) (stating that “the imposition of an illegal sentence would constitute plain error“). (It should be pointed out, however, that in several opinions the court has conducted traditional plain-error analysis even while also invoking cases suggesting that we always reverse when there has been an illegal sentence. See, e.g., United States v. Mendenhall, 945 F.3d 1264, 1267–70 (10th Cir. 2019); Titties, 852 F.3d at 1272 n.19; United States v. Moyer, 282 F.3d 1311, 1317–20 (10th Cir. 2002).)
This circuit‘s special rule originated in our opinion in Vanсe, which predated the Supreme Court‘s decision in United States v. Olano, 507 U.S. 725, 733–37 (1993), where the Supreme Court first set forth the four elements of plain-error review. Since Olano the Supreme Court has repeatedly insisted that unpreserved error can be grounds for reversal only if the four-prong test is satisfied,1 unless the error was structural or jurisdictional.2 Perhaps all
Notes
[Any person who violates the provisions of § 2–401(A) with respect to] [a] substance classified in Schedule I or II which is a narcotic drug, lysergic acid diethylamide (LSD), gamma butyrolactone, gamma hydroxyvalerate, gamma valerolactone, 1,4 butanediol, or gamma-hydroxybutyric acid as defined in Sections 2–204 and 2–208 of this title, upon conviction, shall be guilty of a felony and shall be sentenced to a term of imprisonment for not less than five (5) years nor more than life and a fine of not more than One Hundred Thousand Dollars ($100,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. Any sentence to the custody of the Department of Corrections shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation except when the conviction is for a first offense[.]
[Any person who violates the provisions of § 2–401(A) with respect to] [a]ny other controlled dangerous substance classified in Schedule I, II, III, or IV, upon conviction, shall be guilty of a felony and shall be sentenced to a term of imprisonment for not less than two (2) years nor more than life and a fine of not more than Twenty Thousand Dollars ($20,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. Any sentence to the custody of the Department of Corrections shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation except when the conviction is for a first offense[.]
[Any person who violates the provisions of § 2–401(A) with respect to] [a] substance classified in Schedule V, upon conviction, shall be guilty of a felony and shall be sentenced to a term of imprisonment for not more than five (5) years and a fine of not more than One Thousand Dollars ($1,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment[.]