UNITED STATES OF AMERICA, Plаintiff - Appellee, v. JARED ROBERT FAULKNER, Defendant - Appellant.
No. 18-7066
United States Court of Appeals for the Tenth Circuit
December 24, 2019
PUBLISH
Linda A. Epperley, Assistant United States Attorney (Brian J. Kuester, United States Attorney, and Gregory Dean Burris, Assistant United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff – Appellee.
Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
Following his conviction of being a felon in possession of a firearm, Jared Faulkner failed to object to the Prеsentence Investigation Report‘s (“PSR“)
On appeal, Mr. Faulkner asserts the district court plainly erred by finding that his prior conviction qualified as a “controlled substance offense” as that term is defined by the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines“).
Exercising jurisdiction pursuant to
I. BACKGROUND
At the conclusion of a two-day trial, a jury convicted Mr. Faulkner on one count of being a felon in possession of a firearm in violation of
II. ANALYSIS
Under
A. Whether the District Court Erred
Prior to his current offense, Mr. Faulkner was convicted in Oklahoma state court of endeavoring to manufacture methamphetamine in violation of
Section 2K2.1(a)(4)(A) of the Guidelines directs a sentencing court to apply a base offense level of 20 if “the defendant committed any pаrt of the instant offense subsequent to sustaining one felony conviction of . . . a controlled substance offense.” The Guidelines define “controlled substance offense” as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.”
Application Note 1 to
Rather, “[w]e apply a categorical/modified categorical analysis to determine whether [a defendant‘s] prior . . . conviction qualifies as a ‘controlled substance offense’ under
The categorical approach “requires application of both federal . . . and state law.” United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017). “[S]tate law defines the substantive elements of the crime of conviction.” Id. By contrast, federal courts are tasked with ascertaining the “generic, contemporary meaning” of
Because we are confronted with a disjunctively phrased statute, we begin by analyzing whether the modified categorical approach is appropriate. See United States v. Abeyta, 877 F.3d 935, 940 (10th Cir. 2017) (“In applying the categorical approach, a court must determine whether the modified categorical approach is appropriate.“). We aрply the modified categorical approach when the state statute is divisible—“i.e., if it contains more than one crime.” United States v. Degeare, 884 F.3d 1241, 1246 (10th Cir. 2018) (internal quotation marks omitted). Under the modified categorical approach, we compare the elements of the defendant‘s precise crime of conviction to the Guidelines’ definition and disregard the alternatives enumerated in the statute. See United States v. Titties, 852 F.3d 1257, 1266 (10th Cir. 2017).
But a statute is divisible and therefore subject to the modified approach only if it lists elements, rather than means, in the alternative. Id. at 1267. Thus, our first task is “to determine whether its listed items are elements or means.” Abeyta, 877 F.3d at 941 (quoting Mathis v. United States, 136 S. Ct. 2243, 2256 (2016)). “‘Elements’ are the ‘constituent parts’ of a crime‘s legal definition—the things the ‘prosecution must prove to sustain a conviction.‘” Mathis, 136 S. Ct. at 2248 (quoting Black‘s Law Dictionary 634 (10th ed. 2014)). “The means, however, ‘are mere real-world things—extraneous to the crime‘s legal requirements.‘” Abeyta, 877 F.3d at 941 (quoting
Relying primarily on the statutory text,5 the government asserts that
The parties apparently agree that of the offenses listed in Application Note 1 to
Mr. Faulkner‘s principal argument is that a conviction for endeavoring to manufacture methamphetamine can be sustained on much more incipient acts than those required to convict for generic attempt. We first review Oklahoma law to define the elеments of endeavoring before describing the elements of generic attempt.
1. The Elements of Oklahoma‘s Endeavoring Statute
Under
In Oklahoma, “when a jury must be instructed on a certain subject, the relevant uniform instruction ‘shall be used unless the [trial] court determines that it does not accurately state the law.‘” Flores v. State, 896 P.2d 558, 560 (Okla. Crim. App. 1995) (alteration in original) (quoting Fontenot v. State, 881 P.2d 69, 84 (Okla. Crim. App. 1994)). Thus, Oklahoma‘s uniform jury instructions are particularly useful in identifying the elements necessarily found by an Oklahoma jury to convict of endeavoring to manufacture a controlled dangerous substance. See United States v. Madkins, 866 F.3d 1136, 1146 (10th Cir. 2017) (relying on Kansas‘s pattern jury instructions to define an element of the state crime of conviction).
First, knowingly/intentionally;
Second, offering/soliciting/attempting/endeavoring/conspiring;
Third, to manufacture;
Fourth, the controlled dangerous substance of [Name of Substance].
Oklahoma Uniform Jury Instructions (“OUJI“), OUJI-CR 6-3B. Oklahoma‘s uniform jury instructions define endeavoring as “any effort to do or accomplish the evil purpose that the law was enacted to prevent.” OUJI-CR 6-16.
In sum, the Oklahoma crime of endeavoring to manufacture a controlled dangerous substance is complete when a defendant knowingly or intentionally exerts “any effort” to manufacture a controlled dangerous substance.
2. The Elements of Generic Attempt
Section 4B1.2(b) does not define attempt, and so we must formulate a generic definition by reference to “a wide range of sources . . . , including federal and state statutes, the Model Penal Code, dictionaries, and treatises.” United States v. Mendez, 924 F.3d 1122, 1125 (10th Cir. 2019) (quotation marks omitted).
Under federаl law, “attempt [generally] requires both (1) an intent to commit the substantive offense, and (2) the commission of an act which constitutes a substantial step towards commission of the substantive offense.” United States v. Gordon, 710 F.3d 1124, 1150 (10th Cir. 2013) (alteration in original) (internal quotation marks omitted). “A substantial step must be something more than mere
Under the Model Penal Code,
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: . . . purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
Model Penal Code § 5.01(1)(c). The Code goes on to explain that “[c]onduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor‘s criminal purpose.” Id. § 5.01(2). And the Code‘s explanatory note highlights the necessity of “distinguish[ing] between acts of preparation and a criminal attempt.” Id. § 5.01(1) cmt. to Subsection (1). Professor LaFave notes that “[t]he Model Penal Code‘s ‘substantial step’ language is to be found in the great majority of the attempt statutes in the modern recodifications.” 2 Wayne R. LaFave, Substantive Criminal Law § 11.4(e) (3d ed. 2017) (collecting twenty-three state attempt statutes incorporating the “substantial step” requirement). And “[e]ven in the absence of such a statute, the courts in several jurisdictions have adopted the Model Penal Code ‘substantial step’ approach.” Id.
First, the defendant(s) formed the specific intent to commit the crime of [Underlying Felony];
Second, the defendant(s)
. . . .
Performed a perpetrating act or acts toward committing the crimе of [Underlying Felony] but (such act(s) failed to constitute the commission of)/(defendant(s) was/were prevented from committing)/(defendant(s) was/were intercepted in the perpetration of) that crime.
OUJI-CR 2-11. Oklahoma‘s uniform jury instructions define a “perpetrating act” as:
[O]ne that would end in the commission of the crime the defendant(s) intended to commit, but for the intervention of circumstances independent of the will of the defendant(s). The requirement that the defendant(s) commit a perpetrating act must be distinguished from mere preparation to commit a crime. Preparation consists of devising or arranging the means or measures neсessary for the commission of a crime.
OUJI-CR 2-12.
With minor variations, each of these formulations of attempt consists of (1) the intent to commit the underlying crime, and (2) an actus reus (a “substantial step” under federal law and the Model Penal Code, and a “perpetrating act” under
3. The Categorical Analysis Between Endeavoring and Attempt
Mr. Faulkner argues that the actus reus required to convict under Oklahoma‘s endeavoring statute (“any effort to do or accomplish the evil purpose that the law was enacted to prevent“) encompasses more conduct than the generic definition of attempt, which excludes acts amounting to “mere preparation.”
Mr. Faulkner‘s argument is bolstered considerably by a decision of the Oklahoma Court of Criminal Appeals (the “OCCA“)8 rejecting a void-for-vagueness challenge to
As shown above, a conviction for attempt under Oklahoma law requires that the defendant commit a “perpetrating act.” OUJI-CR 2-11. And “a perpetrating act must be distinguished from mere preparation to commit a crime.” OUJI-CR 2-12. Thus, Tidmore held that an element required to convict for attempt—a perpetrating act, the functional equivalent of a substantial step—is absent from the elements of endeavoring.
In the face of this categorical mismatch, the government advances two arguments. First, the government points out that Application Note 1 to
Unlawfully pоssessing a listed chemical with intent to manufacture a controlled substance (
21 U.S.C. § 841(c)(1) ) is a “controlled substance offense.”Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (
21 U.S.C. § 843(a)(6) ) is a “controlled substance offense.”
Second, the government argues that “endeavoring necessarily implies the same intent and action inherent in an uncompleted attempt.” Aple. Br. at 11. In suppоrt, the government sets forth the definition of endeavor from Black‘s Law Dictionary,10 as well as several federal cases analyzing the meaning of endeavor. But none of those authorities defines the contours of “endeavoring” under Oklahoma law.11 See Harris, 844 F.3d at 1264 (“[S]tate law defines the substantive elements of the crime of conviction.“). Oklahoma‘s mandatory jury instructions and the OCCA‘s construction of “endeavoring” collectively supply the constituent elements of that crime. As a
Because Oklahoma‘s endeavoring statute sweeps more broadly than the generic definition of attempt, it was error for the district court to have regarded Mr. Faulkner‘s prior state conviction as a “controlled substance offense” for purposes of base offense level computation.
B. Whether the Error was Plain
An error is plain if it is “clear or obvious under current, well-settled law.” United States v. Brooks, 736 F.3d 921, 930 (10th Cir. 2013). “For an error to be plain and contrary to well-sеttled law, either this court or the Supreme Court must have addressed the issue.” United States v. Marquez, 898 F.3d 1036, 1051 (10th Cir. 2018). “The absence of . . . precedent [on point] will not, however, prevent a finding of plain error if the district court‘s interpretation was clearly erroneous.” United States v. Poe, 556 F.3d 1113, 1129 (10th Cir. 2009) (alterations in original) (quotation marks omitted).
Mr. Faulkner advances two main arguments in connection with the clear or obvious inquiry. First, he argues that the absence of “endeavoring” from the list of inchoate offenses in Application Note 1 to
And as noted above, the enumerated offenses in Application Note 1 are not exhaustive. As such, the absence of the word “endeavoring” from the commentary, without more, does nothing to establish the obviousness of the error. See Cornelio-Pena, 435 F.3d at 1284 (“[O]ffenses similar to aiding and abetting, conspiring, and attempting to commit offenses that otherwise meet the definition of ‘crime of violence’ are included in
Mr. Faulkner‘s argument that our precedent renders this issue well-settled is also unavailing. He articulates the “clear or obvious” analysis at too high a level of abstraction, asserting that our precedent forecloses “imposing a guideline enhancement for a controlled substance offense based on a prior conviction that is not within the definition in
As stated above, our opinion in Madkins held, applying de novo review, that a Kansas statute criminalizing possession with intent to sell controlled substances was broader than the Guidelines’ definition of a “controlled substance offense.” 866 F.3d at 1147–48. We examined the relevant pattern jury instruction and Kansas Supreme Court decisions to determine that the state statute criminalized mere offers to sell controlled substаnces. Id. at 1146. We concluded that “because a person can offer a controlled substance for sale without having the intent to actually complete the sale, a conviction for an offer to sell can be broader than the conviction for an attempt to sell.” Id. at 1147.
Consistent with that reasoning, we concluded in McKibbon that a conviction under a Colorado statute criminalizing “an offer” to sell a controlled substance similarly did not qualify under
But neither Madkins nor McKibbon establish clear or obvious error here. And neither this circuit nor the Supreme Court has held that endeavor reaches more broadly than attempt in a related statutory context. Without such a case, Mr. Faulkner cannot establish that the district court‘s error was clear or obvious. Therefore, it was not plain.
III. CONCLUSION
Although it was error to treat Mr. Faulkner‘s conviction for endeavoring to manufacture methamphetamine as a controlled substance offense for purposes of base offense level computation, that error was not plain or obvious. The district court is AFFIRMED.
HOLMES, J., concurring.
I respectfully concur in the result of the majority‘s well-written opinion; that is, I vote to affirm the district court‘s sentencing judgment. I specifically join only Part II.B, however. I see no need to reach the first prong of the plain-error test, which addresses the question of whether the district court actually erred. Rather, I am content to conclude, under the second prong of that test, that the district court did not plainly (i.e., clearly or obviously) err. Consequently, Mr. Faulkner cannot carry his burden under the plain-error test, and his sentencing challenge must fail. On that basis, I respectfully concur.