United States v. Cantu

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 6, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-6043

FRANCISCO CANTU, JR.,

Defendant - Appellant.
_________________________________

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 Plaintiff-Appellee.
_________________________________

Before HARTZ, MURPHY, and MATHESON, Circuit Judges.
_________________________________

HARTZ, Circuit Judge.
_________________________________

Defendant Francisco Cantu, Jr. appeals the enhancement of his sentence under the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). Although he failed to

preserve his challenge to the enhancement in district court, the enhancement was plainly
contrary to the law of this circuit. Exercising jurisdiction under 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291, we vacate his sentence and remand for resentencing.

The ACCA enhancement rested in part on the characterization of Defendant’s two

prior convictions for drug offenses under Okla. Stat. tit. 63, § 2–401(A)(1) as “serious

drug offenses.” But there are multiple means by which the Oklahoma statute can be

violated, and some of those means do not satisfy the ACCA definition of serious drug

offense. Under the categorical/modified-categorical approach established by the United

States Supreme Court for determining whether a state conviction can qualify as an ACCA

predicate conviction, the two state convictions therefore cannot be predicate convictions

supporting an ACCA enhancement.

After describing the proceedings against Defendant, we summarize the relevant

law under the 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

18 U.S.C. § 922(g). The presentence report (PSR) said that he was subject to an

enhancement under the ACCA based on three prior Oklahoma convictions: (1) unlawful

possession of a controlled drug with intent to distribute on August 21, 2008, (2)

distribution of methamphetamine on December 13, 2010, and (3) distribution of

methamphetamine on December 27, 2010. Defendant was convicted of the latter two

state offenses on March 6, 2012, after pleas of nolo contendere. During sentencing for

2
his federal offense he did not object to his PSR, nor did he file a sentencing

memorandum. The district court adopted the PSR and sentenced him to a prison term of

210 months, which was the bottom of the advisory sentencing guidelines range. Without

the ACCA enhancement his maximum prison term would have been 120 months. See 18

U.S.C. § 924(a)(2).

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.” 18 U.S.C. § 924(e)(1). Our concern in this appeal relates only to serious drug

offenses. 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 (as defined in section 102 of the Controlled

Substances Act (21 U.S.C. § 802)), for which a maximum term of imprisonment of ten

years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). The incorporated

definition of controlled substance is “a drug or other substance, or immediate precursor,

included in schedule I, II, III, IV, or V of part B of this subchapter [21 U.S.C §§ 811–

14].” 21 U.S.C. § 802(6).

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 and

serious drug offenses). There are two key features of this approach. First, the court looks

only to the elements of the state offense. The particular facts of the defendant’s prior

3
offense are irrelevant. All that counts is what the defendant had to do to be guilty of the

offense. See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). Second, it is not

enough that there is an overlap between the elements of the state offense and the

definition of serious drug offense. It is necessary that essentially any conduct that

satisfies the elements of the state offense also satisfy the definition of serious drug

offense. If one can commit the state offense by conduct that is not a serious drug offense,

then conviction of the state offense cannot be a predicate offense for the ACCA. See id.

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),” 8 U.S.C § 1227(a)(2)(B)(i). Mr. Mellouli had been convicted in Kansas of violating

a state law prohibiting possession of drug paraphernalia to store or conceal a substance

that was a controlled substance as defined by state law. See Mellouli, 135 S. Ct. at 1983.

The controlled substance involved in the offense was Adderall, which is also a controlled

substance under federal law. See id. at 1985. What mattered for purposes of the

categorical approach, however, was not the specific substance involved in Mellouli’s

offense but (1) the fact that the Kansas statute could be violated with any controlled

substance under Kansas law and (2) the Kansas statute of conviction “was not confined to

federally controlled substances,” because “Kansas’ schedules of controlled substances

included at least nine substances—e.g., salvia and jimson weed—not defined in § 802.”

Id. at 1988. The Court rejected the government’s argument that state drug offenses can

4
qualify as serious drug offenses if the state schedules have a “substantial overlap” with

the federal schedules. Id. at 1990 (internal quotation marks omitted). “In short, the state

law under which [Mr. Mellouli] was charged categorically related to a controlled

substance, but was not limited to substances defined in § 802.” Id. at 1988 (original

brackets and internal quotation marks omitted). Thus, “[u]nder the categorical approach

. . . [Mr.] Mellouli’s drug-paraphernalia conviction d[id] not render him deportable.” Id.

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

5
committing some component of the offense—a jury need not 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 convictions 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.” Okla.

Stat. Ann. tit. 63, § 2–401(A)(1) (West 2011). Controlled dangerous substance is

defined by Oklahoma as “a drug, substance or immediate precursor in Schedules I

through V of the [Oklahoma] Uniform Controlled Dangerous Substances Act.” Id. § 2–

6
101(8). It is undisputed that in December 2010, when Defendant committed the two state

offenses at issue here, at least three substances (e.g., salvinorin A) that satisfied this

definition were not controlled substances under federal law. Compare Okla. Stat. Ann.

tit. 63, § 2–204(C) (West Supp. 2010), with 21 C.F.R. §§ 1308.11–15 (2019). Therefore,

under the categorical approach Defendant’s convictions under § 2–401(A)(1) were not

convictions for serious drug offenses under the ACCA. See Melllouli, 135 S. Ct. at 1988.

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 21 C.F.R. § 1308.12 (2019), Defendant’s state convictions

would be for serious drug offenses.

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 statute 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 one alternative term to the

exclusion of all others, that the statute contains a list of elements, each one of which goes

toward a separate crime.” Id. at 2257 (“Of course, such record materials will not in every

7
case speak plainly. . . .”). If, however, we cannot ultimately say with certainty that the

statute is divisible, we will not apply the modified-categorical approach. See Degeare,

884 F.3d at 1248 (“[U]nless we are certain that a statute’s alternatives are elements rather

than means, the statute isn’t divisible and we must eschew the modified categorical

approach.”).

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. Section 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 Okla. Stat. Ann. tit. 63, § 2–401(B)(1) (West 2011)

(punishing offenses involving Schedule I or II narcotic drugs, LSD, or one of five other

substances related to gamma hydroxybutyrate (GHB) with a “term of imprisonment for

not less than five (5) years nor more than life”); 1 id. § 2–401(B)(2) (punishing offenses

1
Paragraph (B)(1) stated:

8
involving any other Schedule I, II, III, or IV drug with a “term of imprisonment for not

less than two (2) years nor more than life”); 2 id. § 2–401(B)(3) (punishing offenses

involving Schedule V drugs with “a term of imprisonment for not more than five (5)

years”). 3

[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[.]
Okla. Stat. Ann. tit. 63, § 2–401(B)(1) (West 2011).
2
Paragraph (B)(2) stated:

[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[.]

Okla. Stat. Ann. tit. 63, § 2–401(B)(2) (West 2011).
3
Paragraph (B)(3) stated:

9
 In our view, Oklahoma case law makes it impossible to say with certainty that the

Oklahoma statute is divisible by individual drug. The leading opinion on the point is

Watkins v. State, 855 P.2d 141 (Okla. Crim. App. 1992). The defendant had been

convicted on one count of possession with intent to distribute cocaine and one count of

intent to distribute phencyclidine (PCP) based on his shipping both substances in a single

package. See id. at 141. The Oklahoma Court of Criminal Appeals (OCCA) determined

that the defendant had committed only one violation of § 2–401 and could not be

sentenced separately for two offenses. See id. at 142. It rejected the argument that there

were “two separate offenses with different elements requiring different ranges of

punishment”; “Possession with Intent to Distribute is a single offense under Section 2-

401. Part A of Section 2-401 sets forth the substantive offense while Part B sets forth the

parameters of punishment based on the type of drug involved.” Id. The court

acknowledged that “different punishment levels are provided for different drugs,” but

said that the State’s “argument does not take into consideration the statutory language of

Section 2–401(A)(1) which is the substantive criminal prohibition, i.e., it is unlawful for

any person to possess with the intent to distribute ‘a controlled dangerous substance.’”

Id. In short, “[t]he statutory prohibition does not distinguish between types or

[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[.]

Okla. Stat. Ann. tit. 63, § 2–401(B)(3) (West 2011).
10
classifications of drugs.” Id. It explained, “While we recognize the Oklahoma

Legislature has the power to create separate penal provisions prohibiting different acts

which may be committed at the same time, it was not exercised in the passage of the

provisions of Section 2–401(A)(1) as this statute applies to a ‘controlled dangerous

substance.’” Id. Because the “elements of each count . . . were the same,” double-

jeopardy doctrine prohibited the defendant’s multiple punishments for the same offense.

Id. at 142. The court’s language at the very least is potent support for the proposition that

the alternative ways in which the statutory violation can be committed (by distributing

any one of a number of controlled substances) are alternative means, rather than

alternative elements.

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 that 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,

11
403–04 (6th Cir. 2019) (en banc), cert. denied, 140 S. Ct. 90 (2019) (interpreting Ohio

law as treating felonious assault and aggravated assault as distinct crimes even though a

separate state statute prohibits punishment under both statutes for a “single act

undertaken with a single animus” as a matter of legislative intent because they are “allied

offenses of similar import” (internal quotation marks omitted)).

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.

12
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 substance 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 the 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

13
since “the Oklahoma Legislature failed to set out that possession of each separate drug

constitutes a separate offense and is punishable individually” and the “Legislature has

had a substantial amount of time to correct the drafting and by its silence has elected not

to do so”). We need add only that methamphetamine, the drug involved in Defendant’s

state prosecutions, is in the same category of drugs as three Oklahoma controlled

dangerous drugs that have not been controlled substances under federal law. (We express

no view on whether a defendant’s conviction would qualify as a conviction for a serious

drug offense under the ACCA if the sentence had been imposed under § 2–401(B)(1) or

(B)(3).)

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

4
Mathis speaks of examining the jury instructions as part of the record of conviction that
may be turned to when state-law sources do not provide clear answers on the issue of
divisibility. See 136 S. Ct. at 2256–57. This court has gone beyond that limited use and
has also analyzed a state’s uniform jury instructions as a potential source of state law
even when a defendant pleads guilty. See Titties, 852 F.3d at 1270 n.15, 1271 (“[W]here
the defendant pled guilty and no jury instructions were given, the state’s uniform jury
instructions can provide insight into the means/elements question.”).
14
 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)); Okla. Stat. Ann. tit. 12, § 577.2 (“Whenever Oklahoma Uniform Jury

Instructions (OUJI) contains an instruction applicable in a civil case or a criminal case,

giving due consideration to the facts and the prevailing law, and the court determines that

the jury should be instructed on the subject, the OUJI instructions shall be used unless the

court determines that it does not accurately state the law.”). But as the uniform

instruction is written, we think it does not confront the particular question of whether

multiple substances could be treated as alternative means in the third element. We note

that circuit courts have generally refused to treat such “singular” language in itself as

establishing that every alternative that could be placed in the template is an element of

the offense. See, e.g., Jimenez v. Sessions, 893 F.3d 704, 714 n.4 (10th Cir. 2018) (“[W]e

are not persuaded that Colorado’s pattern jury instructions shed much light on the

15
question before us. The first-degree-trespass instruction includes a space for courts to

insert the name of the ulterior offense . . . . But the pattern instruction does not tell us

whether a jury would have to reach a unanimous determination if multiple ulterior

offenses are at issue.”); Martinez, 893 F.3d at 1072 (“Whether means or element, the

identity of a controlled substance will be inserted to complete the [Missouri approved

jury] instructions when the charge involves a substance other than marijuana. But we

must look elsewhere to understand whether the name of the controlled substance

describes an element of the offense.”); Harbin v. Sessions, 860 F.3d 58, 68 (2d Cir. 2017)

(“Although the [New York pattern jury instructions] include a blank with the word

‘specify’ in it, allowing a judge to name the substances at issue in the case, the

instructions do not say it is impermissible to identify more than one substance. No rule

of law or language requires that the term ‘specify’ cover only one object.”). But cf.

Guillen v. U.S. Att’y Gen., 910 F.3d 1174, 1184 (11th Cir. 2018) (divisibility indicated by

jury instructions requiring entry of “(specific substance)” and state intermediate appellate

court’s citing instructions as setting out elements of the drug offense). Similarly, even if

we were to turn to the records of Defendant’s prior convictions, we would attach little

weight to the fact that the charging documents for Defendant’s two methamphetamine

convictions explicitly mention methamphetamine rather than just charging him with

distribution of a substance described in § 2–401(B)(2). The prosecution had no occasion

to consider how to charge the joint distribution of two substances.

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

16
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. Okla. Stat. Ann. tit. 63, § 2–401(B)(1) (West 2011). But we

fail to see how it is of any moment how Oklahoma decided to define any specific group

of drugs for purposes of punishment—whether in lockstep with the statutory schedules,

or by picking and choosing among the schedules. The important thing is that the separate

paragraphs of § 2–401(B) make § 2–401(A)(1) divisible into groups based on the penalty

imposed because of the Supreme Court’s decision in Apprendi, but any further

divisibility would be inconsistent with the OCCA’s decision in Watkins.

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 Okla. Stat.

Ann. tit. 63, § 2–701 (West 2011). We acknowledge that if there were a unique

punishment under § 2–701 for methamphetamine offenders, then methamphetamine

offenses would be divisible from the other offenses encompassed by the statute. But, as

the government admits, the registry is not part of the formal punishment for the

underlying offense. See Bivens v. State, 431 P.3d 985, 995 (Okla. Crim. App. 2018)

(“The requirements of the Oklahoma Methamphetamine Registry Act were not part of the

range of punishment for Appellant’s offense nor did any statutory provision permit a

judge or a jury to impose, delay, alter, or suspend registration and no provision within the

Oklahoma Methamphetamine Registry Act authorizes a sentencing judge or jury to

17
require or preclude compliance with the Act. . . . [T]he Oklahoma Methamphetamine

Registry Act is a regulatory scheme that is entirely separate and distinct from the

applicable punishment range.”). Accordingly, the registry act is irrelevant to our

divisibility analysis.

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 theoretical 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

18
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”

19
under the ACCA. The enhancement of Defendant’s sentence under the ACCA was

therefore error. 5

C. Plain Error

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 and 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 case from

this court specifically addressing § 2–401(A)(1) made the issue debatable. See Titties,

5
Having found error on this basis, we do not address Defendant’s alternative argument
for reversal.
20
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 because 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)).

21
 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 a statute is

categorically a serious drug offense. Neither this Court nor the Supreme Court has

addressed this issue, and, as the Fifth Circuit noted in Vazquez [v. Sessions, 885 F.3d 862,

872–74 (5th Cir. 2018),] the law on this issue is not well-settled.”). But whatever another

circuit has to say about the realistic-probability test does not make the law in this circuit

any less clear. As discussed above, this court does not apply the realistic-probability test

when the statute on its face clearly proscribes the relevant conduct.

Thus, the error was plain. Because Defendant’s sentence exceeded the statutory

maximum, he has presumptively satisfied the remaining elements of plain error. See

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.

22
 IV. CONCLUSION

We VACATE the sentence imposed by the district court and REMAND for

resentencing.

23
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 on 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 substance 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

offense on his record, and I would think that the state offense would be a proper predicate

serious drug offense under the ACCA. The panel opinion does not address these

possibilities because there is no dispute that at all relevant times Oklahoma law included

three substances as controlled dangerous substances which were not controlled

substances under federal law.

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

2
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 Vance, 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

1
See United States v. Marcus, 560 U.S. 258, 262–67 (2010) (failure to instruct jury that
it could convict defendant only if he had engaged in prohibited conduct after effective
date of statute); Puckett v. United States, 556 U.S. 129, 134–43 (2009) (government’s
failure to meet its obligations under plea agreement); United States v. Dominguez Benitez,
542 U.S. 74, 80–85 (2004) (failure by district court to give a warning required by Federal
Rule of Criminal Procedure 11); United States v. Cotton, 535 U.S. 625, 629–31, 633
(2002) (failure of indictment to allege element of the offense); United States v. Vonn, 535
U.S. 55, 60–74 (2002) (trial judge’s failure to advise represented defendant that he had
right to counsel if he went to trial); Jones v. United States, 527 U.S. 373, 388–89 (1999)
(rejecting argument that Federal Death Penalty Act created exception to requirement that
defendant show that failure to give instruction was plain error); Johnson v. United States,
520 U.S. 461, 465–67 (1997) (failure to instruct jury on element of offense).

3
jurisdictional. 2 Perhaps all our decisions applying the circuit’s special rule would have

reached the same result under traditional plain-error analysis. But maintaining a special

rule for sentencing error may no longer be tenable. See United States v. Zangari, 677

F.3d 86, 95 (2d Cir. 2012) (criticizing this court’s failure to conduct four-prong plain-

error analysis of sentencing error). If a case arises in which our special rule would make

a difference, this court may wish to consider the matter en banc.

2
See Marcus, 560 U. S. at 263 (noting possibility that structural errors may
automatically satisfy third prong of plain-error review); Nguyen v. United States, 539
U.S. 69 (2003) (invalidating judgment of court-of-appeals panel that included non-Article
III judge, without assessing plain error); Cotton, 535 U.S. at 630 (“[D]efects in subject-
matter jurisdiction require correction regardless of whether the error was raised in district
court.”).
4