Appellate Case: 21-6111 Document: 010110773381 Date Filed: 11/23/2022 Page: 1
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 23, 2022
TENTH CIRCUIT Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 21-6111
( 5:20-CR-00175-D-1)
CORNELL WINSOR PITTS-GREEN,
(W.D. Okla.)
a/k/a Cornell Winsor Pitts, a/k/a
Cornell Winsor Green,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before McHUGH, BALDOCK, and MURPHY, Circuit Judges. **
Defendant Pitts-Green pled guilty to one count of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). Defendant’s presentence report
(PSR) concluded he was subject to an enhanced statutory sentencing range under 18
U.S.C. § 924(e)(1), the Armed Career Criminal Act (ACCA). As relevant here, the
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore submitted without oral argument.
Appellate Case: 21-6111 Document: 010110773381 Date Filed: 11/23/2022 Page: 2
ACCA applies when an individual convicted of violating § 922(g)(1) “has three
previous convictions . . . for a violent felony or serious drug offense, or both,
committed on occasions different from one another.” The PSR claimed Defendant
had three ACCA predicate offenses: (1) a 2000 Oklahoma state conviction for
possession of marijuana with intent to distribute, (2) a 2005 Oklahoma state
conviction for domestic assault and battery by strangulation, and (3) a 2006
Oklahoma state conviction for possession of unlawful drugs with intent to distribute.
The ACCA enhancement increased the statutory range on Defendant’s § 922(g)(1)
conviction from a maximum sentence of 10 years’ imprisonment to a minimum
sentence of 15 years’ imprisonment. 1 The district court applied the enhancement
over Defendant’s objection that his prior Oklahoma drug convictions (both for
violations of 63 Okla. Stat. § 2-401) did not qualify as predicate offenses under the
ACCA. The court sentenced Defendant to 188 months’ imprisonment, the low end
of the advisory guideline range, and Defendant appealed. We exercise jurisdiction
under 18 U.S.C. § 3742(a)(1), and remand to the district court with instructions to
vacate Defendant’s sentence and resentence him absent the ACCA enhancement.
We review de novo the question of whether Defendant’s prior state drug
1
While an enhanced statutory sentencing range may not affect the district
court’s advisory guideline range calculation, “[n]othing in the Guidelines relieves the
district court of its duty to correctly determine the statutory sentencing range”
because any sentence must fall within that range. United States v. Williams, 48 F.4th
1125, 1138 (10th Cir. 2022) (citing U.S.S.G. §§ 5G1.1-.2).
2
Appellate Case: 21-6111 Document: 010110773381 Date Filed: 11/23/2022 Page: 3
convictions qualify as “serious drug offense[s]” under the ACCA. United States v.
Williams, 48 F.4th 1125, 1137 (10th Cir. 2022). According to Defendant, neither of
his prior Oklahoma convictions for distributing a controlled substance constitute a
“serious drug offense” as defined in 18 U.S.C. § 924(e)(2)(A)(ii). That subsection
of § 924 defines such offense in relevant part as “an offense under State law,
involving . . . distributing, or possessing with intent to . . . distribute, a controlled
substance (as defined in section 102 of the Controlled Substances Act [CSA]
(21 U.S.C. [§] 802)).” Defendant argues the ACCA does not apply to his prior
Oklahoma state drug convictions because the state statute under which he was
convicted, 63 Okla. Stat. § 2-401, covered hemp, and hemp was not a federally
controlled substance at the time of his federal offense. In other words, the state
statute under which Defendant was convicted in 2000 and 2006 was categorically
overbroad, covering hemp, a substance not presently set forth in the federal
CSA. 2 The Government counters with the observation that hemp was a federally
controlled substance at the time of his state convictions and so the state statute is not
overbroad. Therefore, the question is whether a district court, in deciding whether a
prior state conviction is a “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii),
must look to (1) the federal drug schedule in effect at the time of the prior state
2
Under the categorical approach mandated by the Supreme Court, a non-
divisible state drug statute that includes non-federally controlled substances is
overbroad and not categorically a “serious drug offense.” United States v. Cantu,
964 F.3d 924, 934 (10th Cir. 2020).
3
Appellate Case: 21-6111 Document: 010110773381 Date Filed: 11/23/2022 Page: 4
conviction, or (2) the federal drug schedule at the time of the instant federal offense. 3
We need not delay the outcome here. Our recent decision in Willliams dictates
that we look to the federal drug schedule in effect at the time of the instant federal
offense to decide whether a prior state conviction constitutes a “serious drug
offense” as that phrase is used in the ACCA. Specifically, Williams held that “to
determine whether a prior drug offense is categorically overbroad because it is not
limited to federally controlled substances, the court must look to the current federal
definition of ‘controlled substance’—i.e., the definition in effect at the time of the
instant federal offense, not at the time of the prior state offense.” 48 F.4th at 1133.
In other words, “a defendant’s prior state conviction is not categorically a ‘serious
drug offense’ under the ACCA if the prior offense included substances not federally
controlled at the time of the instant federal offense.” Id. at 1138.
Accordingly, this case is remanded to the district court with instructions to
vacate Defendant’s sentence and resentence him consistent with our decision here
and in Williams.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
3
The federal definition of a controlled substance excluded hemp both when
Defendant illegally possessed a firearm and at the time he was sentenced in this case.
Thus, this appeal does not require us to decide whether the district court looks
specifically to the federal definition at the time of the commission of the instant
offense or at the time of sentencing thereon. See Williams, 48 F.4th at 1133 n.3.
4