United States v. Baker

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 29, 1998
• Docket: 97-5010
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 29 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. Nos. 97-5010 & 97-5011 (D.C. Nos. 96-CR-154-C TRACY ALAN BAKER, & 96-CR-18-C) Defendant-Appellant. (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The cases are therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. In each of these cases, defendant Tracy Alan Baker was convicted of one

count of possession of a firearm after former conviction of a felony, pursuant to

18 U.S.C. § 922(g). He was sentenced under the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e), to fifteen years on each count with the sentences to

run concurrently. The sentences were enhanced, pursuant to the ACCA, based on

three prior convictions: second degree burglary, shooting with intent to kill, and

unlawful cultivation of marijuana. He appeals the sentences, claiming that his

prior conviction for unlawful cultivation of marijuana does not qualify as a

“serious drug offense” as contemplated by § 924(e)(1) & (2)(A)(ii), and therefore

cannot be used to enhance his sentence. We affirm the sentences.

We review de novo a sentence enhancement under § 924. See United States

v. Lujan, 9 F.3d 890, 891 (10th Cir. 1993). Our review includes the entire record

and supporting documentation in order to ascertain whether the sentence imposed

is authorized. See id.

Defendant maintains that the federal sentencing court must examine the

facts underlying a state court conviction to determine whether it meets the criteria

of § 924(e)(1) & (2)(A)(ii) for sentence enhancement under the ACCA. He

asserts that he was convicted of the crime of unlawful cultivation of marijuana

based on his possession of one flowerpot containing three small marijuana plants.

-2- He argues that he was not guilty of a “serious drug offense” for the purpose of

enhancing his sentence under the ACCA.

We do not examine the underlying facts to determine whether the prior

conviction was for a “serious drug offense.” See Taylor v. United States, 495

U.S. 575, 600-02 (1990) (enhancement statute, § 924(e), requires federal

sentencing court to look only at statutory definition of prior offense and fact that

defendant was convicted); accord United States v. King, 979 F.2d 801, 802 (10th

Cir. 1992) (“For purposes of § 924(e), the courts do not inquire into the particular

factual circumstances surrounding the past offenses.”). Instead, we must evaluate

whether the relevant state statute meets the requirements of § 924(e)(2)(A)(ii).

See United States v. McMahon, 91 F.3d 1394, 1398 (10th Cir.), cert. denied, 117

S. Ct. 533 (1996).

The ACCA provides for an enhanced sentence for a person who violates

18 U.S.C. § 922(g) and has three previous convictions for “a violent felony or a

serious drug offense, or both.” 18 U.S.C. § 924(e)(1). A “‘serious drug offense’

means . . . an offense under State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance . . ., for

which a maximum term of imprisonment of ten years or more is prescribed by

law.” Id. § 924(e)(2)(A)(ii). The relevant Oklahoma state statute provides, “[i]t

shall be unlawful for any person to cultivate or produce, or to knowingly permit

-3- the cultivation, production, or wild growing of any species of such plants

[including marijuana]. . . .” Okla. Stat. tit. 63, § 2-509(B). A violation of that

provision is a felony punishable by a fine “and imprisonment in the State

Penitentiary for not less than two (2) years nor more than life.” Id. § 2-509(D).

We conclude that the elements of the Oklahoma statute under which

defendant was convicted satisfy the ACCA’s definition of “a serious drug

offense,” as set forth in § 924(e)(2)(A)(ii). Even though the Oklahoma statute

does not prohibit “manufacturing” marijuana, but rather prohibits “cultivation”

and “production,” this court has held that “manufacturing” includes “production”

and “cultivation.” See United States v. Wood, 57 F.3d 913, 918, 919 (10th Cir.

1995). The relevant Oklahoma statute also provides for a life term as the

maximum imprisonment, thus meeting the ACCA’s requirement that the maximum

term of imprisonment be ten years or more.

Defendant’s sentences are AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge

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