United States v. Pitts-Green

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 23, 2022
• Docket: 21-6111
• Status: Unpublished

Opinion

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* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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).

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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.