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 ...
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