Oklahoma Drug Convictions Did Not Qualify as Serious Drug Offenses for ACCA Purposes

US v. Cantu, 2020 WL 3636331, Docket No. 19-6043 (10th Circuit July 6, 2020): On plain error review, the Tenth Circuit reverses Mr. Cantu’s sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). Defendant’s Oklahoma drug convictions did not qualify as serious drug offenses for purposes of the ACCA. His 2010 convictions under Okla. Stat. Ann. tit. 63, § 2-40(A)(1) (West 2011) did not qualify because at that time at least three substances covered by the statute were not covered under federal law. The Court rejected the government’s argument that the statute was divisible by drug and therefore the defendant’s convictions (which involved methamphetamine) were therefore serious drug offenses. The Court reviewed Oklahoma case law and concluded it is “impossible to say with certainty that the Oklahoma statute is divisible by individual drug.” Although Oklahoma divided drugs into three different categories, the drug involved in Defendant’s state prosecutions was in the same category as three Oklahoma controlled substances that were not controlled substances under federal law.

Oklahoma Lacks Jurisdiction to Prosecute Indians for Crimes that Occur in Indian Country, Including Much of Tulsa

In Sharp v. Murphy, Docket No. 17-1107, the Supreme Court affirmed the Tenth Circuit’s decision in Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), for the reasons stated in McGirt v. Oklahoma. In Murphy, the Tenth had held that the Creek reservation had not been disestablished and that the State of Oklahoma lacked jurisdiction to prosecute the petitioner for a murder that occurred on the reservation. The State of Oklahoma's death sentence is vacated.

McGirt v. Oklahoma, Docket No. 18-9526 (July 9, 2020): The Supreme Court in a 5-4 decision holds that Mr. McGirt’s state convictions should be vacated and he should be tried in federal court because he was an enrolled member of the Seminole Nation and his crimes occurred on the Creek Reservation. The Court agreed that land reserved for the Creek Nation in the 19th century is still Indian Country for purposes of the Major Crimes Act. It rejects all of the State’s contentions to the contrary, including the State’s argument that recognizing that much of northeastern Oklahoma is Indian Country could unsettle many prior convictions and make it difficult to prosecute in the future. The Court points out that Oklahoma can still prosecute cases involving non-Indian defendants and victims even in Indian Country, and many Native Americans may prefer to finish their state sentences than risk a federal prosecution and potentially harsher sentence.

Quotes I like: “In any event,” the Court observes, “the magnitude of a legal wrong is no reason to perpetrate it.” Slip opn. At 38. Later, it says, “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.” Slip opn. At 42.

The real world consequence is that the State of Oklahoma has no right to prosecute Indians for crimes committed in a portion of northeastern Oklahoma that includes most of Tulsa.

Court Affirms Upward Variance to 30 Years

United States v. Tommy Pena, Docket No. 19-2050 (10th Cir. June 24, 2016) (published): The Tenth affirms a huge upward sentencing variance.

Mr. Pena was convicted of a variety of crimes, including carjacking, felon in possession, and 18 USC 924(c). Under the 2010 guidelines, he was both ACCA and a career offender, and he was sentenced to 40 years in prison, based on the mandatory minimum sentence of 30 years for being a career offender under the guidelines and a consecutive 10-year sentence for the 924(c) conviction. Following the decision in Johnson v. U.S., 135 S.Ct. 2551 (2015), he filed a motion under 28 USC 2255, which was granted because Mr. Pena’s prior state conviction for shooting at an occupied building or dwelling was no longer a crime of violence or violent felony. Thus, at resentencing, Mr. Pena was no longer ACCA nor a career offender under the 2016 guidelines. The district court found that Mr. Pena's advisory guideline range was 63-78 months, which (after adding in the corrected minimum mandatory consecutive 60-month sentence for the 924(c) conviction) resulted in a total adjusted range of 123-168 months. The government wanted 30 years. The district court agreed. The Tenth affirms. This massive upward variance was both procedurally and substantively reasonable even though Mr. Pena never physically injured anyone and much of the conduct the sentencing court found to be awful was actually committed by his codefendant or was relatively minor prison misconduct.