Remand for resentencing after district court erred in determining drug quantity; prior OK convictions were overbroad and not ACCA predicates

US v. Williams, --- F.4th ----, 2022 WL 4102823 (10th Cir. Sept. 8, 2022): The defendant wins on two sentencing arguments. Remanded for resentencing. Defendant pled guilty to one count of possession with intent to distribute methamphetamine and one count of being a felon in possession of a firearm. On appeal, he contended that 1) the district court clearly erred in calculating the drug quantity and the error was not harmless and 2) he was not ACCA-eligible because his prior Oklahoma convictions for distributing a controlled dangerous substance were not serious drug offenses under ACCA. The Tenth Circuit agreed. Background: San Bernardino, CA, is a “known source area of controlled substances” and when Mr. Williams in Oklahoma City received some packages from San Berdo and the sender/recipient names were not associated with the listed addresses, well, that was suspicious. After a couple of deliveries, Mr. Williams’ residence was searched and they found one package, one empty package, two scales, a heat sealer, a surveillance system, and a loaded revolver. (Side thought: given the ubiquity of Ring and similar systems, is having a surveillance system really suspicious?) Back to the story: The PSR calculated Mr. Williams’ drug quantity based on the seized package of methamphetamine actually found in the house, plus three more, estimating that those packages also contained meth. It declined to include 7 other packages allegedly sent to Williams. The government conceded that, at sentencing, it did not put on any evidence regarding those three packages, but it introduced evidence about 8 allegedly similar packages delivered from San Bernardino and a ninth package sent from Loma Linda, CA. Over Mr. Williams’ objection, the district court held him responsible for the quantity calculated in the PSR, resulting in a higher base offense level. Mr. Williams also objected to the ACCA determination, contending that his prior Oklahoma convictions were overbroad because they applied to hemp, which is not a federally controlled substance. The district court declined to consider the ACCA objection because it made no different to Mr. Williams’ guideline range. The district court decided Mr. Williams’ total offense level was 38 and his criminal history category was VI, resulting in a guideline range of 360 months to life. The court granted a downward variance and imposed concurrent sentences of 284 months on each count. Holdings: The Tenth Circuit held that the district court should not have relied on the three contested packages sent to his residence concerning which the government presented no evidence. The government contended that the evidence presented on the other packages was sufficient, but the Court declined to speculate on the sufficiency of this evidence and found that the government had failed to show harmless error, especially since the PSR had not included these packages in its calculations. It remanded for further findings on drug quantity. In a clearer victory, the Tenth Circuit agreed that Mr. Williams’ convictions from 1996, 1997 and 2003 were not ACCA predicates because the Oklahoma statute at that time covered hemp and hemp is not presently a controlled substance under federal law. “[W]e hold 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.”