Summary
The Tenth Circuit affirmed Jared Faulkner’s sentence for being a felon in possession of a firearm. The court held that although the district court erred by treating Faulkner’s Oklahoma conviction for endeavoring to manufacture methamphetamine as a controlled substance offense under the Sentencing Guidelines, the error was not plain because existing precedent did not make the issue clear or obvious. The opinion applies categorical and modified categorical approaches to compare the Oklahoma offense with the generic definition of attempt.
Topics
Practice areas
Questions Presented
- Whether Faulkner's prior Oklahoma conviction for endeavoring to manufacture methamphetamine qualifies categorically as a controlled substance offense under U.S.S.G. § 4B1.2(b) and § 2K2.1.
- Whether any error in treating that conviction as a controlled substance offense was plain or obvious under Federal Rule of Criminal Procedure 52(b).
Holdings
- The Oklahoma offense of endeavoring to manufacture a controlled dangerous substance is broader than the generic definition of attempt because it may be completed by any effort to accomplish the unlawful purpose and does not require a substantial step or perpetrating act. It therefore does not categorically qualify as a controlled substance offense under U.S.S.G. § 4B1.2(b).
- The district court's erroneous treatment of Faulkner's prior conviction as a controlled substance offense was not plain or obvious under then-current, well-settled law; therefore, Faulkner could not satisfy plain-error review and the sentence was affirmed.
Key quotations
“Because Oklahoma’s endeavoring statute sweeps more broadly than the generic definition of attempt, it was error for the district court to have regarded Mr. Faulkner’s prior state conviction as a “controlled substance offense” for purposes of base offense level computation.” (14)
“Although it was error to treat Mr. Faulkner’s conviction for endeavoring to manufacture methamphetamine as a controlled substance offense for purposes of base offense level computation, that error was not plain or obvious. The district court is AFFIRMED.” (18)
Factual background
A jury convicted Faulkner of being a felon in possession of a firearm. His PSR treated his prior Oklahoma conviction for endeavoring to manufacture methamphetamine as a controlled substance offense and calculated an advisory Guidelines range of 84 to 105 months, including a stolen-firearm enhancement. The district court adopted the PSR and sentenced him to 96 months' imprisonment.
Procedural history
A jury convicted Faulkner of being a felon in possession of a firearm under 18 U.S.C. § 922(g). The district court adopted the Presentence Investigation Report without objection, calculated a base offense level of 20 based on Faulkner's prior Oklahoma endeavoring conviction, applied a stolen-firearm enhancement, and imposed a 96-month sentence. The Tenth Circuit held that the enhancement was erroneous because the Oklahoma offense was broader than generic attempt, but affirmed because the error was not plain or obvious.