Background
Glen Delane Arnett, Jr., a convicted felon, was stopped by police in Oklahoma City. Officers found a loaded handgun with marijuana residue on it and approximately eight ounces of marijuana in his vehicle. Arnett admitted he was a felon. He was convicted of being a felon in possession of a firearm but acquitted of drug distribution charges. The district court enhanced his sentence by four points under the United States Sentencing Guidelines because it treated his simple marijuana possession as a felony under federal law due to his prior state drug convictions.
The court’s reasoning
The court analyzed whether the district court committed plain error by treating Arnett’s simple marijuana possession as a felony under Section eight hundred forty-four of Title twenty-one of the United States Code. The court agreed that the categorical approach likely applies to Section eight hundred forty-four subsection C, which defines a drug offense. However, the court found the error was not plain because two unpublished Tenth Circuit decisions, United States v. Shaw and United States v. Simmons, had previously held that the categorical approach does not apply to this statute. Since the law was not clearly established, the enhancement stood.
What it means going forward
Defendants challenging sentencing enhancements based on prior state convictions under Section eight hundred forty-four must now navigate the uncertainty of unpublished circuit precedent when arguing plain error, even if the statutory text suggests a different interpretive approach.