FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                            FOR THE TENTH CIRCUIT                           September 21, 2020
                        _________________________________
                                                                           Christopher M. Wolpert
                                                                               Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 19-6173
                                                      (D.C. No. 5:19-CR-00093-R-1)
 MALCOLM ELBRAY TRAYWICKS,                                    (W.D. Okla.)
 JR.,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges.
                 _________________________________

       Malcolm Elbray Traywicks, Jr., appeals his enhanced sentence under the Armed

Career Criminal Act (ACCA) for being a felon in possession of a firearm. Exercising

jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291, we affirm.

                                      BACKGROUND

       Based on conduct that occurred in January 2018, Traywicks pled guilty to one

count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g).


       *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Ordinarily, a conviction for being a felon in possession of a firearm carries a maximum

sentence of ten years. 18 U.S.C. § 924(a)(2). But under the ACCA, if the defendant “has

three previous convictions . . . for a violent felony or a serious drug offense, or both,” a

mandatory minimum sentence of fifteen years applies. 18 U.S.C. § 924(e)(1).

       The United States Probation Office prepared a presentence investigation report

(PSR), indicating that Traywicks qualified for an ACCA sentencing enhancement

because of multiple prior Oklahoma convictions: (1) distributing and conspiring to

distribute a controlled dangerous substance (CDS) (in July and August 1990); (2)

possessing a CDS (in July 1991) with intent to distribute; (3) possessing a CDS (in

January 2002) with intent to distribute; and (4) possessing a CDS (in April 2002) with

intent to distribute.

       Traywicks objected to using his CDS convictions to support an ACCA enhanced

sentence. He complained, as relevant here, that Oklahoma’s drug schedules included two

controlled substances—Salvia Divinorum and Salvinorin A—not found on the federal

drug schedules. Thus, Traywicks maintained, it was possible to be convicted of an

Oklahoma CDS offense that would not be a predicate “serious drug offense” under the

ACCA, 18 U.S.C. § 924(e)(1). See Mathis v. United States, 

, 2251 (2016)

(stating that “a state crime cannot qualify as an ACCA predicate if its elements are

broader than those of a listed generic offense”).

       The district court overruled Traywicks’ objection, noting that Salvia Divinorum

and Salvinorin A were not added to the Oklahoma drug schedules until after Traywicks



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had committed his CDS offenses. The district court then sentenced him to 15 years in

prison.

                                         DISCUSSION

          We review de novo whether Traywicks’ CDS crimes qualify as predicate serious

drug offenses. United States v. Degeare, 

, 1245 (10th Cir. 2018). To make

that determination, “we generally begin with the categorical approach.” United States v.

Cantu, 

, 926 (10th Cir. 2020). Under that approach, we compare “the

elements of the state offense and the definition of serious drug offense” to see “[i]f one

can commit the state offense by conduct that is not a serious drug offense.”

(italics omitted). If so, and if the state statute is divisible, we apply the modified

categorical approach, examining various court documents “to determine which version of

the crime underlies the defendant’s conviction.” Johnson v. Barr, 

, 1107

(10th Cir. 2020). But if the elements of the state and federal offenses “are congruent,”

then the defendant’s prior conviction categorically qualifies as a predicate serious drug

offense and “there is no need to apply the modified categorical approach.” United States

v. Dominguez-Rodriguez, 

, 1195 (10th Cir. 2016).

          A serious drug offense is “an offense under State law, involving manufacturing,

distributing, or possessing with intent to manufacture or distribute, a controlled substance

(as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a

maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.

§ 924(e)(2)(A)(ii). “The incorporated definition of controlled substance is a drug or other



                                               3
substance, or immediate precursor, included in [federal drug] schedule I, II, III, IV, or

V.” 

(italics and internal quotation marks omitted).

       Likewise, the Oklahoma CDS statutes under which Traywicks was convicted

make it unlawful for any person “to distribute, dispense, . . . or possess with intent to

manufacture, distribute, or dispense, a controlled dangerous substance.” Okla. Stat. tit.

63, § 2-401(A)(1) (1990); see also

(“[I]t shall be unlawful for

any person . . . [t]o distribute, dispense, transport with intent to distribute or dispense,

possess with intent to manufacture, distribute, or dispense, a controlled dangerous

substance . . . .”). Oklahoma law defines a CDS as “a drug, substance or immediate

precursor in Schedules I through V of the [Oklahoma] Uniform Controlled Dangerous

Substances Act,” Okla. Stat. tit. 63, § 2-101(8) (1990), and prescribes categories of

punishment depending on the type of CDS involved, see

“does not dispute [that Salvia Divinorum and Salvinorin A] were not

listed on Oklahoma’s drug schedule at the time of his [1990, 1991, and 2002] offenses.”

Aplt. Opening Br. at 9. Indeed, those substances were not added as Schedule I drugs in

Okla. Stat. tit. 63, § 2-204(C), until November 1, 2008. See 2008 Okla. Sess. Law Serv.

Ch. 332, §§ 1, 3 (West). Thus, those substances cannot establish that Traywicks’ CDS

offenses are broader than a serious drug offense.

       Recognizing the timing problem, Traywicks argues “there were other substances

included on the [Oklahoma] schedule that are not on the federal schedule.” Aplt.

Opening Br. at 9. Specifically, he cites 4-methoxyamphetamine and cyclohexamine,

which were listed as Oklahoma Schedule I drugs at the time of his offenses. See Okla.

                                               4
Stat. tit. 63, § 2-204(C)(18), (19) (1990); see also

(2002).1 But,

as the government points out, those drugs are Schedule I federally controlled substances.

See 21 C.F.R. § 1308.11(d)(7) (2018) (4-methoxyamphetamine);

(2018).2 Although Traywicks is correct that those drugs are not

included in the federal schedules initially established in 1970, see 21 U.S.C. § 812,

Congress gave the Attorney General the power to revise the schedules, see

“are published in the Code of Federal Regulations, Part 1308 of Title 21,” 21

U.S.C. § 812(c) n.1.

       Traywicks acknowledges that 4-methoxyamphetamine and cyclohexamine are

indeed listed in the federal regulations. But he maintains that “Congress’s delegation of

authority to the Attorney General violates Article I, Section 1 of the United States

Constitution.” Aplt. Reply Br. at 4. This court has held to the contrary. See United

States v. Barron, 

, 1352 (10th Cir. 1979) (rejecting defendant’s “contention

that 21 U.S.C. §§ 811 and 812 are invalid because there has been an unconstitutional

delegation of authority by the Congress to the Attorney General”); see, e.g., Cantu,


       1
        The government argues that we should review for plain error whether
4-methoxyamphetamine and cyclohexamine render Traywicks’ CDS convictions
overbroad. Although Traywicks did not mention either of those two drugs at
sentencing, we need not decide whether plain-error review applies because we
discern no error, plain or otherwise, in the district court’s ACCA analysis. See
United States v. Sayad, 

, 1117 n.2 (10th Cir. 2009).
       2
       “[T]he comparison that must be made is between what the defendant could
have been convicted of at the time of the commission of the predicate state offense
and what constitutes a federal drug offense at the time of the federal offense.” 

(Hartz, J., concurring).

                                             

(consulting 21 C.F.R. §§ 1308.11–.15 to determine whether drugs were

controlled substances under federal law).

       Thus, Traywicks’ CDS convictions are ACCA predicates, as they are no broader

than a serious drug offense. See Descamps v. United States, 

, 257 (2013)

(“The prior [state] conviction qualifies as an ACCA predicate only if the statute’s

elements are the same as, or narrower than, those of the generic [federal] offense.”); cf.,

e.g., Martinez v. Att’y Gen., 

, 287 (3d Cir. 2018) (holding that alien’s New

Jersey controlled-substance offense rendered him removable under the categorical

approach where, among other things, “the federal and New Jersey lists of controlled

substances were identical”).

                                       CONCLUSION

       We affirm the district court’s sentence.


                                              Entered for the Court


                                              Jerome A. Holmes
                                              Circuit Judge




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