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. 20-6001
                                                    (D.C. No. 5:19-CR-00006-R-1)
 CHARLES LEONARD LAWSON,                                    (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

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

      Charles Leonard Lawson 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 vacate the sentence

and remand for resentencing.




      *
        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 This order and judgment is not binding precedent,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.
                                       BACKGROUND

       Based on conduct that occurred in February 2018, Lawson pled guilty to one count

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

United States Probation Office prepared a presentence investigation report

(PSR), indicating that Lawson qualified for a sentencing enhancement under the ACCA

due to prior Oklahoma convictions for (1) using a vehicle to facilitate the discharge of a

firearm; (2) possessing a controlled dangerous substance (CDS) (in September 2001)

with intent to distribute; and (3) possessing a CDS (in June 2009) with intent to

distribute.

       Lawson objected to the use of 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, Lawson maintained, it was possible to be convicted of an Oklahoma

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

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”).



                                              2
          The district court overruled Lawson’s objection, stating that Salvia Divinorum and

Salvinorin A were not added to the Oklahoma drug schedules until after Lawson was

convicted of his CDS offenses. The district court then sentenced him to 15 years in

prison.

                                         DISCUSSION

          We review de novo whether Lawson’s 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).

          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

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

V.” 

(italics and internal quotation marks omitted).

          Likewise, the Oklahoma CDS statutes under which Lawson was convicted make it

unlawful for any person “[t]o distribute, dispense, transport with intent to distribute or

dispense, possess with intent to manufacture, distribute, or dispense, a [CDS].” Okla.

                                               3
Stat. tit. 63, § 2-401(A)(1) (effective July 1, 2001); see also 2001 Okla. Sess. Law Serv.

Ch. 437, §§ 31, 34 (West); 2005 Okla. Sess. Law Serv. Ch. 283, §§ 4, 5 (West).

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), and prescribes categories of punishment depending on the type

of CDS involved, see

November 1, 2008, Oklahoma added Salvia Divinorum and Salvinorin A

as Schedule I drugs in Okla. Stat. tit. 63, § 2–204(C). See 2008 Okla. Sess. Law Serv.

Ch. 332, §§ 1, 3 (West). But those drugs are not “controlled substances under federal

law,” 

; see 21 C.F.R. §§ 1308.11–.15 (2018).2 Thus, Lawson’s




       1
         Specifically, § 2-401 provides a sentence of five years to life for a conviction
involving “[a] substance classified in Schedule I or II which is a narcotic drug or
[LSD],” § 2-401(B)(1) (2001); two years to life for a conviction involving “[a]ny
other controlled dangerous substance classified in Schedule I, II, III, or IV,” § 2-
401(B)(2) (2001); and up to five years for a conviction involving “[a] substance
classified in Schedule V,” § 2-401(B)(3) (2001). Narcotic drugs include cocaine,
opium, ecgonine, and their chemically identical derivatives. See Okla. Stat. tit. 63,
§ 2-101(26) (2001).
       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); see United States v. Titties, 

,
1262 n.2 (10th Cir. 2017) (“[W]e focus on the [state] law as it applied to Mr. Tittle
when he committed the offense.”); but see 

n.7 (stating in
dicta that divisibility is assessed as of the time of the state conviction). Regardless of
whether we look to Oklahoma law at the time of Lawson’s offense in June 2009 or
his conviction in June 2011, Salvia Divinorum and Salvinorin A were Schedule I
substances. See Okla. Stat. tit. 63, § 2-204(C)(23), (24) (2011).

                                             4
2009 offense of possession of a CDS with intent to distribute is broader than an ACCA

serious drug offense.3

       “Our inquiry, however, does not end just because the statute is overbroad.”

Johnson v. Barr, 

, 1107 (10th Cir. 2020). Instead, as the government

contends, “we must next consider whether the overbroad statute is divisible—that is,

whether it comprises multiple, alternative versions of the crime,”

state

statute has a divisible structure, “list[ing] elements in the alternative[ ] and thereby

defin[ing] multiple crimes,” we must apply a modified categorical approach. 

. “The modified categorical approach allows a court to examine a

limited category of court records, including the charging document, jury instructions, and

plea agreement, to determine which specific crime the defendant committed.” 

. We then apply “the categorical approach . . . separately to the relevant

sub-crime within the statute.” 

. According to the government,



       3
         For reasons that are unclear, Lawson “does not dispute” the government’s
erroneous position that Salvia Divinorum and Salvinorin A were not listed in Oklahoma’s
drug schedules when he committed his 2009 CDS offense. Aplt. Opening Br. at 9.
Instead, he substitutes two other controlled substances into his argument that his CDS
offenses are broader than an ACCA predicate offense. But “[w]e are not bound by a
litigant’s concession on an issue of law.” Nat’l Aeronautics & Space Admin. v. Nelson,

, 163 n.* (2011) (Scalia and Thomas, JJ., concurring in the judgment).
“When an issue or claim is properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather retains the independent power
to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin.
Services, Inc., 

, 99 (1991); see, e.g., U.S. Nat’l Bank v. Indep. Ins. Agents of
Am., Inc., 

, 448 (1993) (holding that “the Court of Appeals acted without
any impropriety in refusing to accept what in effect was a stipulation on a question of
law”). Accordingly, we decide this appeal using the two controlled substances Lawson
raised in the district court: Salvia Divinorum and Salvinorin A.
                                               5
that process reveals that Lawson’s 2009 offense involved marijuana, which is a federally

controlled substance.

      But it is clear that “courts may not apply the modified categorical approach when

the crime of which the defendant was convicted has a single, indivisible set of elements.”

Descamps v. United States, 

, 258 (2013). And in Cantu, this court held “that

§ 2–401(A)(1) is not divisible by individual drug.” 

. We are

bound by that decision.4

      Thus, Lawson’s 2009 crime of possessing a controlled substance with intent to

distribute is overbroad and cannot serve as an ACCA predicate. See

and remand for resentencing in accordance with this order and

judgment.


                                             Entered for the Court


                                             Jerome A. Holmes
                                             Circuit Judge




      4
         The Cantu panel stressed that “the drug involved in [Cantu’s] state
prosecutions[ ] [wa]s in the same category of drugs [§ 2–401(B)(2)] as three
Oklahoma controlled dangerous drugs that have not been controlled substances under
federal 

. Similarly, the drug involved in Lawson’s 2009
offense, marijuana, belongs in the same sentencing category as Salvia Divinorum and
Salvinorian A. See Okla. Stat. tit. 63, § 2–401(B)(2) (2009) (covering non-narcotic
drugs listed in Schedule I);

(including marijuana, Salvia
Divinorum, and Salvinorin A as Schedule I hallucinogenics).
                                            6