United States v. Titley, No. 13–6245.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtMATHESON
Citation770 F.3d 1357
PartiesUNITED STATES of America, Plaintiff–Appellee, v. John Ervin TITLEY, Defendant–Appellant.
Decision Date04 November 2014
Docket NumberNo. 13–6245.

770 F.3d 1357

UNITED STATES of America, Plaintiff–Appellee,
John Ervin TITLEY, Defendant–Appellant.

No. 13–6245.

United States Court of Appeals,
Tenth Circuit.

Nov. 4, 2014.

[770 F.3d 1358]

William P. Early, Assistant Federal Public Defender, Office of the Federal Public Defender for the Western District of Oklahoma, Oklahoma City, OK, appearing for Defendant–Appellant.

Steven W. Creager, Special Assistant United States Attorney (Sanford C. Coats, United States Attorney and Ashley L. Altshuler, Assistant United States Attorney, with him on the brief), Office of the United States Attorney for the Western District of Oklahoma, Oklahoma City, OK, appearing for Plaintiff–Appellee.

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.

MATHESON, Circuit Judge.

The Armed Career Criminal Act (“ACCA”) requires a minimum mandatory 15–year sentence for a defendant who has (1) been convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) and (2) previously been convicted at least three times in state or federal court of a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1).

This case concerns an equal protection challenge to the provision in the ACCA that defines a “serious drug offense” to include a state crime for “manufacturing, distributing, or possessing with intent to distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A).

Defendant John Ervin Titley pled guilty to being a felon in possession under § 922(g). The district court based Mr. Titley's 15–year ACCA sentence on his previous three state felony convictions. Mr. Titley agrees his conviction for armed robbery in Missouri qualifies as a “violent felony” under the ACCA. Although his convictions for possession of marijuana with intent to distribute in Arkansas and unlawful possession of marijuana with intent to distribute in Oklahoma otherwise qualify for the ACCA enhancement, he

[770 F.3d 1359]

argues these crimes should not count because they would not be “serious drug offense[s]” had he committed them in 19 other states or the District of Columbia.

At his sentencing, Mr. Titley argued the ACCA's partial reliance on state law in § 924(e)(2)(A) to define a “serious drug offense” violates Fifth Amendment equal protection.1 The district court rejected this argument. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and reviewing the issue de novo, see United States v. Phelps, 17 F.3d 1334, 1337 (10th Cir.1994), we affirm.2

A. Rational Basis Review

The parties agree we should apply rational basis review to the equal protection claim.3 We therefore address whether the challenged ACCA provision is rationally related to a legitimate government purpose. See Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981); City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

Under rational basis review, the law in question “is accorded a strong presumption of validity.” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). We must deny the challenge “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. (citations omitted). “The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective.” McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). “The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Heller, 509 U.S. at 320, 113 S.Ct. 2637.

B. Legitimate Government Purpose

The ACCA's purpose is to incapacitate repeat offenders who possess a firearm in violation of § 922(g) and to deter others from criminal conduct that could lead to an ACCA sentence. See

[770 F.3d 1360]

Taylor v. United States, 495 U.S. 575, 581, 587–88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Supreme Court recognized this purpose in a case about the ACCA provision at issue here—§ 924(e)(2)(A)—defining “serious drug offense” under state law. United States v. Rodriquez, 553 U.S. 377, 385, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008). Mr. Titley has not challenged the legitimacy of this purpose.

C. Rational Relationship

We focus on whether the means Congress chose to determine whether a state drug offense counts toward an ACCA sentence are rationally related to achieve the ACCA's purpose.

1. Means to Achieve Purpose

The first step is to identify the means, which are the two criteria in the statute. First, the state conviction must be for drug manufacturing or distribution—“manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance.” 18 U.S.C. § 924(e)(2)(A). A simple drug possession offense does not qualify. Second, the maximum prison sentence for the offense must be at least ten years. See id. If a state drug offense meets these criteria, it qualifies as a “serious drug offense” under the ACCA.4

2. Rational Relationship between Means and Purpose

The next step is to determine whether these means are rationally related to incapacitating and deterring repeat offenders. By limiting the definition of “serious drug offense” to manufacturing and distribution drug crimes, Congress restricted ACCA sentences to defendants previously convicted of more serious offenses than simple drug possession. By further limiting “serious drug offense” to crimes imposing a maximum prison sentence of at least ten years, Congress ensured that only felony drug manufacturing and distribution offenses with potentially lengthy sentences would qualify. Congress appears to have chosen means that are rationally related to incapacitating and deterring habitual criminals.

a. Precedent

The Supreme Court has said as much: “Congress presumably thought— not without reason—that if state lawmakers provide that a crime is punishable by 10 years' imprisonment, the lawmakers must regard the crime as ‘serious,’ and Congress chose to defer to the state lawmakers' judgment.” Rodriquez, 553 U.S. at 388, 128 S.Ct. 1783 (emphasis added).

Our decision in United States v. Phelps, 17 F.3d 1334 (10th Cir.1994), further supports a rational basis for § 924(e)(2)(A). Mr. Phelps received an ACCA sentence based on three state convictions meeting the ACCA's definition of “violent felony.” See18 U.S.C. § 924(e)(2)(B). He pointed to the ACCA provision exempting from “violent felony” status those crimes “for which a person has been pardoned or has had civil rights restored.” 18 U.S.C. § 921(a)(20). He argued this exemption discriminated against him and others convicted of a § 922(g) offense who had committed their ACCA-qualifying violent felonies in states without restoration statutes. We applied rational basis review and rejected his equal protection challenge.

We also find support for a rational basis here from our decision in United States v. McKissick, 204 F.3d 1282 (10th Cir.2000), a prosecution of defendants McKissick and

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Zeigler for drug and gun offenses. When the latter was 17 years old, he was charged in Oklahoma state court as an adult and convicted of two drug offenses. The district court in McKissick relied on these two prior Oklahoma drug convictions to add three criminal history points each under U.S.S.G. § 4A1.2(d)5 and to enhance Mr. Zeigler's sentence to life imprisonment under 21 U.S.C. § 841(b)(1)(A).6 He claimed this violated equal protection, arguing “he was treated differently than similarly situated persons because” states differ as to what age and what crimes persons under 18 can be prosecuted as adults. Id. at 1301.

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