from the United States District Court for the Eastern
District of Oklahoma (D.C. No. 6:18-CR-00052-RAW-1)
L. Derryberry, Assistant Federal Public Defender (Julia L.
O'Connell, Federal Public Defender, and Robert S.
Williams, Assistant Federal Public Defender, with him on the
briefs), Tulsa, Oklahoma, for Defendant - Appellant.
A. Epperley, Assistant United States Attorney (Brian J.
Kuester, United States Attorney, and Gregory Dean Burris,
Assistant United States Attorney, with her on the brief),
Muskogee, Oklahoma, for Plaintiff - Appellee.
HOLMES, MATHESON, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
his conviction of being a felon in possession of a firearm,
Jared Faulkner failed to object to the Presentence
Investigation Report's ("PSR") conclusion that
his prior Oklahoma felony of endeavoring to manufacture
methamphetamine qualified as a predicate "controlled
substance offense" for purposes of base offense level
computation. As a result, the district court adopted the PSR
in full and sentenced Mr. Faulkner to a guidelines-range,
96-month term of imprisonment.
appeal, Mr. Faulkner asserts the district court plainly erred
by finding that his prior conviction qualified as a
"controlled substance offense" as that term is
defined by the United States Sentencing Guidelines
("U.S.S.G." or "Guidelines").
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a)(2), we affirm.
conclusion of a two-day trial, a jury convicted Mr. Faulkner
on one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). Mr. Faulkner's PSR
calculated his base offense level as 20, counting his prior
Oklahoma conviction for endeavoring to manufacture
methamphetamine as a "controlled substance
offense." ROA, vol. III, at 3. The PSR applied an
additional two-level enhancement because the subject firearm
had been reported stolen. Combining his total offense level
of 22 with his criminal history category of VI yielded an
advisory sentencing range of 84-105 months. The district
court adopted the PSR in full without objection and sentenced
Mr. Faulkner to a term of 96 months' imprisonment.
Federal Rule of Criminal Procedure 52(b), "[a] plain
error that affects substantial rights may be considered even
though it was not brought to the court's attention."
Because Mr. Faulkner raised no objection in the district
court, he can prevail on appeal "only if (1) an error
occurred; (2) the error was plain; (3) the error affected
[his] substantial rights; and (4) the error seriously
affected the fairness, integrity, or public reputation of a
judicial proceeding." United States v. Jereb,
882 F.3d 1325, 1335 (10th Cir. 2018) (quotation marks
omitted). At oral argument, the government conceded that
prongs three and four would be met if Mr. Faulkner could
establish the first two prongs. Thus, we analyze only whether the
district court committed error that was plain.
Whether the District Court Erred
to his current offense, Mr. Faulkner was convicted in
Oklahoma state court of endeavoring to manufacture
methamphetamine in violation of Okla. Stat. tit 63, §
2-408. Under that statute, "[a]ny person who offers,
solicits, attempts, endeavors, or conspires to commit any
offense defined in the Uniform Controlled Dangerous
Substances Act . . . shall be subject to the penalty
prescribed for the offense, the commission of which was the
object of the offer, solicitation, attempt, endeavor or
conspiracy." Okla. Stat. tit. 63, § 2-408.
2K2.1(a)(4)(A) of the Guidelines directs a sentencing court
to apply a base offense level of 20 if "the defendant
committed any part of the instant offense subsequent to
sustaining one felony conviction of . . . a controlled
substance offense." The Guidelines define
"controlled substance offense" as "an offense
under federal or state law, punishable by imprisonment for a
term exceeding one year, that prohibits the manufacture,
import, export, distribution, or dispensing of a controlled
substance . . . or the possession of a controlled substance .
. . with intent to manufacture, import, export, distribute,
or dispense." U.S.S.G. § 4B1.2(b).
Note 1 to § 4B1.2 clarifies that "'controlled
substance offense' include[s] the offenses of aiding and
abetting, conspiring, and attempting to commit such
offenses." § 4B1.2 cmt. n.1. And Application Note 2
to the Guidelines' general application principles
instructs that the Guidelines' use of "[t]he term
'includes' is not exhaustive." U.S.S.G. §
1B1.1 cmt. n.2. Relying on this principle, we have held that
"solicitation" is a crime of violence under §
2L1.2(b)(1)(A)(ii) notwithstanding the absence of that term
in an application note to § 2L1.2, a provision that is
indistinguishable from Note 1 to § 4B1.2. See United
States v. Cornelio-Pena, 435 F.3d 1279, 1284 (10th Cir.
2006) ("Thus, by using the term 'include' in the
application note, the Commission clearly expressed its intent
that the offenses listed in the note were not exhaustive, and
we do not apply expressio unius est exclusio
alterius."); see also United States v.
Shumate, 329 F.3d 1026, 1030 (9th Cir. 2003) (applying
the same analysis to conclude that solicitation offenses are
included in § 4B1.2). Thus, a state offense is not
removed from the ambit of the Guidelines' definition of
"controlled substance offense" merely because it
does not appear among the enumerated offenses.
"[w]e apply a categorical/modified categorical analysis
to determine whether [a defendant's] prior . . .
conviction qualifies as a 'controlled substance
offense' under U.S.S.G. § 4B1.2(b)." United
States v. McKibbon, 878 F.3d 967, 971 (10th Cir. 2017).
Under the categorical approach, "our focus is on the
elements of the statute of conviction and not [on] the
particular facts underlying that conviction."
Id. at 972 (alteration in original) (internal
quotation marks omitted). The state crime of conviction will
qualify as a controlled substance offense only if it
criminalizes no more conduct than the offenses listed in the
categorical approach "requires application of both
federal . . . and state law." United States v.
Harris, 844 F.3d 1260, 1264 (10th Cir. 2017).
"[S]tate law defines the substantive elements of the
crime of conviction." Id. By contrast, federal
courts are tasked with ascertaining the "generic,
contemporary meaning" of undefined offenses enumerated
in the Guidelines. See United States v. Rivera-Oros,
590 F.3d 1123, 1126 (10th Cir. 2009) (quoting Taylor v.
United States, 495 U.S. 575, 598 (1990)).
we are confronted with a disjunctively phrased statute, we
begin by analyzing whether the modified categorical approach
is appropriate. See United States v. Abeyta, 877
F.3d 935, 940 (10th Cir. 2017) ("In applying the
categorical approach, a court must determine whether the
modified categorical approach is
appropriate."). We apply the modified categorical
approach when the state statute is divisible-"i.e., if
it contains more than one crime." United States v.
Degeare, 884 F.3d 1241, 1246 (10th Cir. 2018) (internal
quotation marks omitted). Under the modified categorical
approach, we compare the elements of the defendant's
precise crime of conviction to the Guidelines' definition
and disregard the alternatives enumerated in the statute.
See United States v. Titties, 852 F.3d 1257, 1266
(10th Cir. 2017).
statute is divisible and therefore subject to the modified
approach only if it lists elements, rather than means, in the
alternative. Id. at 1267. Thus, our first task is
"to determine whether its listed items are elements or
means." Abeyta, 877 F.3d at 941 (quoting
Mathis v. United States, 136 S.Ct. 2243, 2256
(2016)). "'Elements' are the 'constituent
parts' of a crime's legal definition-the things the
'prosecution must prove to sustain a
conviction.'" Mathis, 136 S.Ct. at 2248
(quoting Black's Law Dictionary 634 (10th ed. 2014)).
"The means, however, 'are mere real-world things-
extraneous to the crime's legal requirements.'"
Abeyta, 877 F.3d at 941 (quoting Mathis,
136 S.Ct. at 2248). "There are three general tools
courts use to decide whether listed items in an alternatively
phrased criminal law are elements or means: (1) the statutory
text; (2) state court decisions; and (3) the record of the
prior conviction itself." Id.
primarily on the statutory text,  the government asserts that
Okla. Stat. tit. 63, § 2-408 is divisible; that
offering, soliciting, attempting, endeavoring, and conspiring
each constitute separate crimes. Mr. Faulkner offers no
response, presumably because the divisibility determination
does not affect his argument on appeal. Indeed, he argues
that the crime of conviction (endeavoring), and not the
purportedly divisible alternatives listed in § 2-408, is
broader than the Guidelines' definition of a controlled
substance offense-precisely the analysis conducted under the
modified categorical approach. In light of this posture, and
without more fulsome, adversarial briefing, we assume without
deciding that the statute is divisible and apply the modified
categorical approach, examining only whether Oklahoma's
crime of endeavoring to manufacture a controlled dangerous
substance sweeps more broadly than the inchoate offenses
enumerated in the Guidelines.
parties apparently agree that of the offenses listed in
Application Note 1 to § 4B1.2-"aiding and abetting,
conspiring, and attempting"-endeavoring's closest
analogue is "attempting." Thus, we must analyze
whether the Oklahoma crime of endeavoring is no broader than
the generic definition of attempt.
Faulkner's principal argument is that a conviction for
endeavoring to manufacture methamphetamine can be sustained
on much more incipient acts than those required to convict
for generic attempt. We first review Oklahoma law to define
the elements of endeavoring before describing the elements of
The Elements of Oklahoma's Endeavoring Statute
Okla. Stat. tit 63, § 2-408, "[a]ny person who
offers, solicits, attempts, endeavors, or conspires to commit
any offense defined in the Uniform Controlled Dangerous
Substances Act . . . shall be subject to the penalty
prescribed for the offense, the commission of which was ...