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

                            FOR THE TENTH CIRCUIT                              May 29, 2020
                        _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 19-6100
                                                    (D.C. No. 5:18-CR-00221-R-1)
 WILLIAM CONAN THRASHER,                                    (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE and MATHESON, Circuit Judges.
                 _________________________________

      Defendant-Appellant William Conan Thrasher (Thrasher) pleaded guilty to one

count of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). At sentencing, the district court determined Thrasher had three prior

convictions which qualified as predicate offenses under the Armed Career Criminal

Act (ACCA). As a result, Thrasher was sentenced to 180 months, the statutory

mandatory minimum sentence. Thrasher appeals the district court’s ruling that his



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Oklahoma drug convictions qualify as serious drug offenses under the ACCA.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                            I

      Thrasher pleaded guilty, without a plea agreement, to being a felon in

possession of a firearm. ROA Vol. I at 5, 8. The Presentence Report (PSR) identified

both of Thrasher’s prior drug convictions under Oklahoma law as “qualifying

predicate offense[s] for the Armed Career Criminal designation pursuant to USSG

§ 4B1.4.” Id. Vol. II at 16, 18. 1 Thrasher objected to the use of the Oklahoma

convictions as qualifying predicate offenses. Id. at 35–36.

      A conviction under § 922(g) normally carries a statutory mandatory maximum

sentence of ten years. 18 U.S.C. § 924(a)(2). If, however, the defendant “has three

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

statutory mandatory minimum sentence of fifteen years applies. 18 U.S.C.

§ 924(e)(1). Pursuant to § 924(e)(2)(A)(ii), a “serious drug offense” is “an offense

under State law, involving manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance . . .” 18 U.S.C. § 924(e)(2)(A)(ii);

see also id. The Oklahoma statute under which Thrasher was convicted declares it

unlawful for any person to “distribute, dispense, transport with intent to distribute or

dispense, or solicit the use of or use the services of a person less than eighteen (18)

years of age to cultivate, distribute or dispense a controlled dangerous substance or


      1
        Thrasher also pleaded guilty to bank robbery, which no one disputes is a
predicate crime under the ACCA. ROA Vol. II at 20–22.
                                            2
possess with intent to manufacture, distribute, or dispense, a controlled dangerous

substance.” 63 Okla. Stat. § 2-401(A)(1) (1994); see also id. at 36.

       In the PSR prepared prior to Thrasher’s sentencing, the Probation Officer cited

United States v. McMahon, 91 F.3d 1394 (10th Cir. 1994) as holding that the

Oklahoma statute giving rise to Thrasher’s convictions is a “serious drug offense” for

purposes of the ACCA. Id. at 36. The Probation Officer also rejected Thrasher’s

arguments that a marijuana offense or small quantity offense did not qualify as a

“serious drug offense,” again citing McMahon, and finally stated: “[a]s explained [in

McMahon], the categorical approach applies, and thus all that can be considered is

whether the state statute fits the definition set forth in § 924(e)(2)(A)(ii). The

defendant’s actual conduct, whether set forth in police reports or otherwise, is

irrelevant to the ACCA determination.” Id.

       Thrasher detailed his objections in his sentencing memorandum, arguing first

that mandatory minimums are unconstitutional, that his prior drug convictions should

not qualify under the ACCA because of the age of the convictions and relevant

conduct involved, and finally that state convictions should not be counted at all

because to do so violates due process. Id. Vol. I at 14–18. At sentencing, Thrasher

reasserted his objections previously made in his sentencing memorandum. Id. Vol. III

at 15–19. The district court rejected his arguments:

       I am going to overrule the objections. I think the probation office has
       delineated my reasons as well as I could, but the statute clearly calls for
       a mandatory minimum and I’m bound by that statute and I know of no
       authority anywhere that suggests that that is unconstitutional or that the


                                            3
       use of prior drug convictions, even though they’re marijuana, is
       unconstitutional, so I will overrule those objections.

Id. Vol. III at 21.

       Thrasher raises a new argument on appeal. He argues that, when applying the

categorical approach, the Oklahoma statute is broader than the ACCA’s definition of

a serious drug offense, because it includes a solicitation clause. In response, the

Government also raises a new argument: the Oklahoma drug statute is divisible,

which requires application of the modified categorical approach. Thrasher replies that

the modified categorical approach does not apply, but that even if it did, the

Government has not met its burden to prove his prior convictions qualify for the

ACCA enhancement.

                                            II

       The parties disagree on which standard of review applies. The Government

maintains that we should review Thrasher’s sentence for plain error, as he did not

raise these arguments before the district court. Thrasher argues, citing United States

v. Titties, 852 F.3d 1257, 1264 (10th Cir. 2017), that regardless of the arguments

previously asserted, if his sentence is illegal, he is entitled to de novo review. We

disagree. Titties holds only that de novo review and plain error will reach the same

result if the defendant had received an illegal sentence. Id. Titties does not hold that

de novo review applies whenever a defendant contends that an ACCA enhancement

was wrongly applied.




                                            4
       As Thrasher did not argue before the district court that his Oklahoma drug

convictions do not come within the ACCA’s definition of “serious drug offenses,” we

review for plain error. “Plain error occurs when there is (1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Salas, 889 F.3d 681, 684

(10th Cir. 2018).

                                                   III

       To determine if a state conviction is a serious drug offense, we would

ordinarily apply the so-called “categorical” approach, taking the elements of the

statute under which the defendant was convicted and comparing them to the ACCA’s

definition of a “serious drug offense.” See United States v. Kendall, 876 F.3d 1264,

1267 (10th Cir. 2017). But if the statute, like the Oklahoma statute at issue, has

several clauses in the same statutory provision, we must determine whether the

clauses are elements or means. Id. at 1268; see also Titties, 852 F.3d at 1267

(“‘Elements are the constituent parts of a crime’s legal definition—the things the

prosecution must prove to sustain a conviction. . . By contrast, means are ‘various

factual ways of committing some component of the offense.’”) (citing Mathis v. U.S.,

136 S.Ct. 2243, 2248–49 (2016)).

       If the Oklahoma statute’s clauses are elements, then the statute is divisible

because it defines more than one crime. Kendall, 876 at 1268. In that case, to

determine Thrasher’s crime of conviction, we apply the “modified categorical

approach,” which “‘. . .permits sentencing courts to consult a limited class of

                                               5
documents, such as indictments and jury instructions, to determine which alternative

formed the basis of the defendant’s prior conviction.’” United States v. Taylor, 843

F.3d 1215, 1220 (10th Cir. 2016) (citing Descamps v. U.S., 570 U.S. 254, 257 (2016).

Finally, we then return to the categorical approach, and compare the elements of

Thrasher’s prior crime to the ACCA’s definition of “serious drug offense” to

determine if the enhancement was properly applied.

      We have identified several ways of determining whether a statute lists

elements or means. “[T]he statute on its face will [sometimes] provide the answer . . .

For example, ‘[i]f statutory alternatives carry different punishments, then under

Apprendi [v. New Jersey, 530 U.S. 466 (2000)], they must be elements.’” Titties, at

1267–68 (citing Mathis, 136 S.Ct. at 2256).

      That is the case here. Solicitation is an element because the statute provides

additional punishment for solicitation offenses. Thus, we easily conclude that the

statute is divisible. See 63 Okla. Stat. § 2-401(D) (1994) (providing for double the

fine and term of imprisonment otherwise authorized when a defendant is over the age

of 18 and violates the solicitation provision); see also Apprendi, 530 U.S. at 490

(“Other than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.”). 2 Having concluded the statute is divisible, we


      2
         Thrasher argues that, because the same increased penalty could apply to a
second or subsequent felony violation, no enhanced penalty applied. Aplt. Reply Br.
at 7 (“In other words, with respect to Mr. Thrasher’s second Oklahoma statutory

                                            6
turn to the modified categorical approach to determine which crime was the basis for

Thrasher’s convictions. See United States v. Madkins, 866 F.3d 1136, 1145 (10th Cir.

2017) (internal citations omitted).

                                            IV

       To determine the crime of conviction, “a sentencing court looks to a limited

class of documents (for example, the indictment, jury instructions, or plea agreement

and colloquy) to determine what crime, with what elements, a defendant was

convicted of.” Mathis, 136 S.Ct. at 2249 (citing Shepard v. U.S., 544 U.S. 13, 26

(2005)). However, the parties agree that no Shepard documents were directly

presented to the sentencing court. The Government suggests we can rely on either the

PSR or the Shepard documents it has now submitted on appeal.

       A.     The PSR

       We cannot rely solely on the PSR presented in this case to determine the crime

of conviction. The Government’s argument rests in part on Thrasher’s failure to

object to “the facts of [his] convictions.” Aple. Br. at 11 (emphasis in original). But

as Thrasher observes, the parties, the probation office, and the district court all

applied the categorical approach, which would not have caused Thrasher to object if

Shepard documents were lacking. More importantly, courts have required that, in

order to rely solely on the PSR to determine the crime of conviction, the PSR must be


violation . . . the solicitation or use-of-a-minor provision in the statute carried with it
no enhanced penalty as compared to the other means of violating the statute.”). But
the statute need not apply an enhanced penalty for the defendant’s particular
conviction; it need only apply an increased penalty for the relevant provision.
                                             7
derived from Shepard documents. See, e.g., United States v. Taylor, 413 F.3d 1146,

1157–58 (10th Cir. 2005) (remanding because the record did not show whether the

documents on which the PSR relied complied with Shepard); see also United States

v. Dantzler, 771 F.3d 137, 145 n.3 (2d Cir. 2014) (collecting cases). Here, nothing in

the record supports the conclusion that the PSR relied on Shepard documents. The

PSR’s relevant paragraphs, ¶¶ 36 and 40, cite only “reports from the Midwest City

Police Department,” and “Information.” 3 See ROA Vol. II at 16 and 18.

      We note that even the published cases the Government cites discuss the

availability of Shepard documents as support for the district court’s rulings. For

example, Snyder comments, in the context of a § 2255 motion when evaluating

whether the district court relied on the enumerated or residual clause, that “it would

have been permissible for the district court to examine the underlying charging

documents and/or jury instructions to determine if Snyder was charged only with

burglary of buildings. And the PSR in Snyder’s case actually did just that, without

any objection from Snyder.” United States v. Snyder, 871 F.3d 1122, 1130 (10th Cir.

2017) (emphasis added). In Harris, we noted that “the record indicates that the

[district] court had before it some of the court records from Harris’s prior crimes . . .

It thus appears from this record that the [district] court relied on Harris’s admissions

as well as documents sanctioned by Shepard to conclude the prior crimes were


      3
         The “Information” referenced in the PSR is presumably the document titled
“Information to Establish Prior Convictions” filed by the Government before the
district court. See Notice of Prior Convictions, ECF No. 20, Case No. 5:18-cr-221
(W.D. Ok. Oct. 1, 2018).
                                            8
committed on different occasions.” United States v. Harris, 447 F.3d 1300, 1306

(10th Cir. 2006) (emphasis added).

      B.     Attached Documents

      The Government did attach relevant Shepard documents to its appellate brief.

Aple. Br. at 13 n.6; see also Judgment and Sentence, District Court of Oklahoma

Cmty., OK, Case No. CF-95-7704 (Judgment 1) and Judgment and Sentence, District

Court of Oklahoma Cmty., OK, Case No. CF-96-5184 (Judgment 2). As the

Government notes, we may take judicial notice of these documents. See Fed. R. Evid.

201(c), (d), and Advisory Committee Note to (f) (“[J]udicial notice may be taken at

any stage of the proceedings, whether in the trial court or on appeal.”); see also St.

Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.

1979) (“[F]ederal courts, in appropriate circumstances, may take notice of

proceedings in other courts, both within and without the federal judicial system, if

those proceedings have a direct relation to matters at issue.”) (citations omitted),

United States v. Burris, 912 F.3d 386, 396 (6th Cir. 2019) (“We have taken judicial

notice of Shepard documents in similar circumstances before.”) (collecting Sixth

Circuit cases).

      Thrasher objects and argues that even if we take judicial notice of the

documents, they do not provide enough information to determine which provision

served as a basis for his guilty pleas. However, the only provision Thrasher argues

might not qualify as a predicate offense would be if he were charged under a

solicitation clause. Both Judgments make clear that Thrasher was engaging in

                                            9
distribution of a controlled dangerous substance, not solicitation; Judgment 2 even

mentions the substance in question. Thus, the documents establish that Thrasher’s

prior Oklahoma drug crimes are for possession with intent to distribute, which would

match the ACCA’s definition of a serious drug offense.

                                             V

       Even if the district court committed plain error by applying only the categorical

approach, Thrasher could not satisfy the third or fourth prongs of the plain error standard.

The Shepard documents which are now before us support the conclusion that Thrasher’s

prior convictions were correctly treated as serious drug offenses under the ACCA. His

sentence is AFFIRMED.


                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




                                            10
