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

                             FOR THE TENTH CIRCUIT                            June 4, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-4060
                                                (D.C. No. 2:16-CR-00261-TS-RTB-1)
JAMES DOUGLAS HAYES,                                          (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
                  _________________________________

      A jury convicted James Hayes of several offenses related to distributing

methamphetamine, and the district court sentenced him to 20 years in prison. Hayes

appeals only his sentence. He argues the district court erred by sentencing him

within the enhanced range for defendants with a prior felony drug conviction, and by

not affording him the opportunity to speak on his own behalf before sentence was

imposed. We affirm.

      I. Background

      *
        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 This order and judgment is not binding precedent,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.
      Hayes was indicted for, among other offenses, possession of

methamphetamine with intent to distribute under 21 U.S.C. § 841(a)(1), and

conspiracy to distribute methamphetamine under § 841(a)(1) and 21 U.S.C. § 846.

The government also filed an information under 21 U.S.C. § 851(a)(1) notifying

Hayes that he may be subject to increased punishment based on a prior California

conviction. Specifically, the information alleged Hayes had been convicted of,

among other offenses, violation of Cal. Health & Safety Code § 11378 in Orange

County case 05WF0141 on May 23, 2005.

      A jury convicted Hayes on all charges. The presentence report revealed that

his 2005 conviction was for “Possession for Sale of Methamphetamine,” R. Vol. II at

10, and concluded Hayes was subject to an enhanced sentencing range under

§ 841(b)(1)(A). That section provides that anyone who violates § 841(a) in a case

involving “50 grams or more of methamphetamine1 . . . after a prior conviction for a

felony drug offense . . . shall be sentenced to a term of imprisonment which may not

be less than 20 years and not more than life.” § 841(b)(1)(A)(viii).

      At the sentencing hearing, the district court confirmed the parties had received

the presentence report and that Hayes had enough time to discuss it with his counsel.

The court heard argument by counsel and then sentenced Hayes to 20 years in prison,

the mandatory minimum term under § 841(b)(1)(A). Only after confirming the




      1
      There is no dispute Hayes’ present offense involved more than 50 grams of
methamphetamine.
                                          2
parties had no legal objection to the sentence did the court ask Hayes whether he had

anything to say on his own behalf. Hayes declined.

       On appeal, Hayes argues the district court erred by sentencing him under the

enhanced range in § 841(b)(1)(A) because the government failed to prove his 2005

conviction was a “felony drug offense” within the meaning of the statute and the

court did not inquire whether he wished to affirm or deny the 2005 conviction, which

it was required to do. Hayes also argues the court denied him a meaningful

opportunity to allocute at the sentencing hearing.

       II. “Felony Drug Offense”

       Hayes argues the district court erred by enhancing his sentence because the

government failed to prove his 2005 conviction was a “felony drug offense” within

the meaning of § 841(b)(1)(A). As Hayes did not raise this argument before the

district court, we review only for plain error. See United States v. Tee, 881 F.3d

1258, 1271 (10th Cir. 2018). We will reverse under this standard if “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.” Id.

(internal quotation marks omitted). “An error is plain when it is clear or obvious,”

meaning “contrary to well-settled law.” Id. (internal quotation marks omitted).

Hayes has not shown the district court violated well-settled law.

       The term “felony drug offense” is defined in 21 U.S.C. § 802(44). It is “an

offense that is punishable by imprisonment for more than one year under any law of

the United States or of a State . . . that prohibits or restricts conduct relating to

                                             3
narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”

Id. As noted above, Hayes’ 2005 conviction was for possessing a controlled

substance for sale under Cal. Health & Safety Code § 11378. That section provides:

“a person who possesses for sale a controlled substance [included in one of five

subsections referring to different substances] shall be punished by imprisonment

pursuant to [Cal. Penal Code § 1170(h) for 16, 24, or 36 months].” Id.

       Hayes argues the government failed to prove the substance involved in his

2005 conviction was one of the controlled substances included in § 802(44)’s

definition of “felony drug offense,” pointing out that the information filed pursuant to

§ 851(a)(1) identified the statute he was convicted under, but failed to identify the

substance involved. He admits the substance involved in his 2005 conviction was

methamphetamine, which is a stimulant controlled under federal law, see 21 U.S.C.

§ 812 Sched. III(a)(3), and that his trial counsel in the present prosecution conceded

Hayes was convicted of possessing methamphetamine for sale in 2005. However,

Hayes argues the district court could not consider counsel’s concession in

determining whether his prior conviction was a felony drug offense. The government

argues that it could.

       As a preliminary matter, the parties urge us to use the categorical (and

modified categorical) approach to determine whether Hayes’ 2005 conviction meets

§ 802(44)’s definition of “felony drug offense.” But they cite no cases from this

circuit—and we have found none—explicitly applying the categorical approach in

this context. Rather, it seems we have taken a less formal approach. In United States

                                           4
v. Yeley-Davis, 632 F.3d 673, 681-82 (10th Cir. 2011), we affirmed an enhanced

sentence under § 841(b)(1)(A) based in part on the defendant’s prior Wyoming

conviction for “taking or passing a controlled substance into a jail.” We recognized

the Wyoming statute extends to more substances than § 802(44), but without

mentioning the categorical approach, we concluded the conviction “clearly fit[] the

definition of felony drug offense” because the record showed the defendant pled

“nolo contendere to bringing methamphetamine into a jail.” Id. Looking to our sister

circuits, it appears some have applied the categorical approach while others have not.

See Brock-Miller v. United States, 887 F.3d 298, 306-07 (7th Cir. 2018) (recognizing

the lack of uniformity and collecting cases). This case does not require us to decide

which approach should apply because even under the more rigorous categorical

approach Hayes has not shown plain error.

      To apply the categorical approach in this context, we compare the elements of

§ 11378 to the definition of felony drug offense in § 802(44). See Mathis v. United

States, 136 S. Ct. 2243, 2248-49 (2016) (describing the categorical and modified

categorical approaches). The parties agree § 11378 extends to more controlled

substances than § 802(44). They also agree the particular controlled substance

involved is an element of § 11378 and the statute lists controlled substances in the

alternative, so it is divisible. See id. at 2249. We therefore apply the modified

categorical approach to determine which controlled substance Hayes was convicted

of possessing. See id. If we can identify the substance, we then apply the categorical



                                           5
approach to determine whether the elements of Hayes’ conviction meet the definition

of “felony drug offense.” See id.

      Hayes argues the modified categorical approach allows us to consider only a

limited class of documents from his 2005 case to determine which elements he was

convicted of violating. He would limit our review to the charging document, plea

agreement, and plea colloquy. Because none of these materials identify the

controlled substance involved in his 2005 conviction, Hayes argues, we cannot

conclude that his prior conviction was a felony drug offense.

      It is true that “the modified categorical approach allows reference only to ‘the

terms of the charging document, the terms of the plea agreement or transcript of

colloquy between judge and defendant in which the factual basis for the plea was

confirmed by the defendant, or to some comparable judicial record of this

information.’” United States v. Ventura-Perez, 666 F.3d 670, 676 (10th Cir. 2012)

(citing Shepard v. United States, 544 U.S. 13, 26 (2005)). But we have also held that

“defense counsel’s admission suffices under this test.” Id. Because “[c]ourts could

not function properly if concessions by counsel cannot be relied upon,” we have not

required “the document itself . . . [to] be produced in court if defense counsel

stipulates to its contents.” Id.; see also United States v. Maldonado-Palma, 839 F.3d

1244, 1247 (10th Cir. 2016) (accepting the defendant’s concession that he was

convicted under a particular subsection of the relevant statute), cert. denied,

137 S. Ct. 1214 (2017).



                                            6
       Hayes argues this precedent has been superseded by Mathis and our decision

in United States v. Titties, 852 F.3d 1257 (10th Cir. 2017). But neither of those cases

held that courts applying the modified categorical approach could not rely on defense

counsel’s admissions to identify the elements of a prior conviction. Indeed, the

Supreme Court in Mathis concluded the modified categorical approach did not apply

in that case because the statute at issue was not divisible. See Mathis, 136 S. Ct. at

2253. We reached the same conclusion in Titties. See Titties, 852 F.3d at 1272.

Because neither case required application of the modified categorical approach, much

less a decision about what materials courts could consider when using that approach

to identify the elements of a prior conviction, neither case superseded Ventura-Perez

on this point.

       Here, it appears there was no dispute in the district court that the controlled

substance involved in Hayes’ 2005 conviction was methamphetamine. In one

pleading, Hayes’ counsel stated “[i]t is uncontested that Mr. Hayes was convicted in

2005 of Possession [of] Methamphetamine for Sales.” R. Vol. I at 172. In another,

he acknowledged Hayes had a “2005 conviction[] for Possession of

Methamphetamine for Sales,” and admitted “Hayes was convicted in 2005 for

Possession of Methamphetamine,” id. at 156.2 The presentence report also noted

Hayes’ 2005 conviction for “Possession for Sale of Methamphetamine,” R. Vol. II at

10, which Hayes did not dispute, see United States v. Tindall, 519 F.3d 1057,


       2
        Hayes’ counsel made similar admissions during a pretrial argument.
See R. Vol. III at 678.
                                            7
1061-62 (10th Cir. 2008) (“[Fed. R. Crim. P.] 32(i)(3)(A) allows the sentencing court

to accept any undisputed portion of the presentence report as a finding of fact.”

(internal quotation marks omitted)).

      Even applying the categorical (and modified categorical) approach, the district

court did not violate well-settled law by relying on these admissions to identify the

substance involved in Hayes’ 2005 conviction. See Ventura-Perez, 666 F.3d at 676;

Maldonado-Palma, 839 F.3d at 1247. There is no dispute that a violation of § 11378

is punishable by more than a year in prison and that methamphetamine falls within

§ 802(44)’s reach, so Hayes has not shown that the district court committed plain

error by concluding his 2005 conviction was a felony drug offense.

      III. § 851(b) Inquiry

      Hayes argues his sentence was illegal because the district court ignored the

procedural requirements of § 851(b) by not asking him to affirm or deny the 2005

conviction before sentencing him within the enhanced range. We review the legality

of Hayes’ sentence de novo. United States v. Dahda, 853 F.3d 1101, 1116 (10th Cir.

2017), aff’d, ___ S. Ct. ____, No. 17-43, 2018 WL 2186173 (May 14, 2018). Hayes

has not shown he could have successfully challenged his 2005 conviction, so any

failure to comply with § 851(b) was harmless. See United States v. Lopez-Gutierrez,

83 F.3d 1235, 1246 (10th Cir. 1996) (applying harmless error standard to

unpreserved argument that the district court failed to comply with § 851(b)).3


      3
       But see United States v. Wilson, 183 F. App’x 814, 824 (10th Cir. 2006)
(unpublished) (applying plain error standard). Hayes’ argument fails under either the
                                           8
      The government filed an information under § 851(a)(1) alleging Hayes was

subject to an enhanced sentence based on his 2005 conviction. This triggered the

district court’s obligation under § 851(b) to inquire whether Hayes affirmed or denied

that he had “been previously convicted as alleged in the information,” and to “inform

him that any challenge to [the] prior conviction” must be made before the sentence

was imposed.

      The district court failed to conduct this inquiry. But Hayes neither claims he

would have denied the prior conviction had the court inquired nor explains how he

could have successfully challenged the validity of the conviction, especially given his

counsel’s repeated admissions. See Lopez-Gutierrez, 83 F.3d at 1246-47 (the court’s

failure to comply with § 851(b) was harmless when the defendant did not argue he

would have challenged the prior conviction had he been warned, he did not explain

“how such a challenge might be successful,” and his counsel conceded the defendant

had been convicted of the offense during a pretrial hearing). Moreover, it appears

any challenge to the 2005 conviction would have been futile because the conviction

occurred more than five years before the information was filed. See § 851(e)

(prohibiting a challenge to the validity of a prior conviction that “occurred more than

five years before the date of the information alleging such prior conviction”); United

States v. Bagby, 696 F.3d 1074, 1089 (10th Cir. 2012).




harmless error or plain error standard, so this case does not require us to decide
which standard applies.
                                           9
      Because Hayes has not shown he could have successfully challenged his 2005

conviction, he is not entitled to reversal. See United States v. Jones, 818 F.3d 1091,

1101 (10th Cir. 2016) (“An error is harmless unless it had a substantial influence on

the outcome or leaves one in grave doubt as to whether it had such effect.” (internal

quotation marks omitted)); see also United States v. Cordery, 656 F.3d 1103, 1108

(10th Cir. 2011) (“To satisfy the third prong of plain error review, the appellant must

show a reasonable probability that, but for the error claimed, the result of the

proceeding would have been different.” (internal quotation marks omitted)).

      IV. Opportunity to Allocute

      Hayes argues the district court denied him a meaningful opportunity to

allocute by pronouncing his sentence before asking Hayes whether he wished to

address the court. Before imposing a sentence, “the court must . . . address the

defendant personally in order to permit [him] to speak or present any information to

mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). The government agrees the

district court failed to comply with this rule. Because Hayes did not object, we

review for plain error. See United States v. Bustamante-Conchas, 850 F.3d 1130,

1137 (10th Cir. 2017).

      When a court imposes the lowest possible sentence, the defendant cannot

satisfy the third plain-error prong because he cannot show prejudice. Id. at 1140.

Here, the district court sentenced Hayes to 20 years in prison, the mandatory




                                           10
minimum under § 841(b)(1)(A). As a result, Hayes cannot show that denying him

the opportunity to allocute amounted to plain error.

      V. Conclusion

      We affirm.


                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Circuit Judge




                                          11
