United States v. Arnett

Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH July 14, 2026 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 24-6212 GLEN DELANE ARNETT, JR., Defendant - Appellant. _________________________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:23-CR-00114-PRW-1) _________________________________ Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant. Cedric C. M. Bond, Assistant United States Attorney (Stan J. West, Assistant United States Attorney, and Robert J. Troester, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee. _________________________________ Before BACHARACH, MURPHY, and ROSSMAN, Circuit Judges. _________________________________ ROSSMAN, Circuit Judge. _________________________________ Oklahoma City Police Officers stopped a vehicle driven by Glen Delane Arnett, Jr. During the stop, they noticed Mr. Arnett was sitting on  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 2 a handgun. He admitted he was a convicted felon. The officers arrested Mr. Arnett, searched the vehicle, and discovered several ounces of marijuana. The government indicted Mr. Arnett on three charges but the jury convicted him of just one: being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court imposed a 77-month prison sentence. This appeal concerns Mr. Arnett’s sentence. In calculating the advisory Guidelines range, the district court added four levels to Mr. Arnett’s base offense under U.S.S.G. § 2K2.1(b)(6)(B), an enhancement that applies if the defendant “possessed any firearm . . . in connection with another felony offense[.]” The district court found “another felony offense” by treating Mr. Arnett’s otherwise simple marijuana possession as a felony under 21 U.S.C. § 844 based on his prior Oklahoma drug convictions. That statute makes it a felony to possess a “controlled substance” after, as relevant here, “a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State[.]” Id. § 844(a). Mr. Arnett now appeals, challenging the application of the § 2K2.1(b)(6)(B) enhancement. Mr. Arnett did not raise in the district court the arguments he makes on appeal, and he appropriately concedes our review is only for plain error. It is that standard of review that ultimately proves dispositive. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm. 2  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 3 I A1 One night in February 2023, Sergeant Cortland Glover and his partner were patrolling the parking lot of an “after-hours club.” RI.269. Police “monitor[ed] the area” because there had been “recent shootings there” and several “violent cases.” RI.269. Sergeant Glover grew suspicious after observing a black Hyundai Sonata back into a parking space. Nobody got out of the car. Sergeant Glover parked at a gas station across the street so he and his partner could “monitor” the large crowd outside the nightclub. RI.269, 285. The officers watched the Sonata for about five to ten minutes. During that time, they saw “[m]ultiple people come to and from [the] vehicle[.]” RI.269–70. Sergeant Glover followed the Sonata when it left the nightclub parking lot. He initiated a traffic stop after the vehicle failed to signal a right turn. The Sonata “slow roll[ed]” to a stop, and Sergeant Glover observed “some odd movement in the vehicle” as the driver “reached back or something[.]” RI.270. He also noticed a “very strong[]” odor of marijuana coming from the Sonata. RI.274. Sergeant Glover approached the car and 1 We review the evidence “underlying a district court’s sentence . . . in the light most favorable to the district court’s determination.” United States v. Conley, 131 F.3d 1387, 1389 (10th Cir. 1997). 3  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 4 observed Mr. Arnett, the sole occupant, in the driver’s seat. His behavior struck Sergeant Glover as “a little suspicious” because he was “staring at his phone” and would not “make eye contact.” RI.271. Sergeant Glover asked Mr. Arnett for his driver’s license. As Mr. Arnett “lean[ed] over to . . . his right side to retrieve his license from his pocket,” Sergeant Glover observed “a pistol tucked underneath his left thigh.” RI.271. The officers removed Mr. Arnett from the Sonata and placed him in handcuffs. The gun “was fully loaded” and had a “round in the chamber ready to fire.” RI.279. Sergeant Glover noticed the gun had marijuana “all over it.” RI.276. The chamber also was “matted with marijuana.” RI.276. Mr. Arnett told the officers he was a convicted felon, and they arrested him. RI.273. After “securing” Mr. Arnett in the police cruiser, Sergeant Glover searched the Sonata. RI.274. He found a “brown paper sack . . . in the front passenger seat.” RI.275. There “were other bags of marijuana” inside the sack. RI.275. He also found a “Walmart-style sack in the front passenger side floorboard,” which contained “more bags of marijuana[.]” RI.275. In the backseat, Sergeant Glover discovered “a large digital scale” and “three or four cell phones.” RI.275. Officers seized 267 grams (or roughly eight ounces) of marijuana from the Sonata. 4  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 5 B The government indicted Mr. Arnett on three counts: (1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2) possessing with intent to distribute “a quantity of marijuana,” in violation of 21 U.S.C. § 841(a)(1); and (3) possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). RI.18–20. Trial lasted three days. Mr. Arnett represented himself with the assistance of standby counsel. Mr. Arnett put his girlfriend, Shawniece Latimer, on the stand. Ms. Latimer testified she owned the Sonata and that Mr. Arnett was driving it the morning of his arrest to “go see [his] brother in the hospital.” RI.434, 442. She also claimed to own the gun found in the car. Ms. Latimer told the jury she placed the gun in the Sonata “[p]robably . . . the day before” Mr. Arnett was arrested but did not tell him it was in the vehicle. RI.436–37. Ms. Latimer confirmed on cross examination that she “t[ook] care of” the gun and “k[ept] it clean.” RI.449. She explained there “shouldn’t have been” any marijuana on the gun “unless it was in the bag with the marijuana.” RI.449. And she denied “leav[ing] the gun in the bag with the marijuana[.]” RI.449. Ms. Latimer also testified the marijuana seized from the Sonata belonged to her. She purchased the marijuana “sometime around mid 2022” 5  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 6 with a medical marijuana card but had not smoked it because it was “old” and she “got sick off of it.” RI.439, 444. Ms. Latimer confirmed she intended to “get rid of” the marijuana. RI.444–45. When pressed by the government about the packaging in which the marijuana was discovered, Ms. Latimer maintained she “put it all in one bag so [she] d[id not] have a bunch of little baggies just laying around.” RI.445–46. As with the handgun, Ms. Latimer did not inform Mr. Arnett there was marijuana in the vehicle. After the jury retired for deliberations, Mr. Arnett moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Mr. Arnett argued the evidence was insufficient to establish that he possessed the marijuana for purposes of the intent-to-distribute charge because “[t]here w[ere] no fingerprints” and “there was no analysis of” the suspected marijuana Sergeant Glover saw on the handgun. RI.518. The government insisted the evidence established beyond a reasonable doubt that Mr. Arnett knowingly possessed the marijuana. It reiterated Ms. Latimer’s testimony “that she had not possessed th[e] gun” and did not leave “the marijuana on the firearm,” noted the marijuana’s “close proximity” to Mr. Arnett, and emphasized Mr. Arnett was “the only person in the vehicle that night[.]” RI.516. The district court denied the motion. The evidence of Mr. Arnett’s possession of the marijuana was, in its view, “overwhelming.” RI.519. Mr. 6  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 7 Arnett was “the only person in the car[,]” the district court reasoned. RI.519. “That’s possession.” RI.519. The jury deliberated for two hours. It convicted Mr. Arnett of unlawful possession of a firearm but acquitted him of possession with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime. C The case proceeded to sentencing. 2 In calculating Mr. Arnett’s advisory Guidelines range, the PSR recommended a four-point enhancement to Mr. Arnett’s base offense level under U.S.S.G. § 2K2.1(b)(6)(B) because he “possessed the [gun] in connection with the felony offense of possession of marijuana after a prior conviction for a drug offense.” RII.32. The PSR identified four prior drug-related state convictions: (1) a 2004 conviction for possession of a controlled dangerous substance (marijuana) with intent to distribute, in violation of Okla. Stat. Ann. tit. 63, § 2-401; (2) a 2004 conviction for possession of a controlled dangerous substance (cocaine) with intent to distribute, in violation of Okla. Stat. Ann. tit. 63, § 2-401; (3) a 2004 conviction for possession of a controlled 2 The district court initially appointed counsel for purposes of sentencing at Mr. Arnett’s request. Later, Mr. Arnett again decided to represent himself with the assistance of standby counsel. Mr. Arnett requested and received full assistance of counsel midway through sentencing proceedings. 7  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 8 dangerous substance (marijuana and cocaine) without a tax stamp, in violation of Okla. Stat. Ann. tit. 63, § 450.3; and (4) a 2008 conviction for possession of a controlled dangerous substance (marijuana), in violation of Okla. Stat. Ann. tit. 63, § 2-402. 3 Mr. Arnett objected to the § 2K2.1(b)(6)(B) enhancement on three grounds. First, he claimed the handgun “neither facilitated” his possession of the marijuana “nor had the potential to facilitate this offense.” RII.53. Second, while Mr. Arnett “concede[d] that under federal law simple possession of drugs can be a felony (21 U.S.C. § 844),” he argued the Biden Administration “d[id] not appear” to be “enforcing this statutory provision with respect to marijuana offenses.” RII.54. And third, Mr. Arnett observed the jury acquitted him of possession with intent to distribute. In his view, this acquittal meant “the jury ostensibly accepted that the marijuana in the vehicle belonged to” Ms. Latimer, so a four-point enhancement “in this 3 “Whenever a prior conviction is relevant to sentencing, the government must establish the fact of that conviction by a preponderance of the evidence.” United States v. Cooper, 375 F.3d 1041, 1052 (10th Cir. 2004). Mr. Arnett does not dispute the existence or validity of his state drug convictions identified in the PSR. We therefore treat those predicate facts as established. See United States v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009) (“If a defendant fails to specifically object to a fact in the PSR, the fact is deemed admitted by the defendant and the government need not produce additional evidence in support of the admitted fact.”). 8  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 9 circumstance would have the effect of counting acquitted conduct as relevant conduct.” RII.55. At the sentencing hearing, Mr. Arnett focused on two issues: (1) whether he possessed the marijuana found in the car; and (2) whether his possession of the handgun was “connected to” his possession of the marijuana. Only the first issue is relevant to this appeal. On that front, the district court found the trial evidence “pretty clear” that Mr. Arnett was “in possession of the marijuana.” RIII.103. In fact, “more than a preponderance of the evidence” supported a finding of possession. RIII.104. The district court was persuaded by “the significant quantity of marijuana . . . in the car[,]” the marijuana being “pretty open and obvious in a bag,” Mr. Arnett “being the sole occupant of the car, the marijuana being in very close proximity to him and the firearm in the passenger seat, [and Mr. Arnett] telling the officer immediately after being pulled over that there was marijuana in the car[.]” RIII.104, 108, 111. These facts “indicate that Mr. Arnett was aware that there was marijuana in the car and [he] was in possession of the marijuana that was in the car.” RIII.111. The district court addressed the implications of Mr. Arnett’s acquittal for possession with intent to distribute. As the district court explained, “[t]he question is” whether Mr. Arnett was “in possession of the marijuana.” RIII.107. Possession with intent to distribute, however, is “a different 9  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 10 crime.” RIII.103. The trial evidence was “pretty clear” Mr. Arnett “w[as] in possession,” the district court reasoned, “the jury just didn’t believe that [he] w[as] selling or distributing.” RIII.107. The district court also rejected Mr. Arnett’s ownership arguments, concluding ownership is “irrelevant to possession[.]” RIII.104. In the district court’s view, “[e]ven if [it] believed” the marijuana in the Sonata belonged to Ms. Latimer, the dispositive inquiry is whether Mr. Arnett was “in possession of the marijuana as the sole occupant of the car . . . and whether there[] [was] a nexus between [him] and the marijuana.” RIII.108. It clarified Mr. Arnett “wouldn’t have had to have touched [the marijuana] to possess it.” RIII.109. Based on this reasoning, the district court overruled Mr. Arnett’s objection to the § 2K2.1(b)(6)(B) four-point enhancement. 4 Mr. Arnett had a total offense level of 24 and a criminal history category of IV. This resulted in an advisory Guidelines range of 77 to 96 months’ imprisonment. 5 The district court ultimately sentenced Mr. Arnett to 77 months in prison followed by three years of supervised release. In imposing the sentence, the district court acknowledged “the plus-four enhancement [under 4 The district court also resolved other PSR objections not relevant to this appeal. 5 Had the district court sustained Mr. Arnett’s objection to § 2K2.1(b)(6)(B)’s four-point enhancement, his Guidelines range would have been 51 to 63 months. 10  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 11 § 2K2.1(b)(6)(B)] was a relatively close call,” but stated even if it had sustained Mr. Arnett’s objection it “was going to end up at the exact same sentence[.]” RIII.127. This timely appeal followed. II Mr. Arnett advances two challenges to the district court’s application of the § 2K2.1(b)(6)(B) enhancement. He concedes that plain-error review applies to both arguments because he did not raise either in the district court. First, Mr. Arnett argues the district court plainly erred by treating his simple possession of marijuana as a felony under 21 U.S.C. § 844. Second, and alternatively, he contends the district court plainly erred by applying the wrong legal standard to conclude he possessed the marijuana found in the Sonata. Where, as here, “an appellant raises a forfeited argument on appeal, we will reverse only if the appellant can satisfy our rigorous plain-error test.” United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). We will not reverse for plain error unless Mr. Arnett demonstrates “(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. Paycer, 154 F.4th 1261, 1271 (10th Cir. 2025). “Failure to establish any one of these elements precludes reversal.” United States v. 11  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 12 Romero, 132 F.4th 1208, 1218 (10th Cir. 2025). Plain error is a “demanding standard,” United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012), and “intentionally difficult to satisfy[,]” Paycer, 154 F.4th at 1271. Applying this standard, we now consider Mr. Arnett’s arguments. III Mr. Arnett argues the district court plainly erred by treating his simple possession of marijuana as a felony under 21 U.S.C. § 844. Mr. Arnett has demonstrated error, but we cannot agree the error is plain. A Under our plain error framework, Mr. Arnett must first show the district court “committed error.” United States v. Vazquez-Garcia, 130 F.4th 891, 897 (10th Cir. 2025) (quoting United States v. Magallanez, 408 F.3d 672, 678 (10th Cir. 2005)). When, as here, a defendant is convicted of unlawfully possessing a firearm, § 2K2.1(b)(6)(B) adds four points to his base offense level if he “used or possessed any firearm . . . in connection with another felony offense[.]” U.S.S.G. § 2K2.1(b)(6)(B) (2023). 6 The Guideline commentary 6 Effective November 1, 2025, the United States Sentencing Commission recodified § 2K2.1(b)(6)(B) as § 2K2.1(b)(7)(B). See U.S. Sent’g Guidelines Manual § 2K1.1(b)(7)(B) (U.S. Sent’g Comm’n 2025). It also renumbered the attendant application notes. The November 2025 amendments are not substantive with respect to the provisions relevant here. We nonetheless cite and refer to the 2023 Guidelines because they 12  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 13 defines “‘[a]nother felony offense’ for purposes of subsection (b)(6)(B)” as “any federal, state, or local offense . . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” Id. § 2K2.1, cmt. n.14(C). In this case, Section 844 is the “other felony offense” for purposes of § 2K2.1(b)(6)(B). 7 That statute says an individual may be imprisoned up to two years if he “knowingly or intentionally [] possess[es] a controlled substance . . . after a prior conviction under this subchapter . . . or a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State[.]” 21 U.S.C. § 844(a). A “drug, narcotic, or chemical offense means any offense which proscribes the possession, distribution, manufacture, cultivation, sale, transfer, or the attempt or conspiracy to were in effect at the time of Mr. Arnett’s sentencing in October 2024 and were used by the United States Probation Officer to calculate Mr. Arnett’s offense level. See United States v. Sullivan, 255 F.3d 1256, 1259 (10th Cir. 2001) (noting “a sentencing court must apply the guidelines in effect at the time of sentencing . . . unless such application would violate the ex post facto clause”); U.S.S.G. § 1B1.11(a) (“The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced.”). 7 The district court never mentioned § 844. The PSR does not reference it either. Only the PSR addendum cites that statute, but even then, it merely acknowledges Mr. Arnett’s “conc[ession] that under federal law simple possession of drugs can be a felony (21 U.S.C. § 844)[.]” RII.47. Mr. Arnett does not take issue with this omission on appeal. The parties proceed under the mutual assumption that the district court must have relied on § 844 to elevate Mr. Arnett’s simple possession of marijuana to a felony. We take the same approach. 13  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 14 possess, distribute, manufacture, cultivate, sell or transfer any substance the possession of which is prohibited under this subchapter.” Id. § 844(c). Thus, when someone “knowingly or intentionally” possesses a “controlled substance” and already has (1) a conviction under § 844(a) or (2) a “conviction for any drug, narcotic, or chemical offense chargeable under the law of any State,” he can be imprisoned for over a year—the definition of “another felony offense” under § 2K2.1(b)(6)(B). See Carachuri-Rosendo v. Holder, 560 U.S. 563, 567–68 (2010) (noting that “recidivist simple possession” “may be punishable as a felony” under the Controlled Substances Act). Mr. Arnett’s simple marijuana possession qualifies as a felony under § 844—and therefore can be considered “another felony offense” for purposes of § 2K2.1(b)(6)(B)—only if he has at least one prior “conviction for any drug, narcotic, or chemical offense chargeable under the law of any State[.]” 8 21 U.S.C. § 844(a). Mr. Arnett says he lacks a qualifying criminal 8 Because “Mr. Arnett has no prior federal drug conviction[,]” he reasons that “the district court’s application of § 2K2.1(b)(6) embodies an implicit conclusion that at least one of [his] several Oklahoma convictions for possessing a ‘controlled dangerous substance’ qualifie[s] as a conviction for a ‘drug, narcotic, or chemical offense.’” Op. Br. at 13. We agree. The government never argued Mr. Arnett has a prior § 844 conviction. And the PSR does not identify one, much less specify which of Mr. Arnett’s four Oklahoma drug convictions qualify as “drug, narcotic, or chemical offense[s]” under § 844. It is therefore unclear whether the district court believed one, some, or all four of those convictions satisfy § 844’s definition 14  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 15 history because none of his prior Oklahoma drug convictions is a “drug, narcotic, or chemical offense” as defined in § 844(c). Op. Br. at 13. The crux of Mr. Arnett’s argument is that the district court should have applied “the categorical approach” to § 844(c) to determine whether any of his prior Oklahoma drug convictions qualify as “drug, narcotic, or chemical offense[s].” Op. Br. at 14–15. The categorical approach “focus[es] solely on whether the elements of the crime of conviction sufficiently match the elements of [the federal statute], while ignoring the particular facts of the case.” Mathis v. United States, 579 U.S. 500, 504 (2016). And under the categorical approach, Mr. Arnett claims all four of his prior Oklahoma convictions are “overbroad” because the underlying statutes of conviction proscribed possessing or trafficking substances that were not “controlled substances” under federal law. Op. Br. at 18–22; see Johnson v. Barr, 967 F.3d 1103, 1106 (10th Cir. 2020) (explaining that under the categorical approach, when the state statute of conviction “criminalizes more substances” than those proscribed by the federal statute, “then the [state] statute is ‘overbroad,’ and no ‘categorical match’ exists between the [state] of a “drug, narcotic, or chemical offense.” Mr. Arnett does not focus on this in his briefing. On appeal, and as we will discuss, the government argues only that Mr. Arnett’s convictions for possession with intent to distribute under Okla. Stat. Ann. tit. 63, § 2-401 qualify as “drug, narcotic, or chemical offense[s].” 15  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 16 statute and its federal analogue” (quoting Descamps v. United States, 570 U.S. 254, 276–77 (2013))). The government suggests the factual approach—not the categorical approach—applies to § 844(c). “[T]he factual approach ‘look[s] not only at the terms of the statute of conviction, but also at the underlying facts.’” 9 United States v. Abeyta, 877 F.3d 935, 940 (10th Cir. 2017) (alteration in original) (quoting United States v. Martinez-Hernandez, 422 F.3d 1084, 1087 (10th Cir. 2005)). Using this approach, the government argues Mr. Arnett’s convictions for possession with intent to distribute qualify as “drug, narcotic, or chemical offense[s]” because “a federally banned substance was actually involved[.]” Ans. Br. at 16 (emphasis added). For those offenses, Mr. Arnett “was convicted of possession with intent to distribute . . . marijuana and cocaine”—both of which “are controlled substances under federal law.” Ans. Br. at 19. According to Mr. Arnett, “the government . . . tacitly concedes that, if the categorical approach applies, Mr. Arnett lacks any qualifying predicate.” Reply Br. at 1–2. He suggests “the issue” on appeal therefore 9 The government never uses the term “factual approach” in its brief. But its arguments necessarily implicate the factual approach. For example, the government claims § 844(c) requires us to “determine what actually happened and whether a federally banned substance was actually involved in the underlying offense.” Ans. Br. at 16. This is the hallmark of the factual approach. 16  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 17 “reduces to whether § 844(c) requires a categorical or factual approach.” Reply Br. at 2. We agree with Mr. Arnett’s framing of the dispositive issue. 10 And for the reasons that follow, we conclude Mr. Arnett has established error. Whether the categorical approach or the factual approach applies “depend[s] on the language” of the statute at issue. Martinez-Hernandez, 422 F.3d at 1087. The “determination of the applicable approach,” we have said, “is a question of statutory interpretation.” Abeyta, 877 F.3d at 940 (citing Taylor v. United States, 495 U.S. 575, 600 (1990)). “We employ the categorical approach ‘when the language of the [federal statute] confines the court’s inquiry to the terms of the [state] statute of conviction.’” Id. (quoting Martinez-Hernandez, 422 F.3d at 1086). But “we employ the factual approach ‘when the language of the [federal statute] requires courts to look at the specific facts underlying the prior [state] offense.’” Id. (quoting Martinez-Hernandez, 422 F.3d at 1087). Mr. Arnett makes a convincing case for why the categorical approach applies to § 844(c). He argues “the language” of § 844(c) “unambiguously directs the court to look to the statute of conviction, not to the facts.” Op. 10 The government essentially conceded as much at oral argument. When asked whether it agreed Mr. Arnett lacks a qualifying predicate conviction if the categorical approach applies to § 844(c), the government indicated it “did not challenge that” point. See Oral Arg. at 32:57–3:20. 17  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 18 Br. at 16. Recall, the statute defines “drug, narcotic, or chemical offense” as “any offense which proscribes the possession, distribution, manufacture, cultivation, sale, [or] transfer . . . [of] any substance the possession of which is prohibited under” federal law. 21 U.S.C. § 844(c) (emphasis added). Mr. Arnett claims § 844(c)’s “directive to focus on what the offense ‘proscribes’ settles” what approach applies in this case. Op. Br. at 16. “Facts,” he says, “do not ‘proscribe.’ Rather, the statute of conviction ‘proscribes.’ Thus, § 844(c) tells the court to base its analysis on the statute of conviction—i.e., to apply the categorical approach.” Op. Br. at 16. In support of his textual argument, Mr. Arnett points to United States v. Herrera-Roldan, 414 F.3d 1238 (10th Cir. 2005) and United States v. Martinez-Hernandez, 422 F.3d 1084 (10th Cir. 2005), two cases applying the categorical approach in the context of the Armed Career Criminal Act (ACCA) to enhancements with text similar to § 844(c)’s. In Herrera-Roldan, we applied the categorical approach to an enhancement defining “‘drug trafficking offense’ as ‘an offense under federal, state, or local law that prohibits the . . . possession of a controlled substance[.]’” 414 F.3d at 1240 (emphasis added) (quoting U.S.S.G. § 2L1.2(b)(1), cmt. n.1(B)(iv) (2003)). The “focus” of the “drug trafficking offense” definition, we said, was “not on the defendant’s conduct, but on what the state law prohibits,” meaning “our inquiry” was “confine[d] . . . to the terms of the statute of conviction[.]” Id. 18  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 19 at 1241. The enhancement at issue in Martinez-Hernandez had identical “prohibits” language. See 422 F.3d at 1087. There too we applied the categorical approach because the enhancement defined “firearms offense” as “[a]n offense under Federal, state, or local law that prohibits the possession of” certain kinds of firearms. See id. (emphasis added) (quoting U.S.S.G. § 2L1.2(b)(1), cmt. n.1(B)(v)(II) (2003)). We once again concluded the phrase “that prohibits” “focus[es] on the terms of the statute of conviction” by “ask[ing] us to look at what the statute prohibits.” Id. Mr. Arnett contends the word “proscribes is just a synonym for ‘prohibits’” and “confines the inquiry to the terms of the statute of conviction in just the same way[.]” Op. Br. at 17. We agree. Like Mr. Arnett, we see little—if any—difference between § 844(c)’s use of “proscribes” and the “that prohibits” language at issue in Herrera- Roldan and Martinez-Hernandez. The term “proscribes” is more or less “synonymous with ‘prohibits[.]’” Op. Br. at 30; see Proscribe, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining “proscribe” as “[t]o outlaw or prohibit; to forbid officially” (emphasis added)). Thus, just as the enhancement language in Herrera-Roldan and Martinez-Hernandez focused our inquiry on what the statute of conviction prohibited, here too § 844(c) confines us to 19  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 20 the terms of the Oklahoma statutes underlying Mr. Arnett’s prior drug convictions. 11 All that is to say, the categorical approach applies to § 844(c). The government advances three counterarguments, but none is persuasive. First, in support of the factual approach, the government likens § 844(c) to the statute at issue in Nijhawan v. Holder, 557 U.S. 29 (2009). There the Supreme Court examined whether the categorical approach or the “circumstance-specific” approach 12 applies to the “fraud and deceit” 11 Although § 844(c)’s text “unavoidably demands the categorical approach,” Mr. Arnett says it is “also worth noting that interpreting § 844 to require a factual approach would make it either unconstitutional or unworkable.” Op. Br. at 17. This is because the “statutory maximum” under § 844 “turns on whether the defendant has a prior conviction for a ‘drug, narcotic, or chemical offense,’” and “only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction.” Op. Br. at 17 (emphasis omitted) (quoting Mathis, 579 U.S. at 511). But at the same time, Mr. Arnett suggests, “interpreting § 844 to require a jury to determine the facts underlying the defendant’s prior conviction(s) would entail mini trials on events that . . . may be decades old.” Op. Br. at 18. Given our conclusion that the categorical approach applies to § 844(c), we need not address this argument. 12 The “circumstance-specific” approach is another way to describe the factual approach—i.e., they are one and the same. See, e.g., United States v. Cooper, 159 F.4th 768, 775 (10th Cir. 2025) (“[I]f the court applies a circumstance-specific approach, then it is free to look at the specific facts and conduct that led to the conviction in order to determine whether the conviction qualifies.”); United States v. Gieswein, 887 F.3d 1054, 1059 (10th Cir. 2018) (“When a statute or Guideline ‘was intended to refer to the specific acts in which a defendant has engaged on a prior occasion, we use a circumstance-specific approach’ under which we ‘may look beyond the elements of the prior offense and consider the facts and circumstances 20  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 21 subprovision of 8 U.S.C. § 1101(a)(43). See Nijhawan, 557 U.S. at 34–37. That subprovision defines “aggravated felony” to encompass—as relevant here—“an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000[.]” 8 U.S.C. § 1101(a)(43)(M)(i). The Court concluded this language “is consistent with a circumstance-specific approach.” Nijhawan, 557 U.S. at 38. “The words ‘in which’ (which modify ‘offense’),” the Court reasoned, “can refer to the conduct involved ‘in’ the commission of the offense of conviction, rather than to the elements of the offense.” Id. at 39. Thus, § 1101(a)(43)(M)(i)’s “monetary threshold applies to the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion.” Id. at 40. We are not persuaded. There are meaningful textual differences between §§ 844(c) and 1101(a)(43)(M)(i) which render the government’s comparison unconvincing. Most notably, § 1101(a)(43)(M)(i) does not “prohibit” or “proscribe” anything. It also lacks any comparable language confining a court’s review to the terms of the statute of conviction. See Herrera-Roldan, 414 F.3d at 1241 (“confin[ing] our inquiry to the terms of the statute of conviction”); Martinez-Hernandez, 422 F.3d at 1087 (“focus[ing] on the terms of the statute of conviction”). And noticeably underlying an offender’s conviction.’” (quoting United States v. White, 782 F.3d 1118, 1131 (10th Cir. 2015))). 21  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 22 absent from § 844(c) is anything like § 1101(a)(43)(M)(i)’s “monetary threshold” language that might require us to examine “the specific circumstances surrounding an offender’s commission of” a drug offense. See Nijhawan, 557 U.S. at 40. The government does not point to any persuasive similarities between the statutes either. Instead, it recites Nijhawan’s facts and the text of § 1101(a)(43)(M)(i) before asserting, without more, that we “should conclude [§ 844(c)]—read in context—requires a court to determine what actually happened and whether a federally banned substance was actually involved[.]” Ans. Br. at 15–16. We cannot do so. Second, the government insists Mr. Arnett “omit[s] one of the strongest textual clues against his position: the word ‘any.’” Ans. Br. at 16. “Congress used the word ‘any’ throughout § 844 when addressing the enhancement for recidivist drug offenders[,]” the government notes, and this “use of the word ‘any’ distinguishes § 844 from the other laws that were interpreted by the cases on which Mr. Arnett relies.” Ans. Br. at 16–17. The government emphasizes the “expansive meaning” of the word “any.” Ans. Br. at 17 (internal quotation marks omitted). It claims Congress “had ready language available in the ACCA” if it “wished to limit who qualified for a felony sentence under § 844(a) to only those with state convictions [that] were a categorical match or less restrictive than federal law[.]” Ans. Br. at 17. 22  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 23 We disagree. The word “any” does not inform our central inquiry— whether § 844(c) is referring to the statute underlying the prior conviction (the categorical approach) or to the defendant’s particular conduct (the factual approach). As Mr. Arnett puts it, “the expansiveness of the word ‘any’ might suggest a liberal approach to deciding whether the thing we have to analyze—be it the statute or the facts—ultimately satisfies the terms of the enhancement.” Reply Br. at 5. It does not, however, “tell us which thing to analyze in the first instance.” Reply Br. at 5. Third, the government offers policy considerations. It dismisses the categorical approach as “a maligned interpretative approach” and cautions us against “expanding the categorical approach further than it has already gone.” Ans. Br. at 17, 19; see also id. at 18 (“[S]cores of jurists have decr[ied] the categorical approach.” (second alteration in original) (internal quotation marks omitted)). We have recognized “the categorical approach can sometimes generate counterintuitive results,” “occasional anomalies,” and “odd outcomes.” 13 United States v. Adams, 40 F.4th 1162, 1170 & n.7 (10th Cir. 2022). But even a righteous critique does not allow us to abandon the 13 In fact, “a growing number of judges across the country” have criticized the categorical approach as, among other things, a “waste[] of judicial resources” that “undermines confidence in the administration of justice.” United States v. Scott, 990 F.3d 94, 126 (2d Cir. 2021) (Park, J., concurring) (collecting cases). 23  Appellate Case: 24-6212 Document: 74-1 Date Filed: 07/14/2026 Page: 24 dictates of applicable law. Without more, we cannot ignore what the law requires. Accordingly, we conclude Mr. Arnett has carried his burden on the first prong of the plain error standard. But that does not end our inquiry. For Mr. Arnett to prevail, he also must show the district court plainly erred by not applying the catego