PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RICHARD ANTHONY TRENT, Defendant - Appellant. No. 12-6283

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:12-CR-00053-HE-1)

Julia C. Summers, Assistant Federal Pub lic Defender, Oklahoma City, Oklahoma, for Defendant – Appellant. Mark R. Stoneman, Special Assistant United St ates Attorney, (Sanfo rd C. Coats, United States Attorney, and Robert D. Gifford, II, A ssistant United States A ttorney, with him on the brief), Oklahoma City, Oklaho ma, for Plaintiff – Appellee.

Before HARTZ , SEYMOUR , and TYMKOVICH , Circuit Judges.

_______________ __________________ HARTZ, Circuit Judge.

Defendant Richard Trent appeals his convic tion and sentence for being a felon in possession of a firearm. He raises five issu es that can be disposed of briefly and a FILED United States Court of Appeals Tenth Circuit 

### September 25, 2014
Elisabeth A. Shumaker Clerk of Court2 challenging issue about whether we can apply what is called the “modified categorical approach” to determine whether his prior fe lony is a “serious drug offense” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). On the ACCA issue we hold that the general Oklahoma conspiracy statut e is divisible and therefore subject to the modified categorical approach, and that Defendant’s prior violation of that statute was a serious drug offense because the object of the conspiracy was manufacturing methamphetamine. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. BACKGROUND On August 13, 2012, Defendant visite d the home of Michael Kimberly in Geronimo, Oklahoma, with Lloyd Robinson a nd Angela Keller. While the three were there, a neighbor called 911 to report someone standing outside the home with a gun. The neighbor described the person as a wh ite man with tattoos on his arms who was wearing blue jeans and no shirt. In a late r 911 call, the neighbor said that the man had left the house in a green Volvo. A police officer responding to the call pulled over a green Volvo a few minutes later and found Ro binson (a black man) behind the wheel, Keller in the front passenger seat, and Defendan t in the back seat. The officer removed them from the car and searched it, finding a handgun in the back seat. It was not in plain view but wedged behind the arm rest, which was pushed out about halfway. When the officer ran the criminal histories of the three, the dispatcher told the officer that Keller and Defendant had prior felo ny convictions, and they we re arrested. Robinson was allowed to leave in the Volvo, which belonged to his mothe r. Defendant was indicted on3 one count of being a felon in possession of a firearm, in viol ation of 18 U.S.C. § 922(g)(1). The principal issue at trial was whether th e gun in the car was Defendant’s. The government put on considerable evidence to suppor t the charge. Aaron Bruno, the owner of the gun, testified that he had left it tempor arily with Heather Widner. She testified that Defendant had sent her a text message to say that he “needed a burner” and that she had given him Bruno’s pistol. R., Vol. 3 at 36. She admitted that her testimony differed from her statement to investigators a week earlier, when she had said that Defendant had come over to smoke marijuana with he r the night before the incident and that she had not given him the gun. Robinson testified that at Keller’s request he picked up Keller and Defendant and drove them to a house in Gero nimo. He had never before met Defendant or been to the house. He said that he sa w Defendant with a gun while at the house. The neighbor also identified Defendant as th e man he had seen holding a gun. Defendant called several witnesses to try to show that the gun was Robinson’s. Keller testified that the day before the incide nt, she had gone with Robinson to the house in Geronimo, where he gave methamphetamine to a young woman who refused to pay for it and ran into the house, leav ing a pit bull outside so that Robinson and Keller could not retrieve the money he was owed. Keller also said that she saw a gun in Robinson’s purse the next day, that it was his idea to go back to the house in Geronimo, and that Defendant just went along for the ride and did not ha ve a gun. The defense presented two other4 witnesses whose testimony corroborated parts of Keller’s account of her activities with Robinson. The jury convicted Defendant. At sentenci ng he argued that he was not subject to a mandatory minimum sentence under the ACCA . He conceded that he had convictions for two serious drug offenses but conte nded that his conviction under Oklahoma’s general conspiracy statute di d not qualify as the third convi ction necessary for the ACCA enhancement. The district court disagreed and sentenced him to 196 months in prison plus five years of supervised release. II. DISCUSSION We can easily reject five of Defendant’s challenges to his conviction and sentence: (1) that the eviden ce was insufficient to su pport the verdict; (2) th at the district court improperly admitted into evid ence his 2007 conviction as a felon in possession of a firearm to show knowledge in the 2012 case; (3) th at a jury instruction improperly cited to the sentencing provision of the statute, although it did not state the provision’s contents; (4) that the court improperly gave an investigative-techniques jury instruction; and (5) that his sentence was substantively un reasonable. We then turn to the subtle question he raises under the ACCA. A. Sufficiency of the Evidence Defendant argues that the evid ence was insufficient to supp ort the jury’s verdict. “We review sufficiency of the evidence claims de novo, but examine the ev idence in the light most favorable to the government a nd ask only whether any rational juror could5 have found [the defendant] guilty beyond a reasonable doubt.” United States v. Oldbear , 568 F.3d 814, 822–23 (10th Cir. 2009). Defendant’s insufficiency argument is e ssentially that some of the prosecution witnesses were not credible. Such argume nt is doomed to failure. In assessing the sufficiency of the evidence, we will ordina rily not “consider w itness credibility.” Id. at 823. “We will only disregard testimony as incr edible if it gives f acts that the witness physically could not have possibly observed or events that could not have occurred under the laws of nature.” United States v. Oliver , 278 F.3d 1035, 1043 (10th Cir. 2001) (brackets and internal quotation marks omitted). Defendant does not suggest that the problems with witness testimony at hi s trial satisfied e ither ground in Oliver for disregarding testimony. B. Admission of Previous Conviction Defendant argues that it was error under Fed. R. Evid. 404(b) to admit into evidence his previous convicti on as a felon in possession of a firearm to show that he knowingly possessed the firearm found in Ro binson’s car. Rule 404(b)(1) states: “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occa sion the person acted in accordance with the character.” But Rule 404(b)(2) does allo w such evidence to be admitted for other purposes, such as “proving motive, opportun ity, intent, preparation, plan, knowledge, identity, absence of mistak e, or lack of accident.” We review for abuse of discretion the6 district court’s decision to admit evidence. See United States v. Moran , 503 F.3d 1135, 1143 (10th Cir. 2007). Defendant’s argument is contrary to controlling precedent. In Moran , also a prosecution for felon in possession of a firear m, the defendant was stopped while driving an SUV. There were no other occupants. See id. at 1139. The officer who stopped him saw in the back seat “a rifle stock stic king out of an unzipped rifle case.” Id. When asked who owned the rifle, he said it was his girlfriend’s; when asked if it was loaded, he said it was; and when asked why he had the ri fle, he said he always kept one in his vehicle. See id. The prosecution offered into evid ence the defendant’ s prior conviction as a felon in possession of a firearm. See id. We held that the evidence was properly admitted. See id. at 1144. Although evidence of the prior conviction could cause unfair prejudice by “allowing the jury to infer criminal propensity,” id. at 1145 (internal quotations omitted), we noted the probative valu e of the evidence in that “the fact that [defendant] knowingly possessed a firearm in the past su pports the inference that he had the same knowledge in the cont ext of the charged offense,” id. at 1144. Defendant tries to distinguish Moran on the ground that the facts there were different. He points out that in Moran the defendant was the sole occupant of the vehicle, that his girlfriend owned it, that he had regula rly been seen driving the vehicle in the past, and that the rifle was in plain view. See id. at 1138–39. But he fails to explain why those facts would make the prior conviction more proba tive than in this case . And, in our view, the facts that Defendant was not the sole occ upant and that the gun was not in plain view7 actually make the question of knowing posse ssion more debatable in this case, which weighs in favor of admission despite the possib ility of unfair prejudice; when an issue is not seriously disputed, there is little justification for admitti ng evidence that risks unfair prejudice. See Fed. R. Evid. 403 (relevant evidence may be excluded if “its probative value is substantially outweighed by a danger of . . . unfair prejudice”); United States v.
Tan , 254 F.3d 1204, 1209 (10t h Cir. 2001) (prior-convicti on evidence that might otherwise be inadmissible under Rule 403 was admissible because of the absence of other strong evidence on the principal contested issue at trial). Following Moran , we hold that the district cour t did not abuse its discretion in admitting Defendant’s prior conviction. We caution, however, that courts should be hesitant to admit such eviden ce because of the great danger of unfair prejudice. Indeed, the district court here would not have abused its discretion had it refused to admit the evidence of the conviction. See United States v. McGlothin , 705 F.3d 1254, 1263–64 n.13 (10th Cir. 2013) ; United States v. Moore , 709 F.3d 287, 295–96 (4th Cir. 2013) (“The evidence of Moore’s possession of a differe nt type of firearm, introduced via Rule 404(b), served only to esta blish Moore’s criminal di sposition and was therefore inadmissible.”). C. Penalty Citation in Jury Instructions The indictment stated that Defendant violated “Title 18, United States Code, Section 922(g)(1), the penalty for which is fo und in Title 18, United States Code, Section 924(a)(2).” R., Vol. 1 at 10. Defendant contends that th e district court erred when it8 allowed the indictment, including this citation to the statutor y penalty, to be included in the jury instructions. He po ints out that § 924(a)(2) states that the maximum punishment is 10 years’ imprisonment, much less than he actually faced under the ACCA; and he suggests that a juror could have looked up the cited provision and been more likely to find him guilty of the crime based on the belief that the punishment would not be as harsh as it really was. This is one of the more imag inative arguments presented to this court. We are not persuaded. There is no indication in the re cord, or even an alle gation by Defendant, that any juror was familiar with or looked up (or even could have looked up) the cited statutory provision during deliber ations. Moreover, the district court instructed the jury that it “should not be concerned with punishment in any way an d should not consider it in arriving at [the] verdict.” Id. at 70. “Juries are presumed to follow the instructions they are given.” United States v. Weiss , 630 F.3d 1263, 1275 (10th Cir. 2010). Thus, even if there was error in including the reference to § 924(a)(2) in the instructions, there is no reason to believe that the re ference affected the jury. D. Investigative-Techniques Instruction Defendant asserts that the ju ry was erroneously instructed that the government was not required to use all the investigative tec hniques available to it. He argues that the instruction undercut his theory that the government did not discover the real possessor of the gun because it conducted a faulty investiga tion. But the instruction did not prevent him from arguing that a better investigation woul d have exonerated him. As we said in9 United States v. Cota-Meza , 367 F.3d 1218, 1223 (10th Cir. 2004), “Merely because the instruction informs the jury that the utilization of all known investigative methods is not legally required does not prevent the jury from concluding that a failure to employ certain investigative methods neverthele ss detracts from th e credibility of the government’s evidence.” We reject Defendant’s argument. E. Substantive Reasonableness of the Sentence Defendant argues that his sentence is substantively unreasonable because it is longer than necessary to acco mplish the sentencing goals fou nd in 18 U.S.C. § 3553(a). He argues that his sentence is too high becaus e there is no evidence that he used the gun in an offensive manner; he was found with no other illicit items; his ADHD has led to his problems with the law, but he is fundamenta lly a good person; his criminal history shows that he has not been arrested for violent cond uct, so he is not a danger to the community; and the sentence impermissibly punishes him mostly for past crimes, not the current crime. But a sentence, such as Defendant’s , that falls below the correctly calculated guideline range is “presumptively reasonable against an attack by a defendant claiming that the sentence is too high.” United States v. Balbin-Mesa , 643 F.3d 783, 788 (10th Cir. 2011) (internal quotation marks omitted). Defe ndant’s arguments are not sufficient to rebut the presumption here. F. Armed Career Criminal Act Defendant was sentenced under the ACCA , which increases the penalty for being a felon in possession of a firearm if the defe ndant has three previo us convictions for a10 “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). He concedes that he had two convictions for serious drug offenses under the ACCA. But he challenges the characterization of a 2007 Oklahoma conviction fo r conspiracy as a serious drug offense. Our review is de novo. See United States v. Delossantos , 680 F.3d 1217, 1219 (10th Cir. 2012). The ACCA provides that a state crime is a “serious drug offe nse” if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximu m term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii) (internal quotation marks omitted). To determine whet her a conviction qualifies un der the ACCA, the court will ordinarily apply what is called the “categor ical approach,” whic h looks only at the elements of the statute under wh ich the defendant was convicted. See Descamps v. United States , 133 S. Ct. 2276, 2281 (2013); United States v. Smith , 652 F.3d 1244, 1246 (10th Cir. 2011) (categorical approach applies to bot h violent felonies and serious drug offenses). In other words, a conviction qualifies only if all violations of the statute would qualify, regardless of “how [the specifi c] offender might have committed it on a particular occasion.” Begay v. United States , 553 U.S. 137, 141 (2008). Under the categorical approach, Defendant’s conspiracy conviction would not be a conviction of a serious drug offense. Oklaho ma’s general conspiracy statute states: “If two or more persons conspire . . . [t]o co mmit any crime[,] . . . they are guilty of a11 conspiracy.” Okla. Stat. Ann. tit. 21, § 421 (A) (West 1999). Obviously, the statute could be violated in many ways that ha ve nothing to do with drugs. At times, however, a court may use what is termed the “modified categorical approach” to determine whether a prior convi ction is for a qualified offense under the ACCA. This approach is warranted when a stat ute is divisible: that is, when it “sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile.” Descamps, 133 S. Ct. at 2281 (internal quotation marks omitted). Because an offe nse may not qualify under the ACCA under all the alternatives (say, entry in to a building but not entry in to a car), the court examines certain definitive underlying do cuments to determine which alternative the defendant’s conviction satisfied. See id. at 2283–84. We have not created an exhaustive list of which documents can be examined under the modifi ed categorical approach, but the Supreme Court has stated that permissible documen ts include “charging documents, plea agreements, transcripts of plea colloquies, fi ndings of fact and conclusions of law from a bench trial, and jury instru ctions and verdict forms.” Johnson v. United States , 559 U.S. 133, 144 (2010). This circuit has also c onsidered admissions of defense counsel. See United States v. Ventura-Perez , 666 F.3d 670, 676 (10th Cir. 2012). The issue before us is whet her the modified categorical approach can be used to determine whether the conspira cy committed by Defendant is a serious drug offense. The information to which Defendant pleaded guilty states the charge as “conspiracy to manufacture a controlled dangerous substance” and states that Defendant “conspir[ed]12 and agree[d] . . . to commit the crime of Ma nufacture of Methamphetamine.” R., Vol. 1 at 104 (full capitalization omitted). Is it permissible for the cour t to take into account the drug-related specifics of this conspiracy charge?
1. Descamps Determining whether a court is permitted to use the modified categorical approach can be difficult. The Supreme Court’s most recent guidance on the question came in Descamps , 133 S. Ct. 2276. Descamps was convicted of be ing a felon in possession of a firearm. See id. at 2282. One of his previous convictions was for burglary under a California statute. See id. A state offense is a violent felony under the ACCA if it “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The government argued that Descamps’s prior conviction was a violent felony because it was a burglary. See Descamps , 133 S. Ct. at 2282. Burglary is not defined by the ACCA, but the Supreme Cour t has construed the term to mean generic burglary—“an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” James v. United States , 550 U.S. 192, 197 (2007) (internal quotation marks omitted). Descamps argued that his burglary conviction did not qualify under the ACCA because the California offense is broader than generic burglary. See Descamps , 133 S. Ct. at 2282. The California statute “provide s that a person who ente rs certain locations with intent to commit grand or petit larceny or any felony is guilty of burglary.” Id.13 (internal quotation marks omitted). Unlike the definition of generic burglary, the statutory definition does not require the en try into the location to be unlawful or unprivileged. See id. Descamps argued that because some crimes under the statute would fit the generic definiti on of burglary and ot hers would not, a conviction under the statute would not qualify as a violent fe lony under the ACCA and the court was precluded from using the modified categoric al approach to examine the facts of conviction. See id. The Ninth Circuit disagreed, relying on its recent en banc opinion in United States v. Aguila-Montes de Oca , 655 F.3d 915 (9th Cir. 2011). In that case the Ninth Circuit determined that the modified categorical appr oach applies to “missi ng element” statutes that are “missing an element of the generic crime.” Id. at 925 (internal quotation marks omitted). For example, statutory rape under federa l law requires “an age difference of at least four years between the defendant and the minor.” Id. (emphasis and internal quotation marks omitted). Because several California statutory-rape offenses do not require this age difference, instead criminaliz ing sexual acts with anyone under a certain age regardless of the age of the perpetrator, they ar e missing-element statutes. 1 See id.

1 The Ninth Circuit also defined “broad elem ent” statutes, which “c ontain[] an element that encompasses the generic element but cover[] a broader range of conduct than the generic element.” Aguila-Montes de Oca , 655 F.3d at 925 (internal quotation marks omitted). Its opinion, however, then spoke only in terms of missing-element statutes because “the distinction betwee n the ‘broad element’ and ‘m issing element’ cases is only of limited conceptual use and has no legal significance.” Id. To illustrate this point, it gave the example of a state pornography stat ute that punished po ssession of pornography Continued . . .14 The Aguila-Montes court continued its analysis with a discussion of divisible statutes, which it stated (correctly) are clea rly amenable to the modified categorical approach. See id. at 926. “A divisible statute,” it said, “contains a list of statutory phrases, at least one of which satisfies an element of a given generic crime.” Id. at 924. As an example, “if the statute of conviction contains the elements of (1) harmful contact and (2) use of a gun or an axe, the modifi ed categorical approach can be used to determine whether the trier of fact was actual ly required to find that the defendant used a gun.” Id. at 927. After analyzing the case law and concluding that Supreme Court precedent left open whether the modified cate gorical approach is limited to divisible statutes, the court explained why it thought mi ssing-element statutes sh ould be treated the

same. See id. at 927–37. The linchpin of the Ninth Circuit’s analysis was that missing-element statutes are not “meaningfully different” from divisible statutes. Id. at 927. The court reasoned that a missing-element statute just creates a hypotheti cal list of alternativ es rather than an explicit list. See id. “For example, a statute that requires use of a ‘weapon’ is not meaningfully different from a statute that simply lists every kind of weapon in existence.”
Id. “Because we have little difficulty discerning that someone convicted of assault with a

and a federal sentencing enhancement that incr eased punishment for previous convictions of possession of child pornography. See id. at 926. It stated, “[T]he statute of conviction could be characterized either as containing the ‘broad’ element of pornography (including both adult and child pornography) or as ‘missi ng’ the element of involvement of minors.” Id.15 ‘weapon’ may have used a gun, the modified categorical approach could apply in the same way it does to a conviction under a divisibl e statute to determine if the trier of fact was actually required to find th at the defendant used a gun.” Id. The court said that the inquiry—based on the charging document, plea agreement, and other documents that can be examined in the modified categorical a pproach—is essentially the same whether the statute is divisible or a missing-element statute. See id. at 937. The inquiry is still whether “the factfinder [was] actually required to find the facts satisfying the elements of the generic offense.” Id. at 936. It explained: In both cases, courts must rely on th e same set of documents reflecting the facts necessarily found by the trier of fa ct in support of th e conviction; they cannot look to any different documen ts or facts when considering a conviction under a missing-element statute than they would when reviewing a conviction under a divisibl e element statute. If the defendant could not have been convicted of the offense of conviction unless the trier of fact found the facts that satisfy th e elements of the generic crime, then the factfinder necessarily found the elements of the generic crime.
Id. at 937. Applying the Aguila-Montes approach, the Ninth Circuit in Descamps held that the defendant had been convicted of generic burglary. See United States v. Descamps , 466 F. App’x 563, 5 65 (9th Cir. 2012). The Supreme Court reversed. It held th at the modified categorical approach cannot be used “when the crime of which the defendant was convicted has a single, indivisible set of elements.” Descamps , 133 S. Ct. at 2282. That approach is acceptable only “when a statute lists multiple , alternative elements, and so effectively creates several different crimes.” Id. at 2285 (ellipses and internal qu otation marks omitted). In that16 context the prosecutor “must generally select th e relevant element from [the statute’s] list of alternatives[;] . . . [a]nd the jury, as instructions in the case will make clea r, must then find that element, unanimously and beyond a reas onable doubt.” Id. at 2290. Thus the modified categorical approach “retains the cate gorical approach’s central feature: a focus on the elements, rather than the facts, of a crime.” Id. at 2285. The Court identified three reasons for adop ting this elements-based focus. First, the text of the ACCA speaks in terms of a defendant’s “previous convictions.” Id. at 2287 (internal quotation marks omitted). This focus on convictio ns, rather than the defendant’s acts, implies that “Congress intende d the sentencing court to look only to the fact that the defendant had be en convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Id. (internal quotation marks omitted). In particular, the statute instructs courts “to treat every conviction of a crime in the same
manner.” Id. Second, the categorical a pproach avoids a collision with the Sixth Amendment requirement that “any fact that increases th e penalty for a crime beyond the prescribed statutory maximum must be submitted to a ju ry, and proved beyond a reasonable doubt.”
Id. at 2288 (internal qu otation marks omitted). A court examining the facts of a defendant’s prior offense to de termine whether the ACCA shou ld be applied to increase the defendant’s sentence could make findings that no jury has made. In contrast, the statutory elements of the prior offense—the so le subject of inquiry under the categorical approach—must be found by the jury. “[T]he onl y facts the court can be sure the jury . . .17 found [unanimously and beyo nd a reasonable doubt] are thos e constituting elements of the offense—as distinct from amplifying but legally extraneous circumstances.” Id. Finally, the Court observed that it is often difficult for courts to determine the facts underlying prior convictions a nd doing so can be unfair, partic ularly when the defendant may not have thought it important to challenge co llateral facts that were irrelevant to guilt under the statute. See id. at 2289. Under the Ninth Circuit’s approach, it said, “sentencing courts . . . would have to expend resources exam ining (often aged) documents for evidence that a defendant admitted in a plea colloquy, or a prosecutor showed at trial, facts that, although unnecessary to the cr ime of conviction, satisfy an element of the relevant generic offense.” Id . The prospect of su ch “daunting difficulties and inequities” demands a different approach. Id. (internal quotation marks omitted). Only when a statute is divisi ble can the modified categorical approach satisfy these three policy considerations, as use of the modified categorical appr oach in that situation will conform to statutory language, satisfy the Si xth Amendment, and lead to fair results. See id. at 2289–91. Accordingly, the Court reject ed application of the modified categorical approach when the statute of conviction has a single se t of elements, whether it “has an overbroad or missing element.” Id. at 2292. The Court did not, how ever, suggest in any way that it was retreating from its application of that a pproach in previous cases: When a statute defines the offense “alternatively, with one statutory phrase corresponding to the generic crime and another not,” id. at 2286, courts may examine documents such as an indictment18 or plea agreement to determine “which statut ory phrase was the basis for the conviction,”
id. at 2285 (internal qu otation marks omitted). 2. Cross-References to Other Statutes That leads us, however, to another ques tion. Must the alte rnative “statutory phrases” appear in the statute of convictio n if the court is to apply the modified categorical approach? In particular, is th at approach proper when the statute of conviction cross-references other statutes? For example, a state statute could define a crime of assault that involves use of a “w eapon.” Assume that the crime would be ACCA-eligible only if the weapon used was a gun. If another provision of that state’s criminal code defines “weapon” as a “gun, knif e, or bat,” then the definition of the crime contains a list of alternatives. In our view, such a statute is divisibl e. Although we di d not use the word divisible , we previously held as much. In Ventura-Perez , 666 F.3d at 670, we considered a Texas burglary statute that referred to entry into a “h abitation.” “Habitation” was defined elsewhere in the Texas code as “a st ructure or vehicle that is adapted for the overnight accommodation of persons . . . .” Id. at 673. Applying the modified categorical approach, we held th at “[i]t is irrelevant that he re the statutory phrase is in a definition section of the state penal code, ra ther than in a section stating a criminal offense,” because the definition was “inc orporated into the offense section.” Id. at 676. Other courts have explicitly found similar statutes divisible. Recently, the Ninth Circuit in Coronado v. Holder , 759 F.3d 977 (9th Cir. 20 14), applied the modified19 categorical approach to hold that an alien’ s conviction under a California drug statute rendered him inadmissible un der 8 U.S.C. § 1182(a)(2)(A)(i )(II). Under the categorical approach the conviction could not be used to show that the a lien was inadmissible, because the conviction could ha ve been for possession of kha t, which is not a substance banned by the federal Contro lled Substances Act (CSA). See id. at 982

‒ 83. But the court found the California statute divisible be cause it “identifies a number of controlled substances by referenci ng various California drug schedule s and statutes and criminalizes the possession of any one of those substances.” Id. at 985; accord Ragasa v. Holder , 752 F.3d 1173, 1176 (9th Cir. 2014) (applying the identical te st to determine that Hawaii drug statute is divisible). Similarly, the Sixth Circuit considered an Ohio incitement-to-violence statute, which criminalizes “knowingly engaging in co nduct designed to urge or incite another to commit any offense of violence” under certain circumstances. United States v. Denson , 728 F.3d 603, 608 (6th Cir. 2013) (bracket s and internal quotation marks omitted). A different section of the Ohio criminal code defined offense of violence “and set[] forth assorted categories of qualifying offenses.” Id. Applying Descamps , the court ruled that the “statute of conviction” was divisible beca use it “turn[ed] on the particular offense of violence underlying the defendant’s inciting-violence conviction.” Id. at 612 (internal quotation marks omitted). We also note that two other circuits adopted the same analysis before Descamps

. The Third Circuit considered a Delaware statute that prohibited wearing body armor20 “during the commission of a felony” and found that the statute “incorporates by reference the disjunctive list of all felonies,” there by justifying use of the modified categorical approach. United States v. Gibbs , 656 F.3d 180, 187 (3d Cir. 2011) (internal quotation marks omitted). And the Seventh Circuit found divisible an Illinois armed-violence statute, which “appli[ed] whenever a pers on commits a felony while armed with a dangerous weapon.” United States v. Fife , 624 F.3d 441, 446 (7th Cir. 2010), abrogated on other grounds by United States v. Miller , 721 F.3d 435, 438 (7th Cir. 2013). It explained, “There is no need that each poten tial felony be explicitly listed and separately enumerated as a subsection, because th e practical effect is the same.” Id. This approach is consistent with pre- Descamps Supreme Court precedent. In
James , 550 U.S. at 196, the issue was whethe r the defendant’s previous conviction for attempted burglary, “in violation of Fla. Stat §§ 810.02 and 777.04 (1993),” qualified under the ACCA as a violent felony. Secti on 810.02 was Florida’s burglary statute. See id. at 197. Section 777.04 was Florida’s general atte mpt statute, which states: “A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fa ils in the perpetration or is intercepted or prevented in the execution thereo f, commits the offense of crim inal attempt . . . .” Fla. Stat. § 777.04(1) (e mphasis added). The attempt statute is not divisible on its face. But it references all state criminal offenses, and th e Supreme Court did not hesitate to look to the specific offense stated in the charging document—burglary. The Court held that the offense of conviction was a violent felony. See James , 550 U.S. at 212. Although it said21 nothing about whether § 777.04( 1) was divisible, a contrary determination would render the decision inconsistent with Descamps because the Court lo oked at the charging document to determine which specif ic crime was allegedly attempted. To hold that such statutes are not divisible becau se they do not explicitly list every underlying felony in their text would mean that state crimes such as attempt, aiding and abetting, solicitation, or (as in this case) conspiracy, would or dinarily not qualify as ACCA predicates. 3. Application to Oklaho ma Conspiracy Statute We now turn to the application of divisi bility doctrine to this case. In 2007, Defendant pleaded guilty to a vi olation of Oklahoma’s general conspiracy statute, which reads: “If two or more persons conspire . . . [t]o commit any crime[,] . . . they are guilty of a conspiracy.” Okla. Stat. Ann. tit. 21, § 421(A). Like the Florida attempt statute in
James , the Oklahoma conspiracy statute cross-refe rences all state criminal offenses. We hold that it is divisible for purposes of the ACCA. The Oklahoma legislature could have chosen to write out, as part of the conspiracy statute, a list of all Oklahoma crimes. But there was no reason to do so because Oklahoma al ready has a finite list of conduct that it considers criminal: the crimes set forth in the Oklahoma Criminal Code. Although this list is lengthy, it is not “hypothetical.” Descamps , 133 S. Ct. at 2290. By crossreferencing the state’s criminal code, the general conspiracy statute lays out “multiple, alternative versions of the crime” of cons piracy, according to what underlying crime provides the conspiracy’s object. See id. at 2284.22 Because the Oklahoma conspiracy statute is divisible, we examine the specifics of Defendant’s conviction. The object of the alleged conspiracy was the manufacture of methamphetamine. The amended information to whic h he pleaded guilty listed the charge as “conspiracy to manufacture a cont rolled dangerous substance” and stated that Defendant “conspire[ed] and agree[ed] . . . to commit the crime of Manufacture of Methampehtamine.” R., Vol. 1 at 104 (full capitalization omitted). Likewise, in his plea colloquy Defendant stated, “I conspired to manufacture methamphetamines.” Aplee. Br.
at 73. The final step in this analysis is easy. Does the crime “conspiracy to manufacture methamphetamine” satisfy the definition of serious drug offense in the ACCA? A state crime is a “serious drug offense” if it “involv[ed] manufacturing, distributing, or possessing with intent to manufacture or distri bute, 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)(ii) (internal quotation marks omitted). We agree with the other circuits that have read the “involving manufacturing” language broadly to include attempts to manufacture or conspiracy to manufacture. See, e.g. , United States v. Williams , 488 F.3d 1004, 1009 (D.C. Cir. 2007 ) (because the word involving is expansive, attempt to distribute cocaine is a serious drug offense); United States v. McKenney , 450 F.3d 39, 44 (1st Cir. 2006) (Congress’ use of the “broad word ‘involving’” shows its intent to cover state drug attempt and conspiracy convictions). We therefore conclude that conspiracy to manufacture methamphetamine satis fies the ACCA definition. See, e.g. , United States v.23 Bynum , 669 F.3d 880, 887 (8th Cir. 2012) (“[A] mere agreement to distribute a controlled substance, even absent some overt act in furthe rance of the conspiracy . . . is sufficient to constitute a serious drug offense u nder the ACCA.” (citation omitted)); McKenney , 450 F.3d at 45. Defendant does not dispute the point. 2

2 The parties also argue over whether the requi rement of an overt act in a conspiracy statute changes our analysis about whether to use the modified categorical approach. This argument is based primarily on two of our decisions, United States v. King , 979 F.2d 801 (10th Cir. 1992), and United States v. Brown , 200 F.3d 700 (10th Cir. 1999). But these decisions do not alter our analysis. Neither addres sed divisibility and neither informs our decision here. King considered whether cons piracy to commit armed robbery was a violent fe lony under the ACCA. See 979 F.2d at 801–02. The ACCA definition of violent felony has two alternativ es. A crime can be a violent felony if it “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another” or if it “(ii) is bur glary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). We fi rst considered whether the conspiracy charge satisfied (i) and properly concluded that it did not because the offense did not require commission of an overt act and the conspirato rial agreement itself did not require the use or attempted use of force or a communicated threat. See King , 979 F.2d at 802–03. We then considered the residual clause of (ii), namely whether the conspiracy “present[ed] a serious potential risk of phy sical injury to another.” Relying on our decision in United States v. Strahl , 958 F.2d 980 (10th Cir. 1992), which held that attempted burglary does not present such a risk , we held that the residual clause also was not satisfied. See King , 979 F.2d at 803–04. Our hold ing on the applicability of the residual clause is no longer good law, as Strahl was later overruled by James , 550 U.S. at 198. And our holding on the applicability of clause (i) is not inconsistent with our decision here because Defendant ’s offense could be a serious drug offense even if the offense did not require him to manufacture methamphetamine (it was enough that he conspired to do so.) As for Brown , it considered 18 U.S.C. § 924(c), which defines crime of violence very similarly to th e ACCA’s definition of violent felony

. See 200 F.3d at 705–06. Brown held that conspiracy to carjack in volved a substantial risk of physical harm, distinguishing King on the ground that the conspiracy statute in Brown required proof of an overt act—in that case, carjacking. See id. at 706.24 4. Meaning of “Element” 3
The above discussion would seem to resolve Defendant’s cl aim. But a subtle issue remains. Yes, the various statutes cross-re ferenced by the Oklahoma conspiracy statute provide the alternative “statu tory phrases” necessary for application of the modified categorical approach. But Descamps , rather than just using the language statutory phrases , generally speaks in terms of “altern ative elements” or “potential offense elements.” Descamps , 133 S. Ct. at 2281, 2283, 2284, 2285. In what sense must the alternative statutory phrases be elements of the statutory offense of which the defendant was convicted? The answer to this questi on is of critical importance, because if the alternatives are not “elements” (in the sense of the word used by Descamps ), then the modified categorical approach is inapplicable. In particular, if the specific object of the conspiracy is not an element of the Oklahoma crime of conspiracy, then we cannot say that Defendant committed a serious drug offens e no matter how clear it is that the object of his conspiracy was the manufacture of me thamphetamine. We proceed to offer our

answer. As the Supreme Court has stated, “Calling a particular kind of fact an ‘element’ carries certain legal consequences. [For ex ample,] a jury . . . cannot convict unless it unanimously finds that the Government has proved each element.” Richardson v. United
States , 526 U.S. 813, 817 (1999) (citation omitted). The fact that a criminal statute lists

3 Judge Seymour does not join § II(F)(4).25 alternatives does not necessarily mean that the alternatives are alternative elements in that sense. If several alternatives are presented to the jury, the jurors may not need to agree on which alternative act was committed by the defendant. The alternatives may be simply alternative “means” of committing the offense; and the juro rs could disagree on the means but still properly convict. A striking example is provided by Schad v. Arizona , 501 U.S. 624 (1991). The defendant was convic ted of first-degree murder and sentenced to death. The applicable Arizona statute defined first-degree murder as “murder which is perpetrated by . . . premeditated killing, or wh ich is committed . . . in the perpetration of [one of several listed felonies].” Id. at 628 n.1. The defendant argued that his jury should have been instructed that they ne eded to agree unanimously on a single theory of first-degree murder. See id. at 628–29. The Supreme Court affirmed. In another jurisdiction the two alternatives might be considered as alte rnative elements, and thus the jury would have to be unanim ous on at least one of the alte rnatives. But “under Arizona law neither premeditation nor th e commission of a felony is formally an independent element of first-degree murder; they are treated as mere means of satisfying a mens rea element of high culpability.” Id. at 639 (emphasis added). Therefore, it was enough that the jury was unanimous in deciding that the defendant “murdered either with premeditation or in the course of committing a robbery.” Id. at 630. If Descamps adopted this traditional view of wh at an element is, then the firstdegree-murder statute in Arizona would not be divisible, and as a general matter a court could never use the modified categorical appr oach without first determining whether the26 alternatives set forth in a cr iminal statute are alternative elements or just alternative means. As Justice Alito ex plained in his dissent in Descamps , such an inquiry would often be difficult because of the dearth of case law regarding whether a statute’s alternatives are alternative m eans or alternative elements. See Descamps , 133 S. Ct. at 2301–02 (Alito, J., dissenting). This distinction between el ements and means could have important consequences in applying the ACCA. Consider the previo usly discussed Ninth Circuit decision in Coronado . Under the categorical approach the Ca lifornia conviction did not qualify as a serious drug offense because possession of khat would not violate the federal CSA, so not all violations of the California statute would be serious drug offenses. That is, one could not look solely at the offense of conviction (violation of the Califor nia statute) and know that the defendant must have committed a se rious drug offense. But the modified categorical approach could not be used if the iden tity of the drug possessed by the defendant is not an element of the California drug statute. And in the Richardson / Schad sense of that word, the identity of the drug apparently is not an element. California case law suggests that the jury need not agree on which contro lled substance the defendant possessed. In Ross v. Municipal Court , 49 Cal. App. 3d 575 (1975), a defendant was charged with using and bei ng under the influence of a controlled substance. He challenged the complaint on the ground that it did not identif y the controlled substance. The court, noting that the co mplaint may not have identifie d the substance because it was not known, held that the co mplaint was adequate even though “it did not tell [the27 defendant] the means by which he committed the crime.” Id. at 579 (emphasis added);

s ee People v. Romero , 64 Cal. Rptr. 2d 16, 17, 22 (Cal. Ct . App. 1997) (stating that in a prior case the court did not have to decide whether the defendant had sold mescaline or had sold LSD because the defenda nt “was guilty of a single offense, sale of a controlled substance”; pleading a particular substance “does not transmute the offense of possession of a controlled substance into as many di fferent offenses as there are controlled substances”). (There is also federal-court authority indicating that the identity of the specific controlled substance is not an el ement of a crime under the CSA. In United States v. Dolan , 544 F.2d 1219, 1223

‒ 24 (4th Cir. 1976), it was unclear whether the substance was mescaline or LSD, but “[t]he gist of the charge . . . was that [the defendant] travelled in intersta te commerce to engage in an unlawful enterprise involving a Schedule I controlled substa nce, and both mescaline and LSD are Schedule I controlled substances,” id. at 1224; cf. United States v. Johnson , 130 F.3d 1420, 1428 (10th Cir. 1997) (“The identity of the in volved controlled substance as being cocaine base rather than simply cocaine is not an element of any [21 U.S.C.] section 842(a)(1) offense.” (internal quotation marks omitted)).) Nevertheless, we think that th e Ninth Circuit got it right in Coronado . It is necessary to keep in mi nd the context in which Descamps used the terms alternative
elements and potential offense elements . The key feature of divisibility in Descamps is that “[a] prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives[;] . . . [a]nd the jury, as instructions in the28 case will make clear, must then find that element, unanimous ly and beyond a reasonable doubt.” 133 S. Ct. at 2290. In that circ umstance (when only one a lternative appears in the charging document or plea agreement), the modified cate gorical approach “permits a court to determine which statutory phras e was the basis for the conviction.” Id. at 2285 (internal quotation marks omitted). The Court’s three reasons for applying the categorical approach (or the m odified version) are satisfied. First, everyone convicted when the charge chooses a particular alte rnative is treated the same. Second, the reviewing court can be sure that in a jury trial the ju ry had to find that the statutory phrase was satisfied because there was no alternativ e ground available to it; similarly, for a guilty plea. And third, there is no need for judicial factfinding and there can be no unfairness to the defendant when he or she kn ew which statutory phrase formed the basis of the conviction. In this context, there is no need to worry about the Richardson / Schad distinction between means and elements. Perhaps there will be occasions in which some jurors could have convicted under one of the statutory phrases while other jurors convicted under a different phrase. But the Court has not addressed that possibility and we need not predict its analys is to resolve this case. Cf. United States v. Zuniga-Soto , 527 F.3d 1110, 1122 (10th Cir. 2008) (statute’s mens rea component was “grammatically divisible,” but there was no evidence regarding the type of mens rea on which the conviction was based). Moreover, we can think of no be tter shorthand than the word elements to capture the Court’s concerns in explaining the prop er sphere of the modified categorical29 approach. At times (as with the California drug statutes) th e alternative statutory phrases may not be “elements” in the full sense of the term as used in Richardson and Schad , but for the purposes of modified-categorical-a pproach analysis, that “shortcoming” is generally irrelevant. We think that is the th rust of the Court’s response to Justice Alito’s Descamps dissent, in which he argued that the Co urt’s precedents had not required that the alternative statutory phrases be elements in the traditional sense. The Court wrote: [I]f the dissent’s real point is that distinguishing between ‘alternative elements’ and ‘alternative means’ is difficult, we can see no real-world reason to worry. Whatever a statute lis ts (whether elements or means), the documents we approved in Taylor and Shepard

— i.e. , indictment, jury instructions, plea colloquy, and plea agreement—would reflect the crime’s elements. So a court n eed not parse state law in the way the dissent suggests: When a state law is drafted in the alternative, the court merely resorts to the approved documents a nd compares the elements revealed there to those of the generic offense. Descamps , 133 S. Ct. at 2285 n.2. Along the same lines, th e Court later said: A prosecutor charging a violation of a divisible statute must generally select the relevant element from its lis t of alternatives. And the jury, as instructions in the case will make cl ear, must then find that element, unanimously and beyond a reasonable doub t. . . . A later sentencing court need only check the chargi ng documents and instruc tions . . . to determine whether in convicting a defendant unde r that divisible statute, the jury necessarily found that he committed the AC CA-qualifying crime.
Id. at 2290 (citation omitted). This explains , we believe, why no Su preme Court opinion addressing the modified categorical approach has ever found it appropriate to examine whether an alternative statutory phrase is an “element” in the sense of the word used in
Richardson and Schad

.30 5. Alternative Analysis Nevertheless, our conclusion may be wron g. Therefore, we address whether Oklahoma’s general conspiracy statute is divisible even if we have misconstrued Descamps . That is, we inquire whether the object of the conspiracy is an element of the Oklahoma offense in the traditional sense: Must the jury agree unanimously on what crime the conspirators agreed to commit? The question may have a negative answer in some jurisdictions. See e.g. , People v. Vargas , 110 Cal. Rptr. 2d 210, 247 (2001) (“[T]he specific crimes that constitute the object of the conspiracy are not elements of the conspiracy. Rather, they are the means by which the purpose of the conspiracy was to be achieved.”); id. at 245 (“So long as there is unanim ity that crime was the object of the agreement, conspiracy is esta blished regardless of whether so me jurors believe that crime to be murder and others believe that crime to be something else.”). But we answer the question “yes” for this statute. We have not found an opinion by an Okla homa court explicitly stating that the jury must unanimously agree beyond a reason able doubt on the obje ct of the agreement that constitutes the conspiracy. But decisions of the state’s highest criminal court, the Oklahoma Court of Criminal Appeals (OCCA), are suggestive. One opinion said that “[t]he statutory elements of a conspira cy are (1) an agre ement to commit the crime charged and (2) an act by one or more of the parties in furtherance of the conspiracy, or to effect its purpose.” Davis v. State , 792 P.2d 76, 81 (Okla. Crim. App. 1990) (emphasis added). Moreover, a formal charge of conspiracy in Oklahoma must allege the object of31 the conspiracy. See Williams v. State , 182 P. 718, 724 (Okla. Crim. App. 1919) (“[W]here a conspiracy to comm it a crime is charged, it is ne cessary that the information contain, in addition to an a llegation of the conspiracy to commit the particular crime , an allegation of some overt act or acts done in furtherance and pursuance thereof.” (emphasis added)). And the Oklahoma Un iform Jury Instructions, which are “prescribe[d] and institute[d]” by the highes t courts in Oklahoma (the OCCA and the Supreme Court), see Okla. Stat. Ann. tit. 12, § 577.1, st ate, “Where the agreement is to commit an offense that is punishable under the criminal law, the elem ents of that offense must be the subject of a jury instruc tion.” Okla. Unif. Jury Instr. CR 2-19 cmt. We agree with the Fourth Circuit that to determine the elements of an offense, we should “consider how [the state’ s] courts generally instruct juries with respect to that offense.” United States v. Royal , 731 F.3d 333, 341 (4th Ci r. 2013) (referring to courtapproved instructions to determine whether “‘offensive physical contact’ and ‘physical harm’ are alternative elements of the comple ted battery form of second-degree assault”);
see also Denson , 728 F.3d at 612 (examining Ohio pattern jury in struction stating that “[t]he court must instruct the jury on the elements of the app licable offense of violence as charged in the indictment” to determine that Ohio inciting-to-violen ce statute is divisible (internal quotation marks omitted)). Based on the above Oklahoma authority, it appears that an Oklahoma jury must agree unanimously on the crime the defendant has conspired to commit.32 Also supporting our conclusion is the Supreme Court’s analysis in Richardson , which had to decide what the elements are of the federal c ontinuing-criminal-enterprise (CCE) statute. See 526 U.S. at 815. That statute requires the government to prove that the defendant violated a federal drug law a nd that “such violatio n [was] a part of a continuing series of violations.” Id. (internal quotation marks omitted). The question before the Court was whether the specific prio r violations establishing the series were elements of the charged offense requiring juror unanim ity. That is, did the jurors have to agree unanimously on each of th e prior violations or could they simply agree that there had been a series of violations? See id. at 816. The Court held, as a matter of statutory interpretation, that the vi olations were elements. See id. at 819. It relied in part on the “statute’s breadth,” which “aggr avate[d] the dangers of unfa irness” that would arise from treating the violations simply as alternative means. Id. Because the statute crossreferenced a large number of other criminal of fenses (all the drug offe nses), not requiring juror unanimity could lead to two potential problems. See id. First, jurors could widely disagree about what the defendant actually did or did not do because the possible violations ranged from “simple possession [of a drug]” to “endangering human life [while unlawfully manufacturing a drug].” Id. Second, lack of a requirement of agreement “aggravates the risk” that jurors woul d not focus on factual detail and “simply conclude[e] from testimony, say, of bad reputation, that where there is smoke there must be fire.” Id.33 Although the Supreme Court’s interpretation of a federal statute is not controlling in determining how Oklahoma wo uld interpret its state law, the Court’s analysis is persuasive. If an Oklahoma jury were perm itted to convict a defendant for conspiracy without agreeing on the object of that conspira cy, it is likely that similar unfairness could occur. The Oklahoma conspiracy statute refe rs to an even broader range of underlying criminal activity than the CCE statute, and a jury that did not have to reach unanimity on the conspiratorial object could convict while holding starkly divergent views of the seriousness of the offense. We conclude that even if the Supreme Court was using the term elements in its traditional sense, Oklahoma’s conspiracy statut e is divisible and the modified categorical approach is appropriate. Finally, Defendant argues that it is unfair to use the modified categorical approach to examine his conspiracy conv iction because he and “the ot her involved parties treated [the] crime outside the drug statutes,” Aplt. Br. at 52, by charging him under the general conspiracy statute, Okla. Stat. Ann. tit. 21, § 421(A), rather than under the conspiracy statute restricted to drug offenses, see Okla. Stat. Ann. tit. 63, § 2-408 (1989). But there can be no doubt that he pleade d guilty to an offense that sa tisfied the requirements of the ACCA. Even if he did not anticipate this c onsequence of his conviction (and we have no evidence on that one wa y or the other), we see no unfairne ss. He knew the elements of the crime he was pleading guilty to, and that is the only fairness consideration discussed
in Descamps

.34 Because Defendant had been convicted of three previous “serious drug offenses,” the sentence enhancement under the ACCA was proper.

III. CONCLUSION We AFFIRM Defendant’s conviction and sentence.12-6283 – United States v. Trent SEYMOUR , Circuit Judge, concurring: I join the opinion ex cept for Section II(F)(4).