* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. TRACY ALAN BAKER,

Defendant-Appellant. Nos. 97-5010 & 97-5011 (D.C. Nos. 96-CR-154-C

& 96-CR-18-C) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , andBRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument.-2-

In each of these cases, defendant Tracy Alan Baker was convicted of one count of possession of a firearm after former convi ction of a felony, pursuant to 18 U.S.C. § 922(g). He was sentenced under the Arm ed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to fifteen years on eac h count with the sentences to run concurrently. The sentences were enhanced, pur suant to the ACCA, based on three prior convictions: second degree burglary, s hooting with intent to kill, and unlawful cultivation of marijuana. He appeals the sentences, claiming that his prior conviction for unlawful cultivation of mariju ana does not qualify as a “serious drug offense” as contemplated by § 924(e)( 1) & (2)(A)(ii), and therefore cannot be used to enhance his sentence. We affirm the sentences. We review de novo a sentence enhancement under § 92 4. See United States v. Lujan , 9 F.3d 890, 891 (10th Cir. 1993). Our review inc ludes the entire record and supporting documentation in order to ascertain whether the sentence imposed is authorized. See id. Defendant maintains that the federal sentencing cou rt must examine the facts underlying a state court conviction to determ ine whether it meets the criteria of § 924(e)(1) & (2)(A)(ii) for sentence enhancement under the ACCA. He asserts that he was convicted of the crime of unlaw ful cultivation of marijuana based on his possession of one flowerpot containing three small marijuana plants.-3-

He argues that he was not guilty of a “serious drug offense” for the purpose of enhancing his sentence under the ACCA. We do not examine the underlying facts to determine whether the prior conviction was for a “serious drug offense.” See Taylor v. United States , 495 U.S. 575, 600-02 (1990) (enhancement statute, § 924 (e), requires federal sentencing court to look only at statutory definiti on of prior offense and fact that defendant was convicted); accordUnited States v. King , 979 F.2d 801, 802 (10th Cir. 1992) (“For purposes of § 924(e), the courts d o not inquire into the particular factual circumstances surrounding the past offenses .”). Instead, we must evaluate whether the relevant state statute meets the requir ements of § 924(e)(2)(A)(ii). See United States v. McMahon , 91 F.3d 1394, 1398 (10th Cir.), cert. denied , 117 S. Ct. 533 (1996). The ACCA provides for an enhanced sentence for a pe rson who violates 18 U.S.C. § 922(g) and has three previous convictio ns for “a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e) (1). A “‘serious drug offense’ means . . . an offense under State law, involving m anufacturing, distributing, or possessing with intent to manufacture or distribute , a controlled substance . . ., for which a maximum term of imprisonment of ten years o r more is prescribed by law.” Id. § 924(e)(2)(A)(ii). The relevant Oklahoma state s tatute provides, “[i]t shall be unlawful for any person to cultivate or pr oduce, or to knowingly permit-4-

the cultivation, production, or wild growing of anyspecies of such plants [including marijuana]. . . .” Okla. Stat. tit. 63, § 2-509(B). A violation of that provision is a felony punishable by a fine “and imp risonment in the State Penitentiary for not less than two (2) years nor mo re than life.” Id. § 2-509(D). We conclude that the elements of the Oklahoma statu te under which defendant was convicted satisfy the ACCA’s definiti on of “a serious drug offense,” as set forth in § 924(e)(2)(A)(ii). Eventhough the Oklahoma statute does not prohibit “manufacturing” marijuana, but rather prohibits “cultivation” and “production,” this court has held that “manufac turing” includes “production” and “cultivation.” See United States v. Wood , 57 F.3d 913, 918, 919 (10th Cir. 1995). The relevant Oklahoma statute also provides for a life term as the maximum imprisonment, thus meeting the ACCA’s requi rement that the maximum term of imprisonment be ten years or more. Defendant’s sentences are AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge