PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOHN ERVIN TITLEY, Defendant - Appellant. No. 13-6245

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:13-CR-00082-D-1)
William P. Early, Assistant Federal Public Defender, Office of the Federal Public Defender for the Western District of Okla homa, Oklahoma City, Oklahoma, appearing for Defendant-Appellant. Steven W. Creager, Special A ssistant United States Attorney (Sanford C. Coats, United States Attorney and Ashley L. Altshuler, A ssistant United States Attorney, with him on the brief), Office of the United States Attorn ey for the Western District of Oklahoma, Oklahoma City, Oklahoma, appear ing for Plaintiff-Appellee.

Before MATHESON, PHILLIPS , and MORITZ , Circuit Judges.

MATHESON , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### November 4, 2014
Elisabeth A. Shumaker Clerk of Court-2- I. BACKGROUND The Armed Career Criminal Act (“AC CA”) requires a minimum mandatory 15-year sentence for a defendant who has (1 ) been convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) and (2) prev iously been convicted at least three times in state or federal court of a “violent felony” or “s erious drug offense.”
18 U.S.C. § 924(e)(1). This case concerns an equa l protection challenge to the provision in the ACCA that defines a “serious drug offense” to include a state crime for “manufacturing, distributing, or possessing with intent to dist ribute, 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). Defendant John Ervin Title y pled guilty to being a felon in possession under § 922(g). The district court based Mr. Title y’s 15-year ACCA sentence on his previous three state felony convictions. Mr. Titley agrees his conviction for armed robbery in Missouri qualifies as a “violent felony” und er the ACCA. Although his convictions for possession of marijuana with in tent to distribute in Arkansas and unlawful possession of marijuana with intent to distribute in Oklahoma otherwise qualify for the ACCA enhancement, he argues these crimes s hould not count because they would not be “serious drug offense[s]” had he committed them in 19 other states or the District of Columbia.-3- At his sentencing, Mr. Titley argued the ACCA’s partial reliance on state law in § 924(e)(2)(A) to define a “serious drug offense” violates Fifth Amendment equal protection. 1 The district court rejected this ar gument. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S. C. § 3742(a), and review ing the issue de novo, see United States v. Phelps , 17 F.3d 1334, 1337 (10th Cir. 1994), we affirm. 2
II. DISCUSSION A. Rational Basis Review The parties agree we should apply rational basis review to the equal protection claim. 3 We therefore address whether the ch allenged ACCA provision is rationally

1 The Fifth Amendment’s Due Process Cl ause and the Fourteenth Amendment’s Equal Protection Clause provide generally the same equal protection to individuals against federal and state government interference, respectively. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954); Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 225 (1995); Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).

2 Neither party clearly analyzes whether the alleged discrimination arises from disparate treatment (i.e., does the ACCA by it s terms treat individuals differently based on a particular characteristic?), or disparate impact (i.e., does the ACCA adversely affect a particular group even though it is non-discri minatory on its face?). Because the parties agree rational basis is the proper standard of review, we need not answer this question.

3 Mr. Titley has not argued in the district court or this court for heightened equal protection scrutiny based on a suspect classifi cation or a fundamental right. His counsel reiterated at oral argument that rational basis review applies. We note the Supreme Court, addressi ng an equal protection challenge to a sentencing scheme, said that , following a conviction, a defendant is not entitled to heightened scrutiny based on a liberty interest and that rational basis is the proper standard of review. See Chapman v. United States , 500 U.S. 453, 465 (1991). Our cases also support rational basis review of eq ual protection challenges in the sentencing context. See United States v. McKissick , 204 F.3d 1282, 1301 (10th Cir. 2000); Phelps , 17 F.3d at 1343-44.-4- related to a legitimate government purpose. See Hodel v. Indiana , 452 U.S. 314, 331 (1981); City of New Orleans v. Dukes , 427 U.S. 297, 303 (1976). Under rational basis review, the law in qu estion “is accorded a strong presumption of validity.” Heller v. Doe , 509 U.S. 312, 319 (1993). We must deny the challenge “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. (citations omitted). “The constituti onal safeguard is offended only if the classification rests on grounds wholly i rrelevant to the achievement of the State’s objective.” McGowan v. Maryland , 366 U.S. 420, 425 (1961). “The burden is on the one attacking the legislative arrangement to ne gative every conceivable basis which might support it.” Heller , 509 U.S. at 320

. B. Legitimate Government Purpose The ACCA’s purpose is to incapacitate re peat offenders who possess a firearm in violation of § 922(g) and to deter others from criminal condu ct that could lead to an
ACCA sentence. See Taylor v. United States , 495 U.S. 575, 581, 587-88 (1990). The Supreme Court recognized this purpose in a case about the ACCA provision at issue here—§ 924(e)(2)(A)—defining “serious drug offense” under state law. United States v. Rodriquez , 553 U.S. 377, 385 (20 08). Mr. Titley has not ch allenged the legitimacy of this purpose.-5- C. Rational Relationship We focus on whether the m eans Congress chose to determine whether a state drug offense counts toward an ACCA sentence are rationally related to achieve the ACCA’s
purpose. Means to Achieve Purpose 1. The first step is to identif y the means, which are the two criteria in the statute. First, the state conviction must be for drug manufacturing or distribution— “manufacturing, distributing, or possessing with intent to manu facture or distribute a controlled substance.” 18 U.S.C. § 924(e)(2 )(A). A simple drug possession offense does not qualify. Second, the maximum prison sent ence for the offen se must be at least ten
years. See id. If a state drug offense meets these cr iteria, it qualifies as a “serious drug offense” under the ACCA. 4 Rational Relationship betw een Means and Purpose 2. The next step is to determine wheth er these means are rationally related to incapacitating and deterring repeat offenders. By limiting the definition of “serious drug offense” to manufacturing an d distribution drug crimes, Congress restricted ACCA sentences to defendants previously convicted of more serious offen ses than simple drug possession. By further limit ing “serious drug offense” to crimes imposing a maximum prison sentence of at least ten years, Congress ensured that only felony drug

4 These criteria belie Mr. Titley’s cont ention that “serious drug offense” in § 924(e)(2)(A) is based “p urely” on geography. See Aplt. Br. at 7, 13.-6- manufacturing and distribution of fenses with potentially lengthy sentences would qualify. Congress appears to have chos en means that are rationally related to incapacitating and deterring habitual criminals.

a. Precedent The Supreme Court has said as much : “Congress presumably thought— not without reason —that if state lawmakers provide that a crime is punishable by 10 years’ imprisonment, the lawmakers must regard th e crime as ‘serious,’ and Congress chose to defer to the state lawmakers’ judgment.” Rodriquez , 553 U.S. at 388 (emphasis added). Our decision in United States v. Phelps , 17 F.3d 1334 (10t h Cir. 1994), further supports a rational basis for § 924(e)(2)(A). Mr. Phelps received an ACCA sentence based on three state convictions meeting th e ACCA’s definition of “violent felony.” See 18 U.S.C. § 924(e)(2)(B). He pointed to the ACCA provision exempting from “violent felony” status those crimes “for which a pe rson has been pardoned or has had civil rights restored.” 18 U.S.C. § 921(a)(20). He argued this ex emption discriminated against him and others convicted of a § 922(g) offense who had committed their ACCA-qualifying violent felonies in states without restorati on statutes. We applie d rational basis review and rejected his equal protection challenge. We also find support for a rational basis here from our decision in United States v. McKissick , 204 F.3d 1282 (10th Cir. 2000), a pros ecution of defendants McKissick and Zeigler for drug and gun offens es. When the latter was 17 years old, he was charged in Oklahoma state court as an adult and convicte d of two drug offenses. The district court-7- in McKissick relied on these two prior Oklahoma drug convictions to add three criminal history points each unde r U.S.S.G. § 4A1.2(d) 5 and to enhance Mr. Zeigler’s sentence to life imprisonment under 21 U.S.C. § 841(b)(1)(A). 6 He claimed this violated equal protection, arguing “he was treated differently than similarly situated persons because” states differ as to what age a nd what crimes persons under 18 can be prosecuted as adults. Id. at 1301. Relying on Chapman , 500 U.S. at 465, see supra note 3, we denied this challenge under the rational basis standard. 204 F. 3d at 1300-01. We noted that “Congress intentionally left certain aspects of the § 841 enhancements to be triggered by the laws of the states,” and recognized th at “[a]lthough States have di fferent criteria for determining when a juvenile can be charge d as an adult, this does not render the sentencing scheme irrational any more than does relying on the states’ various definiti ons of felonies.” Id . at 1301

. 7

5 This sentencing guidelin e, in conjunction with U.S.S.G. § 4A1.1(a) requires three criminal history points be added for ea ch prior sentence of imprisonment exceeding thirteen months “if the defendant committed th e prior offense prior to the age of eighteen and ‘the defendant was convict ed as an adult and received a sentence of imprisonment exceeding one year an d one month.’” McKissick , 204 F.3d at 1300 (quoting U.S.S.G. § 4A1.2(d)).

6 For drug trafficking cases involving fift y grams or more of cocaine base, this statute “calls for a mandatory life sentence if the defendant committed the instant offense ‘after two or more prior convictions for a fe lony drug offense have become final.’” McKissick , 204 F.3d at 1300 (quoti ng 21 U.S.C. § 841(b)(1)(A)).

7 In United States v. Lender , 985 F.2d 151(4th Cir. 19 93), the Fourth Circuit rejected an equal protection challenge to th e ACCA’s 18 U.S.C. § 924(e)(2)(B), which-8- In both Phelps and McKissick , defendants challenged th eir sentences on equal protection grounds because the sentencing statutes—18 U.S.C. § 924(e)(2)(B) and 21 U.S.C. § 841(b)(1)(A), respectiv ely—rely on state law to defi ne predicate offenses that qualify to enhance a defendant’s federal senten ce. We applied rational basis review to deny the challenge in both inst ances, and we do so again here. 8
b. Rational basis analysis Mr. Titley has not met his burden to show Congress lacked a rational basis for § 924(e)(2)(A). See Heller , 509 U.S. at 319. He argues that, because state legislatures have not enacted identical dr ug offense laws, criminal co nduct that may qualify as a “serious drug offense” in one state may not qua lify in another. In other words, Mr. Titley contends § 924(e)(2)(A) viol ates equal protection because it does not apply uniformly to similarly situated defendants previously convicted of drug offenses in different states. He
defines “violent felony” as “any crime punish able by imprisonment for a term exceeding one year.” The Lender court said Congress intended this provision to incorporate state law in determining whether offenses committe d while the defendant was a juvenile are to be considered predicate offenses under the Act. See 985 F.2d 151, 156 n.*. In McKissick , 204 F.3d at 1301, we quoted Lender : “It is not irrational for Congress to defer to state law with regard to the characteristics of a pr ior offense, and doing so is no more intentionally arbitrary than our system of federalism itself.” Lender , 985 F.2d at 156 n.*.

8 Other circuits have rejected simila r equal protection challenges to federal sentencing provisions that depend at least in part on state criminal law to determine a defendant’s sentence in a federal case. E.g. , United States v. Fink , 499 F.3d 81, 87 (1st Cir. 2007) (challenge to 21 U.S.C. § 841(b)(1)(B)); United States v. Inglesi , 988 F.2d 500, 502-03 (4th Cir. 1993 ) (U.S.S.G. § 4A1.2(d)); United States v. Fair , 194 F. App’x 148, 151-52 (4th Cir. 2 006) (U.S.S.G. § 4B1.1); United States v. Stokes , 351 F. App’x 115, 116-17 (7th Cir. 2009) (21 U.S.C.§ 841(b)(1)(A)).-9- points out his ACCA sentence rests on two st ate drug convictions that would not qualify had the offenses been committed in 19 other states or the Di strict of Columbia. This disparity, he argues, shows § 924( e)(2)(A) lacks a rational basis. But rational basis review does not require uniformity. See Mass. Bd. of Ret. v. Murgia , 427 U.S. 307, 314 (1976); Schanzenbach v. To wn of Opal, Wyo., 706 F.3d 1269, 1276 (10th Cir. 2013) (“[T]h ere need not be a perfect fit between purpose and achievement for a law to pass constitutional muster.”). Although states can and do vary as to whether certain drug manufacturing or distribution activity is a crime carrying a maximum sentence of at least ten years, Cong ress needs only a rational basis to rely on state convictions for a federal sentence enha ncement. If state lawmakers prescribe a sentence of at least a ten-year maximum for a manufacturing or dist ribution drug offense, it is rational for Congress to include such a prior offense as one that qualifies for an ACCA sentence. Doing so contributes to th e purpose of incapacitating repeat offenders who violate § 922(g) and dete rring others from conduct that could lead to an ACCA

sentence. 9

9 Mr. Titley’s reliance on Taylor v. United States , 495 U.S. 575 (1990), is misplaced. In Taylor , the Supreme Court addressed when a state law burglary offense may be used to support an ACCA sentence. The Court held Congress intended a “uniform definition” for burg lary “independent of the la bels employed by the various States’ criminal codes.” Id. at 592. Mr. Titley argues th is holding supports his equal protection argument for a uniform definition of “serious drug offense” to avoid disparities among state laws. We disagree. First, Taylor concerned 18 U.S.C. § 924(e)(2)(B)(ii), which, unlike § 924(e)(2)(A), specified burglar y as a predicate offense in only general terms. Second, Mr. Taylor did not allege an equal protection viola tion, and the Court did not consider one. Third, the Taylor Court said, apart from burglary, the ACCA-10- III. CONCLUSION As noted above, by limiting “serious drug offense” under state law to manufacturing and distribution crimes and by including only those offenses carrying at least a ten-year maximum sentence, Congre ss acted rationally. A state crime meeting these criteria as a qualifying offense for ACCA sentencing enhancement serves the legitimate government purpose of incapac itating repeat offenders who have been convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) and deterring others from committi ng ACCA predicate crimes and a § 922(g) offense. We conclude 18 U.S.C. § 924(e)(2)(A) does not violate equal protection under the Fifth Amendment and affirm Mr. Titley’s sentence as based on the requisite three qualifying offenses under the ACCA.

“generally requires the trial c ourt to look only to the fact of conviction” by examining the state’s “statutory definition of the prior offense.” Id. at 602. Fourth, in United States v. Rodriquez , 553 U.S. 377 (2008), the Supr eme Court rejected petitioner’s Taylor argument that his state law drug offenses s hould not qualify for an ACCA sentence. The Court distinguished Taylor because “‘burglary’ for purpos es of ACCA does not depend on the label attached by the law of a partic ular State,” whereas “serious drug offense” “necessarily depends on state law.” Id. at 387. Mr. Titley’s reliance on Lopez v. Gonzales , 549 U.S. 47 (2006), and Moncrieffe v. Holder , 133 S. Ct. 1678 (2013), is similarly misplaced. In Lopez , the Court addressed whether the Immigration and Na tionality Act (“INA”) should lo ok to state or federal law to determine whether an offense qualified as an “aggravated felony.” 549 U.S. at 57. The Court explained that although Congress could have explicitly relied on state law to classify crimes as aggravated felonies, it did not; therefore, the INA’s definition of aggravated felonies must rely on federal law. Id . at 5. Lopez is distinguishable from our case because, unlike the INA, the ACCA specif ically defines “serious drug offense” by relying, in part, on state law. See 18 U.S.C. § 924(e)(2)(A)(ii). Moncrieffe is distinguishable for the same reason. See 133 S. Ct. at 1692-93.