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 Oklahoma, Oklahoma City, Oklahoma, appearing 

for Defendant-Appellant. 

Steven W. Creager, Special Assistant United States Attorney (Sanford C. Coats, United 

States Attorney and Ashley L. Altshuler, Assistant United States Attorney, with him on 

the brief), Office of the United States Attorney for the Western District of Oklahoma, 

Oklahoma City, Oklahoma, appearing 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
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I. BACKGROUND 

The Armed Career Criminal Act (“ACCA”) 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) previously been convicted at 

least three times in state or federal court of a “violent felony” or “serious drug offense.” 

18 U.S.C. § 924(e)(1). 

This case concerns an equal 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 distribute, 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 Titley pled guilty to being a felon in possession under 

§ 922(g). The district court based Mr. Titley’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” under the ACCA. Although his convictions for 

possession of marijuana with intent 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 should not count because they would not be 

“serious drug offense[s]” had he committed them in 19 other states or the District of 

Columbia. 
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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 argument. Exercising jurisdiction under 28 

U.S.C. § 1291 and 18 U.S.C. § 3742(a), and reviewing 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 challenged ACCA provision is rationally 

 1

 The Fifth Amendment’s Due Process Clause 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 its 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-discriminatory 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 classification or a fundamental right. His counsel 

reiterated at oral argument that rational basis review applies. 

We note the Supreme Court, addressing 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 equal 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. 
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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 question “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 constitutional safeguard is offended only 

if the classification rests on grounds wholly irrelevant 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 negative every conceivable basis which might 

support it.” Heller, 509 U.S. at 320. 

B. Legitimate Government Purpose 

The ACCA’s purpose is to incapacitate repeat offenders who possess a firearm in 

violation of § 922(g) and to deter others from criminal conduct 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 (2008). Mr. Titley has not challenged the legitimacy of 

this purpose. 
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C. Rational Relationship 

We focus on whether the means Congress chose to determine whether a state drug 

offense counts toward an ACCA sentence are rationally related to achieve the ACCA’s 

purpose. 

1. Means to Achieve Purpose 

The first step is to identify 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 manufacture 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 sentence for the offense must be at least ten 

years. See id. If a state drug offense meets these criteria, it qualifies as a “serious drug 

offense” under the ACCA.4

2. Rational Relationship between Means and Purpose 

The next step is to determine whether these means are rationally related to 

incapacitating and deterring repeat offenders. By limiting the definition of “serious drug 

offense” to manufacturing and distribution drug crimes, Congress restricted ACCA 

sentences to defendants previously convicted of more serious offenses than simple drug 

possession. By further limiting “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 contention that “serious drug offense” in 

§ 924(e)(2)(A) is based “purely” on geography. See Aplt. Br. at 7, 13. 
-6- 

manufacturing and distribution offenses with potentially lengthy sentences would qualify. 

Congress appears to have chosen 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 the 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 (10th Cir. 1994), further 

supports a rational basis for § 924(e)(2)(A). Mr. Phelps received an ACCA sentence 

based on three state convictions meeting the 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 person has been pardoned or has had civil rights 

restored.” 18 U.S.C. § 921(a)(20). He argued this exemption discriminated against him 

and others convicted of a § 922(g) offense who had committed their ACCA-qualifying 

violent felonies in states without restoration statutes. We applied 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 prosecution of defendants McKissick and 

Zeigler for drug and gun offenses. When the latter was 17 years old, he was charged in 

Oklahoma state court as an adult and convicted of two drug offenses. The district court 
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in McKissick relied on these two prior Oklahoma drug convictions to add three criminal 

history points each under 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 and 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 that “[a]lthough States have different criteria for determining 

when a juvenile can be charged as an adult, this does not render the sentencing scheme 

irrational any more than does relying on the states’ various definitions of felonies.” Id. at 

1301.

7

 5

 This sentencing guideline, in conjunction with U.S.S.G. § 4A1.1(a) requires 

three criminal history points be added for each prior sentence of imprisonment exceeding 

thirteen months “if the defendant committed the prior offense prior to the age of eighteen 

and ‘the defendant was convicted as an adult and received a sentence of imprisonment 

exceeding one year and one month.’” McKissick, 204 F.3d at 1300 (quoting U.S.S.G. 

§ 4A1.2(d)). 

6

 For drug trafficking cases involving fifty 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 felony drug offense have become final.’” 

McKissick, 204 F.3d at 1300 (quoting 21 U.S.C. § 841(b)(1)(A)). 

7

 In United States v. Lender, 985 F.2d 151(4th Cir. 1993), the Fourth Circuit 

rejected an equal protection challenge to the ACCA’s 18 U.S.C. § 924(e)(2)(B), which 
-8- 

In both Phelps and McKissick, defendants challenged their 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), respectively—rely on state law to define predicate offenses that 

qualify to enhance a defendant’s federal sentence. We applied rational basis review to 

deny the challenge in both instances, 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 drug offense laws, criminal conduct that may qualify as a 

“serious drug offense” in one state may not qualify in another. In other words, Mr. Titley 

contends § 924(e)(2)(A) violates 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 punishable by imprisonment for a term exceeding 

one year.” The Lender court said Congress intended this provision to incorporate state 

law in determining whether offenses committed 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 prior 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 similar 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. 2006) (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)). 
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points out his ACCA sentence rests on two state drug convictions that would not qualify 

had the offenses been committed in 19 other states or the District 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. Town of Opal, Wyo., 706 F.3d 1269, 

1276 (10th Cir. 2013) (“[T]here 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, Congress needs only a rational basis to rely on 

state convictions for a federal sentence enhancement. If state lawmakers prescribe a 

sentence of at least a ten-year maximum for a manufacturing or distribution 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 the purpose of incapacitating repeat offenders 

who violate § 922(g) and deterring 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 burglary “independent of the labels employed by the various 

States’ criminal codes.” Id. at 592. Mr. Titley argues this 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 burglary as a predicate offense in only general 

terms. Second, Mr. Taylor did not allege an equal protection violation, and the Court did 

not consider one. Third, the Taylor Court said, apart from burglary, the ACCA 
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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, Congress acted rationally. A state crime meeting 

these criteria as a qualifying offense for ACCA sentencing enhancement serves the 

legitimate government purpose of incapacitating 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 committing 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 court 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 Supreme Court rejected petitioner’s Taylor 

argument that his state law drug offenses should not qualify for an ACCA sentence. The 

Court distinguished Taylor because “‘burglary’ for purposes of ACCA does not depend 

on the label attached by the law of a particular 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 Nationality Act (“INA”) should look 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 specifically 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.