21 U.S.C. § 844(c) Requires the Categorical Approach—But Unsettled Circuit Law Defeats Plain-Error Relief

I. Introduction

In United States v. Arnett (10th Cir. July 14, 2026), the Tenth Circuit reviewed a 77-month sentence imposed after a jury convicted Glen Delane Arnett, Jr. of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The case arose from an Oklahoma City traffic stop in which officers observed Arnett sitting on a loaded handgun and later discovered 267 grams of marijuana, a digital scale, and multiple cell phones in the vehicle.

Although the jury acquitted Arnett of drug trafficking (21 U.S.C. § 841(a)(1)) and of possessing a firearm in furtherance of a drug-trafficking crime (18 U.S.C. § 924(c)(1)(A)), the district court applied a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (firearm possessed “in connection with another felony offense”). The “other felony” was treated as recidivist simple possession of marijuana under 21 U.S.C. § 844(a), based on Arnett’s prior Oklahoma drug convictions.

On appeal, Arnett challenged the enhancement on two forfeited theories (thus reviewed only for plain error): (1) the district court improperly treated marijuana possession as a felony under § 844 because § 844(c) requires a categorical approach that his Oklahoma drug priors allegedly could not satisfy; and (2) the district court applied the wrong standard for constructive possession of the marijuana found in the car.

II. Summary of the Opinion

The Tenth Circuit affirmed. It held:

  • Issue 1 (Felony under § 844): The district court erred because § 844(c) calls for the categorical approach, but the error was not “plain” given unsettled circuit law, including two unpublished decisions rejecting categorical analysis for § 844: United States v. Shaw and United States v. Simmons.
  • Issue 2 (Constructive possession standard): The panel assumed the district court may have used an incomplete standard by focusing on knowledge/proximity without expressly finding intent to control the drugs. Even if that was plain error under Henderson v. United States and United States v. Little, Arnett failed to show the error affected substantial rights because the evidence supported intent to exercise control over the marijuana.

III. Analysis

A. Precedents Cited

1. Plain-error framework

The opinion applied the four-part plain-error test as articulated in United States v. Paycer and reinforced in United States v. Romero: the defendant must show (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings. The panel emphasized the rigor of this standard using United States v. McGehee and characterized it as “intentionally difficult” (quoting Paycer). It also relied on United States v. Leffler for the proposition that forfeited arguments rarely succeed.

For what makes an error “plain,” the panel relied on: United States v. Warrington (clear or obvious under well-settled law), United States v. Egli (plainness can arise from on-point Supreme Court/Tenth Circuit precedent or inter-circuit consensus), and United States v. Johnson (157 F.4th 1309) (absence of binding caselaw usually defeats plain error). The court also emphasized that plainness can be established by text alone (United States v. Jones; United States v. Story; United States v. Poe), but only when the issue is beyond “any reasonable dispute” (quoting United States v. Berryhill).

Critically, the panel used Romero (and earlier Tenth Circuit plain-error practice) to hold that unpublished circuit opinions—even if not precedential—can demonstrate the law is not clearly established, thus undermining the “plain” prong.

2. Categorical vs. factual (circumstance-specific) approaches

The categorical approach principles were drawn from the Supreme Court’s modern line: Mathis v. United States (elements-based comparison), Descamps v. United States (categorical limits), and Taylor v. United States (categorical methodology and statutory-interpretation roots). The panel also relied on the Tenth Circuit’s “which approach applies depends on statutory language” rule from United States v. Martinez-Hernandez and United States v. Abeyta.

Arnett’s overbreadth framing referenced controlled-substance mismatch logic as in Johnson v. Barr. For “generalizable principle” on plainness, the panel cited United States v. Venjohn (quoting United States v. Faulkner).

The government’s attempt to analogize to the circumstance-specific approach drew on Nijhawan v. Holder, where the Supreme Court treated “in which the loss exceeds $10,000” as referring to case-specific circumstances rather than elements. The panel rejected that analogy due to textual differences between Nijhawan’s statute and § 844(c)’s “proscribes” phrasing.

3. Section 844 recidivist possession and the Guidelines enhancement

The panel framed § 844(a) as making “recidivist simple possession” potentially punishable by more than one year, invoking Carachuri-Rosendo v. Holder for the proposition that recidivist simple possession may be punishable as a felony under the CSA. It applied the Guidelines definition of “another felony offense” from U.S.S.G. § 2K2.1, cmt. n.14(C).

The sentencing proof standard and use of uncharged “other felony offenses” is consistent with prior circuit practice; the panel cited United States v. Alqahtani for the preponderance standard for the “other felony offense.”

4. Constructive possession standards

The panel grounded constructive possession in Henderson v. United States (“power and intent to exercise control”) and confirmed the Tenth Circuit’s post-Henderson adoption in United States v. Little. It also cited United States v. Johnson (46 F.4th 1183) for the three-part requirement: knowledge, access, and intent.

For the “nexus” requirement where an item could belong to someone else, the panel relied on United States v. Brown and its antecedents (United States v. Reece; United States v. Samora). It used Brown (and an unpublished case, United States v. Judkins) to show how intent can be inferred from circumstances like proximity, visibility, and control over a vehicle.

5. Substantial rights and Guidelines anchoring

For prejudice under plain error, the panel used the en banc standard from United States v. Bustamante-Conchas (quoting United States v. Algarate-Valencia) and clarified the “reasonable probability” benchmark with United States v. Perez-Perez and United States v. Dominguez Benitez. It cited United States v. Trujillo-Terrazas for the “lesser sentence” framing.

Importantly, although it ultimately found no prejudice on the constructive-possession claim, the panel reaffirmed that Guidelines errors ordinarily matter because the range anchors sentencing discretion, relying on Peugh v. United States, Molina-Martinez v. United States, and United States v. Sabillon-Umana. It also rejected “insulation” by a district court’s statement that it would impose the same sentence, citing United States v. Burris.

B. Legal Reasoning

1. The core statutory holding: § 844(c) triggers the categorical approach

The panel’s most consequential legal conclusion is its textual reading of 21 U.S.C. § 844(c), which defines “drug, narcotic, or chemical offense” as “any offense which proscribes” specified drug conduct involving substances prohibited under federal law.

The court reasoned that “proscribes” is synonymous with “prohibits” (citing Black’s Law Dictionary), and therefore functions like the “that prohibits” language in United States v. Herrera-Roldan and United States v. Martinez-Hernandez. In those cases, the Tenth Circuit treated “prohibits” language as directing courts to examine what the statute of conviction criminalizes—i.e., the categorical approach—rather than the defendant’s specific conduct.

The court rejected the government’s contrary position that § 844(c) requires a factual/circumstance-specific inquiry into “what actually happened.” It distinguished Nijhawan v. Holder, emphasizing that Nijhawan involved a monetary threshold (“loss exceeds $10,000”) and lacked “proscribes/prohibits” language tying the inquiry to statutory elements. It also held that the word “any” did not answer the antecedent question (statute vs. facts) and that policy objections to the categorical approach could not override statutory text (even acknowledging critiques in United States v. Adams and collecting criticism as in United States v. Scott (Park, J., concurring)).

2. Why Arnett still lost: “plainness” defeated by unsettled law and unpublished decisions

Having found “error,” the panel turned to whether the error was “plain.” Here the court held Arnett could not satisfy the second prong because the issue was not beyond reasonable dispute given two unpublished Tenth Circuit opinions: United States v. Shaw and United States v. Simmons, both stating that the categorical approach “does not pertain to § 844(a).”

The panel treated those unpublished decisions as sufficient to show the law was “unsettled,” invoking the principle that even unpublished opinions can demonstrate the law is not clearly established (citing Romero, and analogizing to unsettled-law reasoning such as United States v. Whitney and United States v. Randall). This moved the case from “likely error” to “not plainly error” for purposes of forfeiture.

In effect, the court drew a sharp doctrinal line: plainness is not the same as correctness. Even a strong textual argument (and generalizable ACCA precedent) can fail the second prong when intervening or existing circuit signals—though nonprecedential—make the question reasonably disputable.

3. Constructive possession: intent is required, but prejudice must be shown

On the alternative constructive-possession challenge, the panel acknowledged that the district court’s sentencing explanation appeared focused on proximity and awareness and did not expressly mention “intent.” Under Henderson v. United States and United States v. Little, intent is essential to constructive possession. The panel therefore assumed (without deciding) error and found it would be plain.

But the court affirmed because Arnett failed to establish prejudice (third prong). It held that, given the sentencing findings and trial evidence—sole occupant; large and “open and obvious” quantity; close proximity to Arnett and the firearm; and Arnett’s admission that marijuana was in the car—there was no reasonable probability the district court would have found “intent” lacking even if it had articulated the correct legal test. The panel supported this inference-driven approach with United States v. Rufai (intent inferred from circumstances) and analogized to constructive possession sufficiency analyses such as Brown.

Notably, the panel also clarified what does not defeat substantial-rights analysis: it rejected the government’s reliance on the district court’s statement that it would have imposed the same sentence even without the enhancement, reiterating that Guidelines ranges anchor sentencing discretion (Peugh; Molina-Martinez; Sabillon-Umana) and that “same sentence anyway” statements do not “insulate” errors (Burris). Arnett lost not because such statements are dispositive, but because the evidentiary record made a different outcome unlikely.

C. Impact

1. Prospective rule: § 844(c) is categorical in the Tenth Circuit

Although the panel affirmed on plain-error grounds, the published opinion’s first-prong analysis squarely interprets § 844(c) as requiring the categorical approach. As a practical matter, this gives litigants a roadmap (and district courts a directive) for future cases: when § 844(a)’s recidivist feature is used to supply “another felony offense” for U.S.S.G. § 2K2.1(b)(6)(B), courts should evaluate the state predicates categorically against § 844(c)’s definition.

2. Forfeiture consequences: plain-error review will remain a high wall

Arnett underscores a recurring appellate reality: even where an appellant can show the district court was wrong, the second prong can defeat relief if the question was not “beyond any reasonable dispute” at the time of appeal—especially when there are intra-circuit signals (including unpublished cases) pointing the other way. The case therefore incentivizes timely, specific objections at sentencing, particularly when enhancements rely on predicate convictions and categorical analysis.

3. Sentencing practice: constructive possession disputes will pivot on “intent” evidence

The opinion reinforces that post-Henderson, constructive possession requires intent—and that district courts should ideally make explicit intent findings where contraband could plausibly belong to someone else. Yet it also shows how “intent” can be established inferentially from routine traffic-stop facts (visibility, quantity, sole occupancy, admissions), and how that record can defeat prejudice on plain-error review.

IV. Complex Concepts Simplified

  • Plain error: A narrow appellate safety valve for issues not raised below. Even if a judge made a mistake, the appellant must show it was obviously wrong under settled law and that it likely changed the outcome.
  • U.S.S.G. § 2K2.1(b)(6)(B): A four-level increase for possessing a firearm “in connection with” another felony. The “other felony” need not be charged or proven beyond a reasonable doubt; it is generally found at sentencing by a preponderance.
  • Recidivist simple possession (§ 844): Simple possession is typically a misdemeanor, but prior qualifying drug convictions can raise the maximum above one year—making it a “felony” for Guidelines purposes.
  • Categorical approach: The court compares the elements of the prior conviction’s statute to the federal definition—ignoring what the defendant actually did. If the state statute covers more conduct or more substances than the federal definition, it may not qualify.
  • Constructive possession: You can “possess” something without holding it. But after Henderson, constructive possession requires both the power and the intent to control the item—not merely being near it or knowing it exists.

V. Conclusion

United States v. Arnett is a sentencing decision with outsized doctrinal significance. The panel’s published analysis reads 21 U.S.C. § 844(c) to require the categorical approach—a holding that will shape how recidivist simple possession is litigated when used as “another felony offense” under U.S.S.G. § 2K2.1(b)(6)(B). Yet Arnett also serves as a cautionary tale: on plain-error review, correctness may not be enough. The presence of nonprecedential but contrary circuit authority can render even a strong statutory-text argument insufficiently “plain,” and a failure to develop objections below can be fatal.