United States v. Simmons: Tenth Circuit Clarifies that § 844 Recidivist Felony Possession—Not Subject to the Categorical Approach—Can Support the § 2K2.1(b)(6)(B) Firearm-Drug Enhancement

1. Introduction

United States v. Simmons (10th Cir. Aug. 15, 2025) addresses the recurring question of how courts should determine whether a defendant “possessed a firearm in connection with another felony offense” for purposes of the four-level enhancement in U.S.S.G. § 2K2.1(b)(6)(B). Bobby Dale Simmons, a previously convicted felon, pleaded guilty to unlawful firearm possession under 18 U.S.C. § 922(g)(1). At sentencing, the district court applied the four-level enhancement on the theory that Simmons simultaneously possessed drugs, and—because of his prior drug convictions—that possession constituted a federal felony under 21 U.S.C. § 844(a).

On appeal Simmons argued that (1) the Presentence Report (PSR) referenced only Oklahoma’s simple possession statute (a misdemeanor), and (2) even if § 844 were implicated, the categorical approach used for Armed Career Criminal Act (ACCA) and Guideline “serious drug offense” determinations should apply, rendering § 844 inapplicable. The Tenth Circuit (Judges Tymkovich and Phillips; Judge Moritz dissenting) affirmed, holding that it was not “plain error” for the district court to treat Simmons’s conduct as a § 844 felony and that existing law does not “plainly” require application of the categorical approach to § 844. The dissent would have remanded because the district court never identified § 844 and Oklahoma possession is only a misdemeanor.

2. Summary of the Judgment

Holding: Applying the § 2K2.1(b)(6)(B) enhancement was not plain error where the defendant’s prior state drug convictions converted his current federal drug possession into a felony under 21 U.S.C. § 844(a), and the categorical approach is not “clearly” required for § 844.
Result: Simmons’s 96-month sentence (downward variance from the 120-month Guideline ceiling) was affirmed.
Standard of Review: Plain-error review because Simmons never objected to the enhancement below.
Dissent: Judge Moritz argued that the record indicated reliance on Oklahoma law only (a misdemeanor) and, absent an explicit finding of a felony, remand was required.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

United States v. Romero, 491 F.3d 1173 (10th Cir. 2007): Sets out the four-part plain-error test. The majority faithfully applies these prongs, emphasizing that Simmons failed at the second (“plain”) step.
United States v. Thornton, 846 F.3d 1110 (10th Cir. 2017): Clarifies that an error is “plain” only when contrary to well-settled law—used to show uncertainty about § 844’s relationship to the categorical approach.
United States v. Hooks, 551 F.3d 1205 (10th Cir. 2009): Holds that unobjected-to PSR facts are admitted; supported reliance on Simmons’s prior convictions.
United States v. Shaw, 2023 WL 3335596 (10th Cir. May 10 2023) (unpub.): Persuasively noted that § 844 does not demand a categorical analysis, providing near-on-point circuit guidance.
United States v. Cantu, 964 F.3d 924 (10th Cir. 2020) & United States v. Herrera-Roldan, 414 F.3d 1238 (10th Cir. 2005): Representative ACCA/Guideline cases applying the categorical approach—used by Simmons to argue for its application to § 844, but rejected.
United States v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005) & United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014): Used by the court to discuss prejudice under plain-error review.

3.2 The Court’s Legal Reasoning

PSR Adoption Equals Factual Finding.
Under Fed. R. Crim. P. 32(i)(3) and Hooks, the district court could treat the undisputed PSR facts—including Simmons’s prior drug convictions—as established. Thus, there was a factual predicate for felony recidivist possession under § 844.
Section 844(a) as the Governing Felony.
The federal statute elevates “simple possession” to a felony when a defendant has a prior qualifying drug conviction. Because Simmons had multiple such convictions, his contemporaneous drug possession became a federal felony regardless of state labels.
Categorical Approach Not “Plainly” Required.
The panel noted the absence of Supreme Court or published Tenth Circuit authority imposing a categorical analysis on § 844, and the unpublished Shaw case suggesting the opposite. Without binding precedent, any potential error was not “plain.”
Failure to Object = Plain-Error Review.
Because Simmons raised no § 2K2.1(b)(6)(B) objection below, the burden on appeal was heightened. Even if an error existed, it had to be clear and obvious—which the majority found it was not.

3.3 Impact on Future Litigation and Sentencing Practice

Practical Charging & Sentencing: Prosecutors can cite § 844(a) as an “other felony offense” when a defendant with prior drug convictions is caught with both a firearm and any quantity of controlled substance. The enhancement sharply raises Guideline ranges.
Objection Strategy: Defense counsel must now object expressly if they wish to (i) force the court to identify the specific felony predicate and (ii) argue for the categorical approach. Silence will almost certainly doom an appeal under plain-error review.
Potential Circuit Split: Other circuits (e.g., Fourth & Ninth) sometimes apply a categorical approach to analogous recidivist provisions. Simmons may widen divergence and invite en banc or Supreme Court scrutiny.
Dissent as Roadmap: Judge Moritz’s dissent lays out a future strategy: insist that the district court specify the predicate felony and demonstrate why it qualifies. A clean record could expose whether § 844 truly escapes the categorical approach.
Broader Second-Amendment Context: The panel briefly referenced Vincent v. Bondi, reaffirming § 922(g)(1)’s constitutionality post-Bruen. Simmons thus aligns with a trend of cabining firearms challenges.

4. Complex Concepts Simplified

U.S.S.G. § 2K2.1(b)(6)(B): A sentencing rule adding four offense levels when a defendant who illegally possesses a firearm also commits or intends another felony (commonly drug trafficking or burglary).
21 U.S.C. § 844(a): Federal “simple possession” statute. Ordinarily a misdemeanor, but it becomes a felony for defendants with a prior qualifying drug conviction (“recidivist simple possession”).
Categorical Approach: An analytical method requiring courts to compare statutory elements—not conduct—of prior offenses to a federal definition. If the state statute criminalizes broader conduct than the federal analog, it usually cannot serve as a predicate.
Plain-Error Review: Appellate standard applied when no objection is raised below. The error must be (1) error, (2) obvious (“plain”), (3) affecting substantial rights (usually prejudicial), and (4) undermining the fairness or integrity of judicial proceedings.
PSR (Presentence Report): A probation-officer-prepared document summarizing offense conduct, criminal history, and Guideline calculations. Unobjected-to facts are generally deemed admitted.

5. Conclusion

United States v. Simmons establishes a noteworthy Tenth Circuit precedent: for purposes of the § 2K2.1(b)(6)(B) firearm-drug enhancement, a defendant’s possession of any controlled substance can qualify as an “other felony offense” when prior convictions trigger § 844(a)’s recidivist provision—and courts need not, at least plainly, use the categorical approach to make that determination. The decision reinforces the importance of timely objections and provides prosecutors with a potent tool to increase sentences in firearm-and-drug cases. While the dissent highlights record-clarity and potential misapplication concerns, the majority’s reasoning will govern future Tenth Circuit cases unless overruled en banc or by the Supreme Court, shaping the intersection of drug recidivism and firearm sentencing for years to come.