United States of America v. Darrick Lynn Ferguson, also known as Derrick Lynn Ferguson

United States Court of Appeals
For the Eighth Circuit
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No. 24-2178
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United States of America
Plaintiff - Appellee
v.
Darrick Lynn Ferguson, also known as Derrick Lynn Ferguson
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Northern
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Submitted: September 19, 2025
Filed: January 6, 2026
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Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.
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GRUENDER, Circuit Judge.
Darrick Ferguson was convicted for being a felon in possession of a firearm.
At sentencing, the district court determined that Ferguson qualified for a sentence
enhancement under the Armed Career Criminal Act. On appeal, Ferguson argues
this determination was wrong. We agree. Therefore, we vacate his sentence and
remand for resentencing.

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I. Background
Ferguson pleaded guilty to being a felon in possession of a firearm, a violation
of 18 U.S.C. § 922(g)(1). Ferguson had three prior felony convictions, including
one conviction under Ark. Code Ann. Section 5-64-401(a)(1)(A)(i) (2007) for
delivery of a controlled substance; namely, cocaine. At sentencing, the district court
determined that Ferguson’s three prior felony convictions—including the section 5-
64-401(a)(1)(A)(i) conviction—qualified him for a sentencing enhancement under
18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”).
The ACCA mandates an enhanced sentence of at least fifteen years in prison
for a defendant convicted of being a felon in possession of a firearm who has three
or more prior convictions for a “serious drug offense.” 18 U.S.C. § 924(e)(1). To
qualify as a serious drug offense, an offense under state law must have involved a
controlled substance as defined in § 102 of the Controlled Substances Act (“CSA”).
Id. § 924(e)(2)(A)(ii). The district court determined that Ferguson’s prior Arkansas
conviction under section 5-64-401(a)(1)(A)(i) was a serious drug offense and
therefore that it qualified as a predicate offense for an ACCA enhancement.
Consequently, Ferguson was subject to a mandatory minimum sentence of 180
months’ imprisonment. Without the enhancement, Ferguson would have been
subject to a maximum sentence of 180 months’ imprisonment. See id. § 924(a)(8).
The district court sentenced Ferguson to 180 months’ imprisonment.
Ferguson appeals, arguing that his conviction under section 5-64-
401(a)(1)(A)(i) cannot qualify as a predicate offense for an ACCA enhancement
because section 5-64-401(a)(1)(A)(i) criminalizes cocaine isomers not listed in
§ 102 of the CSA.
II. Analysis
We review de novo whether a prior offense qualifies as a predicate offense
under the ACCA. United States v. Myers, 56 F.4th 595, 597 (8th Cir. 2022). To

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determine whether a prior offense qualifies as a predicate offense, we apply the
“categorical approach.” Shepard v. United States, 544 U.S. 13, 17 (2005). “This
‘categorical approach’ focuses solely on whether the elements of the crime of
conviction match the corresponding federal drug offense.” Myers, 56 F.4th at 597-
98. “If the [prior] state offense sweeps more broadly, or punishes more conduct than
the federal definition, the conviction does not qualify as a predicate offense.” United
States v. Oliver, 987 F.3d 794, 806 (8th Cir. 2021). Thus, if Ferguson’s prior
Arkansas conviction for delivering cocaine was under a provision that criminalizes
substances not listed in § 102 of the CSA, that prior conviction cannot qualify as a
predicate offense for the ACCA enhancement.
Ferguson argues that section 5-64-401(a)(1)(A)(i) criminalizes a wider range
of cocaine isomers than are listed in § 102 of the CSA. Section 102 includes
“[c]ocaine, its salts, optical and geometric isomers, and salts of isomers.” 21 U.S.C.
§§ 802(6), 802(14) (2006, 2009); 21 C.F.R. §§ 1308.02, 1308.12(b)(4) (2007).
Ferguson argues that, unlike § 102, section 5-64-401(a)(1)(A)(i) criminalizes all
cocaine isomers. See Myers, 56 F.4th at 598 (noting that there are positional cocaine
isomers). Thus, he argues his Arkansas conviction under section 5-64-
401(a)(1)(A)(i) cannot qualify as a predicate offense because “a drug statute that
criminalizes even one additional isomer does not qualify as a ‘serious drug
[offense].’” United States v. Owen, 51 F.4th 292, 296 (8th Cir. 2022).
In response, the Government makes three arguments. First, the Government
argues that, like § 102 of the CSA, section 5-64-401(a)(1)(A)(i) only criminalizes
optical and geometric isomers of cocaine. Second, the Government argues that
section 5-64-401(a)(1)(A)(i) is “divisible” with respect to cocaine and its isomers
and, applying the modified categorical approach, Ferguson was convicted of
delivering cocaine, which is listed in § 102 of the CSA. Third, the Government
argues that United States v. Meux, 918 F.3d 589 (8th Cir. 2019) (per curiam) requires
us to hold that a conviction under section 5-64-401(a)(1)(A)(i) is a predicate offense
under the ACCA. We address each argument in turn.

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First, section 5-64-401(a)(1)(A)(i) criminalizes all cocaine isomers, not just
optical and geometric isomers. Section 5-64-401(a)(1)(A)(i) criminalizes certain
conduct related to a “controlled substance classified in Schedule I or Schedule II that
is a narcotic drug.” Both “controlled substance” and “narcotic drug” are terms
defined in the chapter’s definition section. § 5-64-101 (2007). That section defines
“controlled substance” as “a drug, substance, or immediate precursor” listed “in
Schedules I through VI.” § 5-64-101(4) (2007). The section defines “narcotic drug”
as (1) “any drug that is defined as a narcotic drug by order of the director,”1 § 5-64-
101(16)(A)(i) and also (2) an enumerated list of controlled substances, including
“[c]ocaine, its salts, optical and geometric isomers, and salts of isomers.” § 5-64-
101(16)(B)(iv) (2007). Thus, under section 5-64-101(16)(A)(i), the director can
define additional narcotic drugs beyond those contained in the enumerated list.
Arkansas Schedule II, which the director promulgated, lists “cocaine” and its “salts,
isomers, derivatives and salts of isomers and derivatives” as “[n]arcotic [d]rugs.”
Ark. Admin. Code 007.07.02, Sched. II(b)(4) (2005). A state law that criminalizes
the “isomers” of a controlled substance and does not contain any limiting language
criminalizes all isomers of that substance. See, e.g., Owen, 51 F.4th at 296 (holding
Minnesota definition of cocaine overbroad). Therefore, because the Director defined
cocaine’s isomers as a “narcotic drug” without such limiting language, section 5-64-
401(a)(1)(A)(i) criminalizes all of cocaine’s isomers.2
This conclusion aligns with United States v. Buckley, 146 F.4th 679 (8th Cir.
2025). Buckley involved different Arkansas statutes: section 5-64-420(a)(1) (2011)
1 That is, the Director of the Arkansas Department of Health. See § 5-64-
101(3)(B)(i).
2 The Government argues that we should apply a “reasonable probability test”
to assess the scope of section 5-64-401(a)(1)(A)(i). But that test applies only where
a statute is ambiguous, and section 5-64-401(a)(1)(A)(i) unambiguously
criminalizes all cocaine isomers. See United States v. Heard, 62 F.4th 1109, 1114
(8th Cir. 2023) (declining to apply reasonable probability test because the relevant
state statute penalizing “isomers” of a controlled substance without limiting
language was unambiguous).

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and section 5-64-422(a) (2011). See id. at 680. Those statutes criminalized
“cocaine” and not “a controlled substance” or “narcotic drug.” Id. at 681-82.
Because neither statute “mention[ed] the schedules or direct[ed] the reader’s
attention to the schedules for a definition of cocaine,” we did not apply the broader
definition of cocaine contained in the Arkansas drug schedules. Id. at 681. Here,
however, section 5-64-401(a)(1)(A)(i) expressly uses the terms “controlled
substance” and “narcotic drug,” terms which section 5-64-101(a)(1)(A)(i) defines by
referencing the schedules. Therefore, unlike the statutes in Buckley, section 5-64-
401(a)(1)(A)(i) incorporates the drug schedules’ broader definition of cocaine.
Second, the Government argues that section 5-64-401(a)(1)(A)(i) is divisible
with respect to cocaine and its isomers and that we should therefore apply a
“modified” categorical approach that would allow us to look at what substance,
specifically, Ferguson possessed when he was convicted of violating section 5-64-
401(a)(1)(A)(i). See Mathis v. United States, 579 U.S. 500, 505-06 (2016). A statute
is divisible if it “defines more than one crime by listing alternative elements . . . .”
See United States v. Bennet, 972 F.3d 966, 974 (8th Cir. 2020). “‘Elements’ are the
‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must
prove to sustain a conviction.’” Mathis, 579 U.S. at 504 (quoting Black’s Law
Dictionary 634 (10th ed. 2014)). Even if there are alternative ways to violate a
statute, the statute is still indivisible if “those alternatives are not
alternative elements, going toward the creation of separate crimes but are simply
alternative ways or means of satisfying a single element.” United States v. Quigley,
943 F.3d 390, 393 (8th Cir. 2019) (citation modified). Under Mathis, we can
examine the statutory text and structure, review state court decisions, and “peek” at
“the record of a prior conviction itself” for “the sole and limited purpose of
determining” if the statute is divisible. 579 U.S. at 517-19.
We begin with the statutory text and structure and conclude that delivering a
particular isomer of cocaine is merely a means of delivering cocaine—a criminalized
controlled substance. The Arkansas drug schedules include cocaine’s “isomers” in
a list of different physical and chemical forms of cocaine, not as a separate controlled

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substance (or substances). Cocaine—but not any of its isomers—has a controlled
substances number. Ark. Admin. Code 007.07.02, Sched. II(a), (b)(4) (2005). The
most natural interpretation is that alternative forms of cocaine are subsumed in
cocaine, and the delivery of an isomer of cocaine would be prosecuted as a delivery
of cocaine. We have previously described isomers of a controlled substance as
merely different structural forms of the same chemical composition, not different
chemicals altogether. See Myers, 56 F.4th at 598 (citing Owen, 51 F.4th at 295).
The Government relies on the unpublished opinion Prichard v. State, No. CR 89-8,
1990 WL 68646 at *1 (Ark. May 21, 1990) (per curiam), but even if it were
persuasive authority,3 it would be inapposite. Prichard held that section 5-64-401
is divisible with respect to methamphetamine and cocaine, not with respect to
specific chemical forms of cocaine. Id. Therefore, a jury could have convicted
Ferguson of delivering cocaine even if some jurors concluded that he delivered one
type of cocaine isomer while others concluded he delivered another type. See
Mathis, 579 U.S. at 506. Thus, the text and structure of section 5-64-401(a)(1)(A)(i)
support the conclusion that it is indivisible with respect to cocaine and its isomers.
The Government also relies on the Arkansas model jury instructions. But
these are unavailing because they provide blank spaces for the prosecution to fill in
the controlled substance at issue and do not explain the level of generality at which
the prosecution must define that substance. See United States v. Naylor, 887 F.3d
397, 406 (8th Cir. 2018) (en banc) (refusing to rely on model jury instructions
because they were logically consistent with the alternatives at issue being either
means or elements). Finally, the Government also relies on a “peek” at Ferguson’s
record of conviction. The record documents for Ferguson’s conviction state that he
was convicted for delivery of cocaine, but do not specify a chemical or physical form
of cocaine. These documents are equally consistent with both the Government’s and
Ferguson’s theories, so they do not assist us. Therefore, the statute is not divisible
by isomer, and we cannot consider the modified categorical approach.
3 The Arkansas Supreme Court does not permit its unpublished decisions prior
to July 1, 2009 to be cited as precedential except in related or continuing litigation.
Ark. Sup. Ct. R. 5-2(c).

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Third, the Government argues that Meux, 918 F.3d at 590-91 indicates that
Ferguson’s conviction under section 5-64-401(a)(1)(A)(i) is a predicate offense.
But Meux did not address the scope of section 5-64-401(a)(1)(A)(i)’s definition of
cocaine, so Meux does not bind us here. See Streu v. Dormire, 557 F.3d 960, 964
(8th Cir. 2009) (“[W]e are generally not bound by a prior panel’s implicit resolution
of an issue that was neither raised by the parties nor discussed by the panel.”).
III. Conclusion
Because section 5-64-401(a)(1)(A)(i) criminalizes a wider range of cocaine
isomers than § 102 of the CSA, Ferguson’s conviction under section 5-64-
401(a)(1)(A)(i) was not for a “serious drug offense” and did not qualify as a
predicate offense for the ACCA enhancement. As a result, Ferguson did not have
the requisite number of predicate convictions for the ACCA enhancement.4
Because the district court nonetheless applied the enhancement, we vacate his
sentence and remand for resentencing.
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4 Ferguson also argues that a prior residential burglary conviction does not
qualify as a predicate offense for the ACCA sentence enhancement. However,
because we conclude that his conviction under section 5-64-401(a)(1)(A)(i) does not
qualify as a predicate offense and because he only has three prior felony convictions,
we need not address his burglary conviction here.

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