FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. No. 5:15-CR-00018-R-1)
Michael L. Brooks, The Brooks Law Firm, Oklahoma City,
Oklahoma, appearing for Appellant.
W. Creager, Assistant United States Attorney (Mark A. Yancey,
United States Attorney, and Kerry Blackburn, Assistant United
States Attorney, with him on the brief), Office of the United
States Attorney, Oklahoma City, Oklahoma, appearing for
BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.
MATHESON, Circuit Judge.
Tittle pled guilty to violating 18 U.S.C. §
922(g)(1), which bars felons from possessing firearms. This
crime carries a maximum sentence of 10 years, see 18
U.S.C. § 924(a)(2), but the Government argued Mr.
Tittle's sentence should be enhanced under the Armed
Career Criminal Act ("ACCA"), see 18
U.S.C. § 924(e)(1). The enhancement-a mandatory minimum
term of 15 years-applies when a defendant has "three
previous convictions . . . for a violent felony or a serious
drug offense, or both." 18 U.S.C. § 924(e)(1). The
district court concluded Mr. Tittle had three qualifying
offenses and sentenced him to a prison term of 188 months,
more than 15 years.
appeal, Mr. Tittle argues he is not subject to an
ACCA-enhanced sentence because one of his three prior
convictions is not a qualifying offense. We agree. Exercising
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, we vacate his sentence and remand for
August 2015, Mr. Tittle pled guilty to being a felon in
possession of firearms. The written plea agreement specified
that Mr. Tittle faced a penalty "based on the possible
application of [the ACCA]" of "not less than
fifteen years up to life imprisonment." App., Vol. 1 at
45. The agreement further provided that "[i]f [the ACCA]
is found not to apply, the maximum penalty is up to ten years
Government argued for an ACCA sentence because Mr. Tittle had
three qualifying Oklahoma state convictions:
unlawful distribution of cocaine;
unlawful trafficking in cocaine within 1, 000 feet of a
public park; and
feloniously pointing a firearm.
Tittle conceded the two cocaine convictions qualified as
"serious drug offenses" under the ACCA,
see 18 U.S.C. § 924(e)(2)(A), but he argued his
conviction for feloniously pointing a firearm did not
constitute a "violent felony" as defined by the
ACCA, see 18 U.S.C. § 924(e)(2)(B).
whether a prior conviction qualifies as an ACCA predicate
offense requires comparing the crime's elements to the
ACCA. This elements-based comparison is known as the
"categorical approach, " which we discuss in detail
below. Under it, if a crime's elements satisfy the ACCA
definition, the offense counts as an ACCA predicate.
Tittle's 1996 firearm conviction was based on Okla. Stat.
tit. 21 § 1289.16 (1995). We considered this statute in
United States v. Hood, 774 F.3d 638 (10th Cir.
2014), and held it could be violated in both violent and
nonviolent ways. Id. at 646. As such, Hood
said a sentencing court must consult documents from the
record of a defendant's prior conviction under §
1289.16 to discern whether the conviction was violent and
therefore qualifies as an ACCA predicate. Id. at
process of examining the record is known as the
"modified categorical approach." Described more
fully below, this approach looks to the record documents to
identify the relevant elements for the defendant's crime
of conviction. Hood required application of the
modified categorical approach to § 1289.16 convictions.
Hood was decided, the law in our circuit held that
sentencing courts should apply the modified categorical
approach when a defendant's statute of conviction
contained alternative terms, regardless of whether those
terms described different means of committing a single crime
or different elements delineating separate crimes. See
United States v. Trent, 767 F.3d 1046, 1058-61 (10th
Cir. 2014), abrogated by Mathis v. United
States, 136 S.Ct. 2243, 2251 n.1 (2016). In 2016, the
Supreme Court held in Mathis that the distinction
between means and elements is important and that the modified
categorical approach is available only when a statute lists
alternative elements. 136 S.Ct. at 2253.
Mr. Tittle's sentencing occurred in 2015 before
Mathis was decided, the parties and the district
court relied upon Hood. Mr. Tittle argued his §
1289.16 conviction was non-violent and thus not an ACCA
offense. The Government argued Mr. Tittle had violated §
1289.16 in a violent fashion because the factual summary in
his state plea agreement included the following handwritten
statement: "I pointed a weapon at [the victim] and
threatened her life." App., Vol. 1 at 94.
district court followed Hood and applied the
modified categorical approach by examining record materials
from Mr. Tittle's state case to learn how he had violated
§ 1289.16. Based on the handwritten admission in the
plea agreement, the court ruled Mr. Tittle had been convicted
under the violent portion of § 1289.16 and that he
therefore had three qualifying ACCA offenses. Applying the
ACCA enhancement, the court sentenced Mr. Tittle to 188
months in prison.
Tittle filed a timely notice of appeal in December 2015.
See Fed. R. App. P. 4(b)(1)(A)(i).
23, 2016, the Supreme Court decided Mathis, 136
S.Ct. 2243, which the parties have addressed in their briefs.
Mathis's effect on our Hood decision is
the central issue in this appeal.
begin with our standard of review. We then address relevant
case law, including Mathis, on how courts should
determine whether a defendant's past convictions warrant
an ACCA enhancement. Applying the law to Mr. Tittle's
conviction under § 1289.16, we conclude it is not a
qualifying ACCA offense and remand for resentencing.
Standard of Review
a prior conviction satisfies the ACCA's violent felony
definition is a legal question we review de novo. United
States v. Ridens, 792 F.3d 1270, 1272 (10th Cir. 2015).
But we typically review for plain error when on appeal
"a defendant objects to an ACCA enhancement on grounds
different from those presented in the trial court."
Hood, 774 F.3d at 645; see Fed. R. Crim. P.
parties disagree about the standard of review. Mr. Tittle
asserts our review should be de novo because Mathis
had not been decided when he was sentenced and Hood
foreclosed the argument he makes now-that we should apply the
categorical approach to § 1289.16 convictions. See
Hood, 774 F.3d at 645 (holding modified categorical
approach applies to § 1289.16). The Government agrees
that whether a prior conviction qualifies under the ACCA is a
legal question but argues our review should be for plain
error because Mr. Tittle did not object to the district
court's use of the modified categorical approach under
not resolve this dispute. An illegal sentence-one "where
the term of incarceration exceeds the statutory
maximum"-"trigger[s] per se, reversible, plain
error." United States v. Gonzalez-Huerta, 403
F.3d 727, 739 n.10 (10th Cir. 2005) (en banc). As we will
show, Mr. Tittle received an illegal sentence. We would
therefore vacate his sentence under either standard of
section, we (1) describe the ACCA enhancement, (2) explain
the approaches courts use to determine whether a prior
conviction is an ACCA-qualifying offense, and (3) discuss
selection of the applicable approach.
The ACCA Enhancement
an enhancement under the ACCA, "the felon-in-possession
statute sets a 10-year maximum penalty."
Mathis, 136 S.Ct. at 2248 (citing 18 U.S.C. §
924(a)(2)). But the "ACCA prescribes a 15-year mandatory
minimum sentence if a defendant is convicted of being a felon
in possession of a firearm following three prior convictions
for a 'violent felony.'" Id.
"Serious drug offenses" can also count as ACCA
predicate convictions. See 18 U.S.C. §
924(e)(1). Convictions by guilty plea qualify as ACCA
offenses. See Shepard v. United States, 544 U.S. 13,
19 (2005). The government must show a past offense qualifies
as an ACCA predicate. See United States v.
Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012).
is no dispute that Mr. Tittle has two "serious drug
offenses." He is subject to the ACCA's 15-year
mandatory minimum only if his 1996 Oklahoma conviction for
feloniously pointing a firearm under § 1289.16 qualifies
as a violent felony.
The ACCA's "force clause" defines violent
felony as follows:
(B) [T]he term "violent felony"
means any crime punishable by imprisonment for a term
exceeding one year . . . that-
(i) has as an element the use, attempted
use, or threatened use of physical force against the person
18 U.S.C. § 924(e)(2)(B)(i). "[P]hysical force"
in this definition "means violent force- that
is, force capable of causing physical pain or injury to
another person." Johnson v. United
States, 559 U.S. 133, 140 (2010); see also United
States v. King, 979 F.2d 801, 803 (10th Cir. 1992)
("[T]hreatened use of physical force means both an
intent to use force and a communication of that intent."
The Categorical and Modified Categorical
categorical and modified categorical approaches are not
mutually exclusive alternatives. Courts always apply the
categorical approach to determine whether a prior offense
qualifies as an ACCA violent felony by comparing the elements
of the crime of conviction to the ACCA. The modified
categorical approach, by contrast, is not used in every case,
but, when the statute of conviction is divisible in that it
contains more than one crime, the modified categorical
approach reveals the relevant elements for the comparison
under the categorical approach.
The categorical approach
determine whether a prior conviction is categorically an ACCA
violent felony, courts do not consider the facts underlying
the prior conviction, however violent those facts may be.
Instead, the inquiry is whether the crime's elements
satisfy the ACCA's definition of violent felony. If some
conduct that would be a crime under the statute would not be
a violent felony under the ACCA, then any conviction under
that statute will not count toward an ACCA enhancement,
regardless of whether the conduct that led to the
defendant's prior conviction was in fact violent.
Taylor v. United States, 495 U.S. 575 (1990), the
Supreme Court established this elements-based approach to
determine whether a conviction qualifies as an ACCA offense.
The Court said, "Congress intended that the [ACCA]
enhancement provision be triggered by crimes having certain
specified elements." Id. at 588. This
"formal categorical approach" looks to the elements
of the statutes of conviction "and not to the particular
facts underlying those convictions." Id. at
600. A prior conviction is an ACCA predicate only if the
elements of the prior crime necessarily satisfy the ACCA
definition. See Descamps v. United States, 133 S.Ct.
2276, 2281 (2013); see also id. at 2287
("Congress . . . meant ACCA to function as an on-off
switch, directing that a prior crime would qualify as a
predicate offense in all cases or in none.").
the statute sweeps more broadly" than the ACCA
definition-that is, if some conduct would garner a conviction
but would not satisfy the definition-then any
"conviction under that law cannot count as an ACCA
predicate." Id. at 2283; see also
Mathis, 136 S.Ct. at 2251 ("We have often held, and
in no uncertain terms, that a state crime cannot qualify as
an ACCA predicate if its elements are broader than those of a
listed generic offense."). This is so even when the
defendant's conduct leading to the underlying conviction
would satisfy the ACCA's violent felony definition.
"[T]he mismatch of elements saves the defendant from an
ACCA sentence, " Mathis, 136 S.Ct. at 2251,
because "[t]he key . . . is elements, not facts, "
Descamps, 133 S.Ct. at 2283.
The modified categorical approach
left open the possibility that "in a narrow range of
cases" the sentencing court "may . . . go beyond
the mere fact of conviction." 495 U.S. at 602. The
modified categorical approach allows a court to peer around
the statute of conviction and examine certain record
documents underlying the defendant's prior offense, but
this is done only for a limited purpose.
employ the modified categorical approach when a prior
conviction is based on "a so-called 'divisible
statute, '" one that "sets out one or more
elements of the offense in the alternative."
Descamps, 133 S.Ct. at 2281. For these statutes,
"[n]o one could know, just from looking at the statute,
which version of the offense [the defendant] was convicted
of, " and there can be no categorical comparison of
elements when the statute is unclear about which of the
alternative elements formed the basis of the defendant's
conviction. Id. at 2284. For courts faced with a
divisible statute, "the modified approach serves-and
serves solely-as a tool to identify the elements of the crime
of conviction when a statute's disjunctive phrasing
renders one (or more) of them opaque." Mathis,
136 S.Ct. at 2253. Once the relevant elements are identified,
the court applies the categorical approach.
consult record documents from the defendant's prior case
for the limited purpose of identifying which of the
statute's alternative elements formed the basis of the
prior conviction. Descamps, 133 S.Ct. at
2284-85. Although the record may reveal factual
details of the offense, "[a] court may use the modified
approach only to determine which alternative element
in a divisible statute formed the basis of the
defendant's conviction." Id. at 2293
(emphasis added). With the elements (not the facts)
identified, courts "can then do what the categorical
approach demands" and compare those elements to the ACCA
definition. Id. at 2281.
"the modified approach merely helps implement the
categorical approach when a defendant was convicted of
violating a divisible statute." Id. at 2285.
"[I]t preserves the categorical approach's basic
method" of comparing elements to the ACCA, but it
"adds . . . a mechanism" to identify the relevant
elements and thereby facilitates the categorical comparison
"when a statute lists multiple, alternative elements,
and so effectively creates several different . . .
crimes." Id. (second ellipsis in original)
Mathis-Means and Elements
modified approach . . . has no role to play" when the
statute of conviction is indivisible-i.e., when it lacks
alternative elements. Id. at 2285; see also
id. at 2282 ("[S]entencing courts may not apply the
modified categorical approach when the crime of which the
defendant was convicted has a single, indivisible set of
elements."). Thus, choosing the right initial approach
is an essential step and depends on discerning whether the
statute of conviction is "divisible." In
Mathis, the Supreme Court clarified how courts
should take this step.
Elements as the key to divisibility
statute is divisible only if it "sets out one or more
elements of the offense in the alternative."
Id. at 2281 (emphasis added). It is not enough that
a statute is framed in the disjunctive. As the Court stressed
in Mathis, the statutory phrases listed in the
alternative must be elements, not means. Mathis, 136
S.Ct. at 2256; see also United States v. Edwards,
836 F.3d 831, 833 (7th Cir. 2016) ("The Supreme Court
recently clarified that a statute is considered divisible
only if it creates multiple offenses by setting forth
alternative elements."); United States v.
Gardner, 823 F.3d 793, 802 (4th Cir. 2016) ("A
crime is not divisible simply because it may be accomplished
through alternative means, but only when alternative elements
create distinct crimes.").
Mathis, the Supreme Court defined the key
distinction between "elements" and
"means." "Elements are the constituent parts
of a crime's legal definition-the things the prosecution
must prove to sustain a conviction." Mathis,
136 S.Ct. at 2248 (quotations omitted). "[T]hey are what
the defendant necessarily admits when he pleads guilty."
Id. By contrast, means are "various factual
ways of committing some component of the offense."
Id. at 2249. Beyond these definitional differences,
in determining whether a prior conviction is an ACCA offense,
elements matter and means do not. A past conviction counts
"if, but only if, its elements" satisfy the ACCA.
Id. at 2247.
listed items are alternative means of satisfying an element,
then the statute is not divisible and the categorical
approach must be applied. Id. at 2253. If the
alternatives are elements, then the modified categorical
approach should be applied. Id.
the choice of approach hinges on whether the statute is
divisible and because a statute's divisibility depends on
the means/elements distinction, the Supreme Court in
Mathis instructed that a court's "first
task" when "faced with an alternatively phrased
statute is . . . to determine whether its listed items are
elements or means." Id. at 2256; see also
id. at 2248 ("Distinguishing between elements and
facts is . . . central to ACCA's operation.").
Separating elements and means
Mathis decision identified several tools for
deciding whether an alternatively phrased criminal law lists
elements or means.
in some instances, the statute on its face will provide the
answer. Id. at 2256. For example, "[i]f
statutory alternatives carry different punishments, then
under Apprendi [v. New Jersey, 530 U.S. 466
(2000), ] they must be elements." Id.
"Conversely, if a statutory list is drafted to offer
'illustrative examples, ' then it includes only a
crime's means of commission." Id. Or
sometimes the "statute may itself identify which things
must be charged (and so are elements) and which need not be
(and so are means)." Id.
state-court decisions may answer the question. "When a
ruling of that kind exists, a sentencing judge need only
follow what it says." Id.
when "state law fails to provide clear answers, "
federal courts "have another place to look: the record
of a prior conviction itself."
Id. For instance, if an indictment or the
jury instruction includes the statute's alternative
terms, "[t]hat is as clear an indication as any that
each alternative is only a possible means of commission, not
an element." Id. at 2257.
"Conversely, an indictment . . . could indicate, by
referencing one alternative term to the exclusion of all