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United States v. Titties

United States Court of Appeals, Tenth Circuit

March 24, 2017

DAMINION T. TITTIES, a/k/a Damion Tyrone Tittle, a/k/a Damion Tyron Tittles, a/k/a Capone, Defendant-Appellant.


          Michael L. Brooks, The Brooks Law Firm, Oklahoma City, Oklahoma, appearing for Appellant.

          Steven 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 Appellee.

          Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.

          MATHESON, Circuit Judge.

         Damion Tittle[1] 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.

         On 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 resentencing.

         I. BACKGROUND

         In 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 imprisonment." Id.

         The Government argued for an ACCA sentence because Mr. Tittle had three qualifying Oklahoma state convictions:

         1. unlawful distribution of cocaine;

         2. unlawful trafficking in cocaine within 1, 000 feet of a public park; and

         3. feloniously pointing a firearm.

         Mr. 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).

         Deciding 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.

         Mr. Tittle's 1996 firearm conviction was based on Okla. Stat. tit. 21 § 1289.16 (1995).[2] 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 645.

         This 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. Id.

         When 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.

         Because 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.[3]

         The 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.

         Mr. Tittle filed a timely notice of appeal in December 2015. See Fed. R. App. P. 4(b)(1)(A)(i).[4]

         On June 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.


         We 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.

         A. Standard of Review

         Whether 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. 52(b).

         The 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 Hood.[5]

         We need 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 review.

         B. Legal Background

         In this 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.

         1. The ACCA Enhancement

         Absent 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).

         There 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 of another[.]

18 U.S.C. § 924(e)(2)(B)(i).[6] "[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." (quotations omitted)).[7]

         2. The Categorical and Modified Categorical Approaches

         The 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.[8]

         a. The categorical approach

         To 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.

         In 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.").

         "[I]f 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.

         b. The modified categorical approach

         Taylor 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.

         Courts 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.

         Courts 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.[9] 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.

         Thus, "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) (quotations omitted).

         3. Mathis-Means and Elements

         "The 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.

         a. Elements as the key to divisibility

         A 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.").

         In 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.

         If the 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.

         Because 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.").

         b. Separating elements and means

         The Mathis decision identified several tools for deciding whether an alternatively phrased criminal law lists elements or means.

         First, 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.

         Second, state-court decisions may answer the question. "When a ruling of that kind exists, a sentencing judge need only follow what it says." Id.

         Third, when "state law fails to provide clear answers, " federal courts "have another place to look: the record of a prior conviction itself." Id.[10] 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.[11] "Conversely, an indictment . . . could indicate, by referencing one alternative term to the exclusion of all ...

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