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United States v. Degeare

United States Court of Appeals, Tenth Circuit

March 13, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JOSEPH R. DEGEARE, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Oklahoma (D.C. Nos. 5:16-CV-00648-C and 5:13-CR-00283-C-1)

          Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender with him on the briefs), Denver, Colorado, for Defendant-Appellant.

          Ashley Altshuler, Assistant United States Attorney (Mark A. Yancey, United States Attorney with her on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

          Before HOLMES, MATHESON, and MORITZ, Circuit Judges.

          MORITZ, Circuit Judge.

         Under the Armed Career Criminal Act (ACCA) of 1984, 18 U.S.C. § 924(e), an offender convicted of violating 18 U.S.C. § 922(g)(1) faces an enhanced prison sentence if he or she has at least three prior convictions for violent felonies or serious drugs offenses. In theory, deciding what offenses constitute violent felonies should be simple enough. But in practice, it can be a tricky business-especially because we must be "certain" that the violent-felony moniker "necessarily" applies to a particular offense before we can treat that offense as an ACCA predicate. United States v. Titties, 852 F.3d 1257, 1268 (10th Cir. 2017) (quoting United States v. Huizar, 688 F.3d 1193, 1195 (10th Cir. 2012)).

         We haven't yet addressed the precise level of certainty this standard requires. We need not do so today. Whatever the term "certainty" might mean, id. (quoting Mathis v. United States, 136 S.Ct. 2243, 2257 (2016)), it doesn't encompass the significant doubt we're left with here. And because we can't be "certain" that the offense at issue in this appeal is "necessarily" a violent felony, id., we conclude that the district court erred in treating it as one for purposes of denying Joseph Degeare's 28 U.S.C. § 2255 motion. Accordingly, we reverse.

         Background

         In 2014, Degeare pleaded guilty to being a felon in possession of a firearm, see § 922(g)(1), and the sentencing court imposed a 15-year prison sentence under the ACCA, see § 924(e)(1) (imposing mandatory minimum prison sentence of 15 years for § 922(g)(1) conviction if offender has at least "three previous convictions . . . for a violent felony or a serious drug offense"). In doing so, the sentencing court treated five of Degeare's previous Oklahoma convictions as ACCA predicates: (1) his 1990 conviction for forcible sodomy, see Okla. Stat. Ann. tit. 21, § 888 (1982); (2) his two 1994 convictions for forcible sodomy, see id. § 888 (1992); (3) his 1994 conviction for lewd molestation of a minor, see id. § 1123 (1992); and (4) his 2003 conviction for possession with intent to distribute, see Okla. Stat. Ann. tit. 63, § 2-401 (2002).

         Degeare didn't appeal. But in 2015, he sought habeas relief under § 2255. After the district court denied his § 2255 motion, Degeare filed an untimely notice of appeal. We dismissed, and the Supreme Court denied review.

         Relying on Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), Degeare then sought and received authorization to file a second or successive § 2555 motion. See § 2255(h)(2); 28 U.S.C. § 2244(b)(3)(C). In that motion, Degeare argued that the sentencing court erred in treating four of his previous convictions as ACCA predicates: (1) his 1990 conviction for forcible sodomy, (2) his two 1994 convictions for forcible sodomy, and (3) his 1994 conviction for lewd molestation of a minor. Specifically, Degeare asserted that forcible sodomy and lewd molestation only constitute violent felonies under the ACCA's residual clause, see § 924(e)(2)(B)(ii), which the Supreme Court struck down as unconstitutionally vague in Johnson, see 135 S.Ct. at 2563; Welch, 136 S.Ct. at 1265 (holding that rule announced in Johnson applies retroactively to cases on collateral review). After Johnson and Welch, Degeare insisted, only his 2003 conviction for possession with intent to distribute remains an ACCA predicate, thus rendering the ACCA's sentencing enhancement inapplicable. See § 924(e)(1) (requiring at least "three previous convictions . . . for a violent felony or a serious drug offense" to trigger enhancement).

          The government didn't dispute that Degeare's 1990 forcible-sodomy conviction and 1994 lewd-molestation conviction no longer qualify as ACCA predicates after Johnson and Welch. But it maintained that Degeare nevertheless isn't entitled to relief. In support, it asserted that although Degeare's two 1994 convictions for forcible sodomy no longer trigger the enhancement under the ACCA's now-defunct residual clause, see § 924(e)(2)(B)(ii), those convictions are for offenses that nevertheless remain violent felonies under the ACCA's elements clause, see § 924(e)(2)(B)(i) (defining violent felony, in relevant part, as an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another"); Johnson, 135 S.Ct. at 2563 ("Today's decision does not call into question . . . the remainder of the [ACCA's] definition of a violent felony."). Accordingly, the government maintained, Degeare continues to have three convictions for violent felonies or serious drug offenses, thus rendering harmless any Johnson error the sentencing court committed by relying on the ACCA's residual clause.

         The district court agreed. First, it concluded that Oklahoma's forcible sodomy statute is divisible because it describes three separate offenses. Second, it determined that Degeare specifically pleaded guilty to violating § 888(B)'s third subsection, which prohibits "sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime." § 888(B)(3). Finally, it ruled that this particular subsection of Oklahoma's forcible-sodomy statute constitutes a violent felony under § 924(e)(2)(B)(i)'s elements clause, thus rendering harmless any Johnson error. Accordingly, the district court denied Degeare's § 2255 motion. Degeare appeals.

         Analysis

         We review de novo the district court's conclusion that Degeare's 1994 convictions for forcible sodomy constitute ACCA predicates. See United States v. Ridens, 792 F.3d 1270, 1272 (10th Cir. 2015). In arguing they do not, Degeare advances four separate arguments. But to resolve this appeal, we need address only one: his assertion that § 888 isn't divisible.

         The parties disagree on this point. But before we resolve their disagreement, it's worth noting a few areas where the parties' positions overlap. First, neither party disputes that Degeare is only subject to the ACCA's sentencing enhancement if he has at least three prior convictions for violent felonies or serious drug offenses. See § 924(e)(1). Likewise, the parties agree that (1) Degeare's 2003 conviction for possession with intent to distribute constitutes an ACCA predicate and (2) his 1990 forcible-sodomy conviction and his 1994 lewd-molestation conviction do not. Finally, the parties agree that if § 888 isn't divisible, then Degeare's 1994 convictions for forcible sodomy don't constitute ACCA predicates-a conclusion that would require us to reverse the district court's order denying his § 2255 motion. In other words, the parties agree that if we conclude § 888 isn't divisible, that conclusion is dispositive of this appeal.

         To understand why the parties agree on this last point, some background information is helpful. As explained above, Degeare is only subject to the ACCA's sentencing enhancement if his 1994 convictions for forcible sodomy constitute violent felonies under the elements clause. And in determining whether an offense constitutes a violent felony under the ACCA's elements clause, courts use one of two methods: (1) the pure categorical approach or (2) the modified categorical approach. Under the pure categorical approach, we examine the statute-and only the statute-and ask whether "it can be violated without the 'use, attempted use, or threatened use of physical force.'" Titties, 852 F.3d at 1273 (quoting § 924(e)(2)(B)(i)). If so, "then any conviction under that statute will not count toward an ACCA enhancement" under the elements clause. Id. at 1265; see also United States v. Hammons, 862 F.3d 1052, 1054 (10th Cir. 2017) (explaining that "we look to the least of the acts criminalized by" statute of conviction in determining whether that statute "reaches any conduct" that doesn't satisfy § 924(e)(2)(B)(i)), cert. denied, No. 17-6850, 2018 WL 311855 (U.S. Jan. 8, 2018).

         This pure categorical approach applies to statutes that aren't divisible, i.e., those that contain "a single, indivisible set of elements." Descamps v. United States, 570 U.S. 254, 258 (2013). But if the statute in question is divisible, i.e., if it "contains more than one crime, " then we instead apply the modified categorical approach. Titties, 852 F.3d at 1265. Unlike the pure categorical approach, the modified categorical approach doesn't begin and end solely with our examination of the relevant statute. Instead, "[t]he modified categorical approach allows a court to peer around the statute of conviction and examine certain record documents underlying the defendant's prior offense" to determine which of the statute's alternative crimes the defendant was actually convicted of committing. Id. at 1266. Once we make that threshold determination, we can then apply the categorical approach to the relevant statutory alternative. See id. at 1266-67. That is, we can then ask whether the crime defined by that specific statutory alternative "has as an element the use, attempted use, or threatened use of physical force against the person of another." § 924(e)(2)(B)(i); see also Descamps, 570 U.S. at 257 (explaining that once court "determine[s] which alternative [offense] formed the basis of the defendant's prior conviction, " it "can then do what the categorical approach demands"); United States v. Pam, 867 F.3d 1191, 1206-07 (10th Cir. 2017) (concluding that statute of conviction was divisible; looking to record documents to discern which of statute's alternative offenses formed basis of defendant's convictions; and then asking whether those particular alternatives satisfy elements clause).

         Here, Degeare pleaded guilty to two counts of forcible sodomy, which Oklahoma defined at the relevant time as:

1. sodomy committed by a person over [18] years of age upon a person under [16] years of age; or
2. sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or
3. sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime.

§ 888(B)(1)-(3).

         The government concedes that, under the pure categorical approach, § 888(B) doesn't satisfy the elements clause. This is so, the government says, because neither § 888(B)(1) nor § 888 (B)(2) "has as an element the use, attempted use, or threatened use of physical force against the person of another." § 924(e)(2)(B)(i); see also Titties, 852 F.3d at 1265 (explaining that, under categorical approach, "[i]f 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").

         In light of this concession, we will only affirm the district court's order denying Degeare's § 2255 motion if the government demonstrates that (1) § 888(B) is divisible; (2) Degeare's forcible sodomy convictions arose under § 888(B)(3); and (3) § 888(B)(3) satisfies the elements clause. See United States v. Garcia, 877 F.3d 944, 948 (10th Cir. 2017) (discussing government's burden to demonstrate that Johnson error was harmless); Titties, 852 F.3d at 1272 n.19 (citing government's burden to prove that prior conviction constitutes ACCA predicate). Thus, we turn first-and, as it so happens, last-to the divisibility question. See Titties, 852 F.3d at 1267 (stating that modified categorical approach "has no role to play" if statute isn't divisible (quoting Descamps, 570 U.S. at 264)).

         I. Divisibility and the Mathis Toolbox

         A statute is divisible if it "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis, 136 S.Ct. at 2249. Elements, in turn, "are what the jury must find beyond a reasonable doubt to convict the defendant" or "what the defendant necessarily admits when he [or she] pleads guilty." Id. at 2248. Critically, not all statutory alternatives are elements. Instead, some statutes merely "enumerate[] various factual means of committing a single element." Id. at 2249. And if a statute's alternatives are merely means, as opposed to elements, then the statute isn't divisible and the modified categorical approach doesn't apply. See id. at 2253, 2256 (holding that lower court erred in applying modified categorical approach to statute that contained only alternative means and therefore wasn't divisible).

         Here, neither party disputes that the applicable statute comprises three alternatives. It defines forcible sodomy as:

1. sodomy committed by a person over [18] years of age upon a person under [16] years of age; or
2. sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or
3. sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the ...

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