from the United States District Court for the Southern
District of Georgia D.C. Docket No. 4:17-cr-00065-WTM-GRS-1
WILSON, JILL PRYOR, and TALLMAN, [*] Circuit Judges.
WILSON, Circuit Judge.
Oliver pled guilty to possessing a firearm and ammunition as
a convicted felon under 18 U.S.C. §§ 922(g) and
924(a)(2). Based on his prior convictions, including a prior
Georgia conviction for making terroristic threats under
O.C.G.A. § 16-11-37(a) (2010), Oliver was sentenced
under the Armed Career Criminal Act (ACCA) to 180 months in
prison. On appeal, Oliver argues that his prior conviction
for making terroristic threats is not a predicate violent
felony under the elements clause of the ACCA, 18 U.S.C.
§ 924(e)(2)(B)(i). Because § 16-11-37(a) is
indivisible and overbroad under Mathis v. United
States, 136 S.Ct. 2243, 2249 (2016), a violation of that
statute categorically does not constitute a predicate offense
under the elements clause of the ACCA. Therefore, Oliver does
not have three qualifying predicate offenses, as required to
support the application of the ACCA enhancement, and we
remand to the district court for resentencing.
one evening, an officer from the Savannah-Chatham
Metropolitan Police Department observed Oliver pulling on car
door handles. When the officer approached, Oliver fled, and
the officer followed. During the pursuit, Oliver threw a
firearm and a bag over a fence into a nearby construction
site. Shortly after, the officer apprehended Oliver. Police
then investigated the construction site and recovered a
loaded 9mm Glock pistol, which the police later determined
was stolen in a residential burglary. They also recovered the
bag, which contained 45 grams of marijuana.
federal grand jury indicted Oliver on three felony counts:
possession of a firearm and ammunition by a convicted felon,
in violation of §§ 922(g)(1) and 924(a)(2) (Count
One); possession with intent to distribute a controlled
substance, in violation of 21 U.S.C. § 841(a)(1) (Count
Two); and using and carrying a firearm during and in relation
to the drug trafficking offense charged in Count Two, in
violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three).
Oliver pled guilty to Count One pursuant to a written plea
agreement, and the district court dismissed Counts Two and
probation officer prepared a Presentence Investigation report
(PSI), which stated that Oliver qualified as an armed career
criminal under the ACCA based on two prior convictions for
possession with intent to distribute and his prior Georgia
conviction for making terroristic threats. Based on an
offense level of 30 and a criminal history category of VI,
his initial guideline range was 168-210 months'
imprisonment. But because Oliver qualified as an armed career
criminal, the ACCA mandated a 15-year minimum sentence. The
guideline range was thus 180-210 months.
sentencing, Oliver objected to his armed-career-criminal
status, arguing that his prior Georgia conviction for making
terroristic threats did not qualify as a violent felony for
purposes of the ACCA enhancement. In the PSI, the probation
officer asserted that Oliver's terroristic-threats
conviction "clearly qualified as the 'threatened use
of physical force against the person of another'"
within the meaning of the ACCA. Further, the government
argued that, based on United States v. Greer
(Greer I), 440 F.3d 1267, 1273-74 (11th Cir. 2006),
and the conduct underlying the offense, Oliver's
conviction for making terroristic threats was a violent
felony under the ACCA. The district court overruled
Oliver's objection, applied the ACCA enhancement, and
sentenced Oliver to 180 months' imprisonment.
challenges the district court's determination that a
conviction for making terroristic threats qualifies as a
violent felony under the ACCA's elements clause. He
argues that Georgia's terroristic-threats statute, §
16-11-37(a), can be violated without the use, attempted use,
or threatened use of physical force against the person of
another. Specifically, he argues that the statute can be
violated by threatening to commit "any crime of
violence" against the person or property of
another. Therefore, he asserts, Georgia's statute is
overly broad and encompasses conduct that falls outside of
the ACCA's definition of a violent felony.
review de novo a district court's determination that a
prior conviction qualifies as a violent felony under the
ACCA. See United States v. Howard, 742 F.3d 1334,
1341 (11th Cir. 2014).
The ACCA's Elements Clause
ACCA imposes a 15-year mandatory-minimum sentence on
defendants who violate § 922(g) and have three prior
convictions for "a violent felony or a serious drug
offense, or both." 18 U.S.C. § 924(e)(1). Under the
elements clause, the ACCA defines "violent felony"
as any crime punishable by a term of imprisonment exceeding
one year that "has as an element the use, attempted use,
or threatened use of physical force against the person of
another." Id. § 924(e)(2)(B)(i).
this provision, "use" requires active employment of
physical force. Leocal v. Ashcroft, 543 U.S. 1, 9
(2004). The Supreme Court has clarified that "the phrase
'physical force' 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).
determining whether a state conviction qualifies as a violent
felony under the ACCA's elements clause, we employ a
"categorical approach," examining only "the
elements of the statute of conviction, not the specific
conduct of a particular offender." United States v.
Davis, 875 F.3d 592, 597 (11th Cir. 2017) (alteration
accepted) (internal quotation marks omitted). Because an
examination of the state conviction does not involve an
analysis of its underlying facts, we must presume that the
conviction rested upon the "least of the acts
criminalized" by the statute. Moncrieffe v.
Holder, 569 U.S. 184, 190-91 (2013) (alteration
accepted) (internal quotation mark omitted). If the
"least of the acts criminalized" by the statute of
conviction has an element requiring "the use, attempted
use, or threatened use of physical force against the person
of another," then the offense categorically qualifies as
a violent felony under the ACCA's elements clause.
Davis, 875 F.3d at 597. "If not, that is the
end of our inquiry and the prior conviction does not count as
a violent felony under the elements clause."
narrow range of cases, however, the statute of conviction is
"divisible," which makes comparison of the elements
more difficult. A divisible statute "lists multiple,
alternative elements," which "effectively creates
several different crimes." Descamps v. United
States, 570 U.S. 254, 264 (2013) (alteration accepted)
(internal quotation mark omitted). For example, a divisible
burglary statute might state that "burglary involves
entry into a building or an automobile."
Id. at 257. When faced with an offense from a
divisible statute, we must employ the "modified
categorical approach" to determine "which crime in
the statute formed the basis of the defendant's
conviction." Davis, 875 F.3d at 597. Under the
modified categorical approach, a "court looks to a
limited class of documents . . . to determine what crime,
with what elements, a defendant was convicted of."
Mathis, 136 S.Ct. at 2248.
whether a statute is indivisible or divisible is not always a
simple task. Sometimes, a statute may appear to describe
alternative "elements"- that is, the
"'constituent parts' of a crime's legal
definition," which the prosecution must prove to obtain
a conviction-but it actually describes alternative
"means." Cintron v. U.S. Att'y Gen.,
882 F.3d 1380, 1384 (11th Cir. 2018). "Means," by
contrast, are merely "various factual ways of committing
some component of the offense [and] a jury need not find (or
a defendant admit) any particular item."
Mathis, 136 S.Ct. at 2249. This determination makes
a difference: If a statute lists alternative means, rather
than alternative elements, and any one of those means
"would not constitute [a violent felony], then the
statute is indivisible and categorically cannot constitute a
[a violent felony under the ACCA]." See
Cintron, 882 F.3d at 1384.
Supreme Court in Mathis set forth a framework for
determining whether an alternatively phrased statute sets
forth elements or means. The Supreme Court instructed courts
to consult "authoritative sources of state law,"
including the language of the statute itself, pertinent state
court decisions, and-if state law fails to provide clear
answers-record documents from the defendant's own prior
conviction. Mathis, 136 S.Ct. at 2256. As to a
statute's text, the "statutory alternatives [may]
carry different punishments," which would indicate that
they were elements. Id. On the other hand, the
alternatives may be "drafted to offer 'illustrative
examples, '" in which case the alternatives would be
different means of committing the offense. Id.
Finally, "a statute may itself identify which things
must be charged (and so are elements) and which need not be
(and so are means)." Id.
language of the statute does not resolve the question,
"a state court decision may." Cintron, 882
F.3d at 1385 (citing Mathis, 136 S.Ct. at 2256). For
example, a state court decision may hold that the
alternatively listed items are "alternative methods of
committing one offense, so that a jury need not agree"
on a specific statutory alternative. Cintron, 882
F.3d at 1385 (alteration adopted) (internal quotation mark
the text of the statute and state decisional law is unclear,
"then courts may look to other evidence of state law,
including indictments or jury instructions."
Id. (citing Mathis, 136 S.Ct. at 2256-57).
For instance, if one of these documents includes all the
statutory alternatives or uses a "single umbrella
term," then this indicates that the statute is
indivisible. Mathis, 136 S.Ct. at 2257. On the other
hand, if the indictment or jury instructions reference only
"one alternative term to the exclusion of all others,
[then] the statute contains a list of elements, each one of
which goes toward a separate crime." Id.
we examine these sources of state law to determine whether
Georgia's terroristic-threats statute contains
alternatively listed elements or means and, therefore,
whether it is divisible. Importantly, however, if these
sources of state law "do not 'speak plainly,'
[then we] must resolve the inquiry in favor of
indivisibility." Cintron, 882 F.3d at 1385
(quoting Mathis, 136 S.Ct. at 2257).
Applicability of Greer I
we analyze § 16-11-37(a) under Mathis, we
address the government's argument that this case is
controlled by Greer I. In that case, we held that a
determination of whether a Georgia terroristic-threats
conviction qualifies as a violent felony under the ACCA is a
question for the district court judge, not the jury. The
government contends that we already decided in Greer
I that a Georgia terroristic-threats conviction
qualifies as an ACCA predicate offense. But because
that was not our holding in Greer I, we conclude
that it does not control this appeal.
Greer I, we determined that the district court erred
by refusing to impose an enhanced sentence under the ACCA
based on its determination that "if anything beyond the
conviction itself and the statutory elements had to be
considered in making the violent crime finding, the
Constitution requires that the jury make it."
Id. at 1273. We held that determining the nature of
a prior conviction for ACCA purposes was a determination for
a judge, not a jury, to make. Id. at 1275. To be
sure, Greer I stated that "there was no real
dispute" in the case as to whether Greer's
indictments "proved that [his] three prior convictions
were crimes of violence under the ACCA." Id. at
1273. However, in reaching our conclusion that this
determination rests with the district court judge, we relied
on the district court's characterization of the
defendant's terroristic-threats convictions as violent
felonies. See id. at 1273-74. And because the
defendant in Greer I did not challenge this
determination, we had no occasion to consider the issue
further. Moreover, Greer I's discussion about
the substance of the ACCA determination was tangential to the
primary issue in the case-specifically, if a district court
judge, instead of a jury, can decide whether a
defendant's prior conviction is an ACCA predicate
offense. See id. at 1273; see also Aqua Log,
Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of
Logs, 709 F.3d 1055, 1060 (11th Cir. 2013) ("A
holding is both the result of the case and those portions of
the opinion necessary to that result." (internal
quotation mark omitted)).
we did not decide in Greer I the divisibility of
Georgia's terroristic-threats statute. Further, Greer
I did not explicitly address whether a Georgia
terroristic-threats conviction qualifies as a violent felony
under the ACCA's enumerated-offense clause, elements
clause, or residual clause. Therefore, we find that Greer
I does not control here.
Divisibility of Georgia's Terroristic-Threats
to the framework set forth in Mathis, we now
consider whether Georgia's terroristic-threats statute,
§ 16-11-37(a), is divisible. At the time of Oliver's
conviction, Georgia's terroristic threat statute
A person commits the offense of a terroristic threat when he
or she threatens to commit any crime of violence, to release
any hazardous substance, as such term is defined in [O.C.G.A.
§] 12-8-92, or to burn or damage property with the
purpose of terrorizing another or of causing the evacuation
of a building, place of assembly, or facility of public
transportation or otherwise causing serious public
inconvenience or in reckless disregard of the risk of causing
such terror or inconvenience. No person shall be convicted
under this subsection on the uncorroborated testimony of the
party to whom the threat is communicated.
O.C.G.A. § 16-11-37(a) (2010). Thus, the statute lists
three types of threats that qualify as a violation of the
statute: (1) threats "to commit any crime of
violence," (2) threats "to release any hazardous
substance," and (3) threats "to ...