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United States v. Oliver

United States Court of Appeals, Eleventh Circuit

January 6, 2020

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
NAJEE OLIVER, Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:17-cr-00065-WTM-GRS-1

          Before WILSON, JILL PRYOR, and TALLMAN, [*] Circuit Judges.

          WILSON, Circuit Judge.

         Najee 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.

         I. Background

         Late 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.

         A 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 Three.

         A 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.[1] 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.

         At 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.

         II. Discussion

         Oliver 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.

         We 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).

         A. The ACCA's Elements Clause

         The 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).

         Under 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).

         In 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." Id.

         In a 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.

         B. The Mathis Framework

         Determining 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.

         The 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.

         If the 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 omitted).

         And if 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.

         Accordingly, 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).

         C. Applicability of Greer I

         Before 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.

         In 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)).

         Thus, 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.[2] Therefore, we find that Greer I does not control here.[3]

         D. Divisibility of Georgia's Terroristic-Threats Statute

         Returning 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 provided:

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. ยง 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 ...


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