United States v. Hamilton

889 F.3d 688

UNITED STATES of America, Plaintiff–Appellant,

v.Raymond Mark HAMILTON, Defendant–Appellee.

No. 17-5035

United States Court of Appeals, Tenth Circuit.

May 4, 2018

William A. Glaser, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C. (R. Trent Shores, United States Attorney, Leena Alam, Assistant United States Attorney, Tulsa, Oklahoma; Kenneth A. Blanco, Acting Assistant Attorney General, Trevor N. McFadden, Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C., with him on the briefs), for Plaintiff–Appellant.

Barry L. Derryberry, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Tulsa, Oklahoma, for Defendant–Appellee.

Before BRISCOE, LUCERO, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

This appeal grew out of the sentencing of Mr. Raymond Hamilton for possession of a firearm after a felony conviction. See 18 U.S.C. 922(g)(1). Mr. Hamilton was sentenced to 190 months' imprisonment under the Armed Career Criminal Act (ACCA) based in part on three Oklahoma convictions for second-degree burglary. Mr. Hamilton moved to vacate his sentence under 28 U.S.C. § 2255, arguing that the district court had improperly applied a mandatory minimum based on the ACCA's unconstitutional Residual Clause. The district court granted the motion and resentenced Mr. Hamilton to time served. The government appeals, and we affirm.

I. Mr. Hamilton's Prior Convictions

If a defendant has three prior convictions for violent felonies, the ACCA creates a mandatory minimum sentence of 15 years' imprisonment. 18 U.S.C. § 924(e)(1).

Mr. Hamilton had seven prior felony convictions:

1. a 1975 Louisiana conviction for burglary,

2. a 1975 Oklahoma conviction for second-degree burglary,

3. a second Oklahoma conviction for second-degree burglary in 1975,

4. a 1978 Oklahoma conviction for robbery with firearms,

5. a 1991 California conviction for assault with a deadly weapon,

6. a 1993 California conviction for driving under the influence, and

7. a third Oklahoma conviction for second-degree burglary in 2005.

The resulting issue is whether three or more of these convictions involved violent felonies.

Mr. Hamilton does not dispute that two of his prior convictions involved violent felonies: (1) his 1978 Oklahoma conviction for robbery with firearms and (2) his 1991 California conviction for assault with a deadly weapon. One more prior conviction for a violent felony would trigger the ACCA's mandatory minimum.

The government does not argue that a third violent felony could be based on (1) his 1975 Louisiana conviction for burglary¹ or (2) his 1993 California conviction for driving under the influence. Thus, the applicability of the ACCA's mandatory minimum turned on the three remaining convictions in Oklahoma for second-degree burglary.

II. Classification as a Violent Felony Under the Enumerated–Offense Clause

To count as a violent felony under the ACCA, a prior conviction must involve a violent felony under the Elements Clause, the Enumerated–Offense Clause, or the Residual Clause. These clauses provide alternative definitions of a violent felony:

1. Elements Clause: An element of the offense includes the use, attempted use, or threatened use of physical force against another person. 18 U.S.C. § 924(e)(2)(B)(i).

2. Enumerated–Offense Clause: The offense is burglary, arson, extortion, or a crime involving the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii).

3. Residual Clause: The crime otherwise creates "a serious potential risk of physical injury to another." Id.

The Residual Clause is unconstitutionally vague,² and the government does not invoke the Elements Clause. Instead, the government argues that the Oklahoma offense of second-degree burglary fits the Enumerated–Offense Clause.

The Enumerated–Offense Clause would fit only if the Oklahoma version of second-degree burglary had met the definition of generic burglary. Taylor v. United States , 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Generic burglary requires "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Id .

A. The Categorical Approach

To determine whether a crime constitutes generic burglary, we use the categorical approach. Id . at 600, 110 S.Ct. 2143. Under this approach, the court must decide whether the elements of the prior conviction match the elements of a generic burglary. See id. at 600, 602, 110 S.Ct. 2143.

Oklahoma's statute for second-degree burglary provides:

Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection, in which any property is kept, or breaks into or forcibly opens, any coin operated or vending machine or device with intent to steal any property therein or to commit any felony, is guilty of burglary in the second degree.

Okla. Stat. tit. 21, § 1435. In district court, the government conceded that the Oklahoma statute reaches not only generic burglaries but also non-generic burglaries. But the government insists that Mr. Hamilton's Oklahoma convictions involved generic burglaries.

B. The Modified Categorical Approach

For this argument, the government relies on the modified categorical approach. Under this approach, we consider a limited class of charging documents to determine whether Mr. Hamilton necessarily admitted the elements of an offense that would constitute a generic burglary. See Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). But this approach is permissible only if the statute of conviction is divisible. See Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013).

To be divisible, a statute must "comprise[ ] multiple, alternative versions of the crime." Id. A statute comprises "multiple, alternative versions of the crime" if the statutory options constitute elements rather than means. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248–49, 195 L.Ed.2d 604 (2016). "Elements" are the parts of a statute that the prosecution must prove; "means" are alternative factual methods of committing a single element. Id. Thus, we must determine whether the locational alternatives in the Oklahoma statute for second-degree burglary constitute elements or means.

To distinguish between the two, we may consider three sources:

1. state-court opinions,

2. the text of the statute, and

3. the record of conviction.

See id. Each source may definitively show whether the locational alternatives constitute elements or means. Id. at 2256. After considering the three sources, however, the court might remain uncertain on whether the locational alternatives constitute elements or means. This uncertainty would

• require us to treat the locational alternatives as means, rendering the Oklahoma statute indivisible, and

• preclude use of the Oklahoma convictions to trigger the ACCA's mandatory minimum under the Enumerated–Offense Clause.

See United States v. Degeare , 864 F.3d 1241, 1248 (10th Cir. 2017) ("[U]nless we are certain that a statute's alternatives are elements rather than means, the statute isn't divisible and we must eschew the modified categorical approach.")

III. Indivisibility

After considering the state-court opinions, the text of the statute, and the record of conviction, we remain uncertain on whether the locational alternatives constitute elements or means. In light of this uncertainty, we must regard the locational alternatives in Oklahoma's statute for second-degree burglary as means rather than elements. As a result, Mr. Hamilton's sentence was not subject to the mandatory minimum under the ACCA's Enumerated–Offense Clause.³

A. Standard of Review

We review de novo whether Mr. Hamilton's prior convictions qualify as violent felonies. United States v. Cartwright , 678 F.3d 907, 909 (10th Cir. 2012).

B. Oklahoma Opinions

The government argues that

• Oklahoma's case law classifies location as an element of second-degree burglary and

• Oklahoma's uniform jury instructions demonstrate that location constitutes an element of the offense.⁴

Like Oklahoma case law, the Oklahoma uniform jury instructions provide useful guidance on the content of state law. See United States v. Titties , 852 F.3d 1257, 1270 (10th Cir. 2017) ("Oklahoma's Uniform Jury Instructions provide an additional source of state law guidance" to distinguish between means and elements.); see also De Leon v. Lynch , 808 F.3d 1224, 1231 n.9 (10th Cir. 2015) ("[T]he uniform jury instructions have often guided both the [Oklahoma Court of Criminal Appeals] and our court in defining the bounds of Oklahoma criminal law."). But Oklahoma's case law and uniform jury instructions do not definitively require classification as an element.

The Oklahoma Court of Criminal Appeals has referred to the locational alternatives as different ways of satisfying a single element. See Maines v. State , 97 Okla.Crim. 386, 264 P.2d 361, 363 (Okla. Crim. App. 1953) ("The first requisite of burglary is the breaking and entering of a building, booth, tent, railroad car, vessel or other structure or erection in which any property is kept."). Nonetheless, the government contends that Oklahoma courts treat locational alternatives as elements of the offense. For this contention, the government relies primarily on Ross v. State , 78 Okla.Crim. 293, 147 P.2d 797 (Okla. Crim. App. 1944). There the Oklahoma Court of Criminal Appeals stated that "an indictment or information for burglary ... must allege every fact and circumstance necessary to constitute the offense, including the time, place, ownership, and a description of the premises." Ross , 147 P.2d at 799. Because the charging document must allege the place being burgled, the government contends that the place must constitute an element.

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