United States v. Wilkins

30 F.4th 1198

UNITED STATES of America, Plaintiff - Appellee,

v.Ira Lee WILKINS, Defendant - Appellant.

No. 19-5114

United States Court of Appeals, Tenth Circuit.

FILED April 15, 2022

Shira Kieval, Assistant Federal Public Defender, and Virginia L. Grady, Federal Public Defender, Denver, Colorado, for the Defendant-Appellant.

Clinton J. Johnson, Acting United States Attorney, and Leena Alam, Assistant United States Attorney, Tulsa, Oklahoma, for the Plaintiff- Appellee.

Before BACHARACH, BRISCOE, and MURPHY, Circuit Judges.

BACHARACH, Circuit Judge.

This case arises out of Mr. Ira Lee Wilkins's sentence for unlawfully possessing a firearm. See 18 U.S.C. § 922(g)(1). In deciding the sentence, the district court considered the effect of Mr. Wilkins's prior conviction in Texas for aggravated robbery. The district court characterized this offense as a "crime of violence" under the sentencing guidelines, which increased the base-offense level. U.S.S.G. §§ 2K2.1(a)(4)(A) & (6). Mr. Wilkins appeals, arguing for the first time that the district court shouldn't have considered aggravated robbery as a crime of violence.¹ We affirm.

I. To determine whether aggravated robbery in Texas constitutes a crime of violence, we must determine the applicable approach.

To determine whether a prior offense constitutes a crime of violence, we apply either the categorical approach or the modified categorical approach. United States v. Kendall , 876 F.3d 1264, 1267–68 (10th Cir. 2017).

A. Categorical Approach

Under the categorical approach, we compare the underlying state statute to the guidelines’ definition of a "crime of violence." Id. at 1267. If the statute sweeps beyond the guidelines’ definition of a "crime of violence," we wouldn't consider the offense a crime of violence. Id. at 1267–68.

We start with how Texas defines aggravated robbery. Under Texas law, a person commits aggravated robbery if "he commits robbery as defined in Section 29.02, and he

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:

(A) 65 years of age or older; or

(B) a disabled person."

Tex. Penal Code § 29.03(a).

This definition turns on the meaning of "robbery." A person commits robbery under § 29.02 "if, in the course of committing theft ... and with intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death."

Tex. Penal Code § 29.02(a).

We compare this definition of aggravated robbery to the guidelines’ definition of a "crime of violence." The applicable guideline provision, § 4B1.2(a)(1), defines a "crime of violence" as a state felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1).² So we must decide whether Texas's offense of aggravated robbery necessarily contains an element of using, attempting to use, or threatening to use physical force against "the person of another." Id.

B. Modified Categorical Approach

The parties agree that Texas's statutes for robbery and aggravated robbery cover some conduct that wouldn't fit the applicable definition of a "crime of violence." But the government argues that

• the Texas statutes create separate offenses and

• Mr. Wilkins's conviction involves only the offense that constitutes a "crime of violence."

So we must decide whether the Texas statutes refer to different crimes or just different ways of committing a single crime. We call this inquiry "divisibility." United States v. Titties , 852 F.3d 1257, 1266 (10th Cir. 2017).

A statute is "divisible," creating multiple crimes, when the statute "sets out one or more elements of the offense in the alternative." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (emphasis added). But disjunctively listed statutory components do not automatically qualify as elements. United States v. Titties , 852 F.3d 1257, 1267 (10th Cir. 2017). When the statute merely lists "various factual ways of committing some component of the offense," the statutory components are considered means rather than elements . Id. (internal quotation marks & citation omitted). A statute is divisible only when it lists "multiple, alternative elements, and so effectively creates several different ... crimes." Id. (internal quotation marks & citation omitted).

If the statute is divisible, creating multiple crimes, the district court applies the modified categorical approach to determine which crime was committed. Id. To make that determination, the court consults a limited class of record documents. Id. at 1266. Once the court determines which crime the defendant committed, the court compares the elements of that crime to the guidelines’ definition of a "crime of violence." Id.

II. It would not have been an obvious error for the district court to classify the Texas robbery statute as divisible, creating multiple crimes.

At issue is the divisibility of the Texas robbery statute, § 29.02(a).³ See p. 1202, above. Subsection "1" requires only recklessness; Subsection "2" requires either intentional or knowing conduct. So our threshold task is to decide whether these statutory components refer to elements (reflecting two separate crimes) or means (different ways of committing the same offense). Under the plain-error standard, Mr. Wilkins doesn't show an obvious error in considering the statutory components as elements.

A. We apply the plain-error standard, preventing reversal unless the alleged error is obvious.

If Mr. Wilkins had preserved the issue, the government would need to establish that

• the Texas robbery statute contains two sets of elements and

• Mr. Wilkins's conviction is a "crime of violence" under the guidelines because the elements require the use, attempt to use, or threat to use physical force against another person.

See United States v. Degeare , 884 F.3d 1241, 1245 (10th Cir. 2018).

But in district court, Mr. Wilkins did not challenge classification of aggravated robbery as a crime of violence. So we apply the plain-error standard. See United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (en banc). Under this standard, Mr. Wilkins must show an error that is plain, affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

Ordinarily, a statute is indivisible unless we can tell with certainty that the alternative statutory components constitute elements (rather than means). United States v. Cantu , 964 F.3d 924, 929 (10th Cir. 2020). This court has not defined the level of certainty required for divisibility; at a minimum, we must be "at least more certain than not that a statute's alternatives constitute elements." United States v. Degeare , 884 F.3d 1241, 1248 n.1 (10th Cir. 2018) (emphasis in original). But given the plain-error standard, our ultimate question is whether classification of the statutory components as elements would have constituted an obvious error.⁴ See pp. 1201–02, 1203, above.

B. The district court could have reasonably considered the statutory components of Texas robbery as elements.

To determine whether the statutory components constitute elements, we start by considering the pertinent state's caselaw, the pattern jury instructions, and the statute itself. See United States v. Cantu , 964 F.3d 924, 928 (10th Cir. 2020) (the state's caselaw and the statutory text); Johnson v. Barr , 967 F.3d 1103, 1109 (10th Cir. 2020) (the pattern jury instructions). If those sources show with certainty whether the separate statutory components constitute elements or means, the inquiry ends. Cantu , 964 F.3d at 928. If the characterization remains uncertain, the court can "peek" at the record to determine whether the statutory components constitute elements or means. Id. at 928–29.

1. Pattern Jury Instructions and State Caselaw

Texas's pattern jury instructions suggest that the statutory components are elements. But Mr. Wilkins points to two Texas state-court opinions as proof that the statutory components are means:

a. Cooper v. State , 430 S.W.3d 426 (Tex. Crim. App. 2014)

b. Burton v. State , 510 S.W.3d 232 (Tex. Ct. App. 2017)

These opinions provide little help in characterizing the statutory components as elements or means.

a. Texas's Criminal Pattern Jury Charges

The state's pattern jury instructions provide guidance on the content of Texas law. Johnson v. Barr , 967 F.3d 1103, 1109 (10th Cir. 2020) ; see also Ford Motor Co. v. Ledesma , 242 S.W.3d 32, 45 (Tex. 2007) ("[O]ur trial courts routinely rely on the Pattern Jury Charges in submitting cases to juries, and we rarely disapprove of these charges."). That guidance is particularly helpful here because

• Mr. Wilkins pleaded guilty and

• the record contained no case–specific jury instructions.

See United States v. Titties , 852 F.3d 1257, 1270 n.15 (10th Cir. 2017) (considering the state's pattern jury instructions in similar circumstances).

In Texas, the pattern jury instructions differ for the two subsections of the robbery statute. Compare Tex. Crim. Pattern Jury Charges § 87.2 (Robbery by Threats), with Tex. Crim. Pattern Jury Charges § 87.1 (Robbery Bodily Injury). Those differences "suggest[ ] that robbery by threat and robbery by bodily injury are separate crimes within one statute." Martin v. Kline , No. 19-15605, 2021 WL 6102175, at *1 (9th Cir. Dec. 22, 2021) (unpublished); see also United States v. Leaverton , 895 F.3d 1251, 1255 (10th Cir. 2018) (basing divisibility in part on the uniform jury instructions’ indication that the statutory components require proof of different elements). So the pattern jury instructions support characterization of the statutory components as...