United States v. Winrow

49 F.4th 1372

UNITED STATES of America, Plaintiff - Appellee,

v.Michael Jackson WINROW, Defendant - Appellant

No. 21-6069

United States Court of Appeals, Tenth Circuit.

FILED September 27, 2022

Leah Deborah Yaffe, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, and Shira Kieval, Assistant Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.

Stanley J. West, Assistant United States Attorney (Robert J. Troester, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before HARTZ, SEYMOUR, and MORITZ, Circuit Judges.

SEYMOUR, Circuit Judge.

Michael Winrow pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At the time of Mr. Winrow's offense, this crime was ordinarily subject to a maximum sentence of 10 years. 18 U.S.C. § 924(a)(2) (2018). However, the Armed Career Criminal Act provided for a minimum term of 15 years when a defendant had three prior convictions for a "violent felony or a serious drug offense," 18 U.S.C. § 924(e)(1) (2018). The district court sentenced Mr. Winrow to 188 months, concluding that he was subject to the ACCA's enhancement because he had three qualifying predicates. Mr. Winrow contends that this was error. Two of those convictions were for aggravated assault and battery under Okla. Stat. tit 21, § 646 (2011). He asserts that aggravated assault and battery, as Oklahoma defines it, is not categorically a violent felony, so his convictions under § 646 should not have counted as predicates. We agree.

ILegal Background

Under the ACCA's "elements clause," sometimes called the "force clause," a felony conviction qualifies as a "violent felony" if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). The force must be "violent," that is, it must involve "force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). In determining whether a conviction qualifies as an ACCA predicate, courts take a "categorical approach," focusing on the elements of the offense in the abstract, rather than the particulars of the conduct that led to the defendant's conviction. United States v. Titties , 852 F.3d 1257, 1265 (10th Cir. 2017).

A. The Categorical and Modified Categorical Approaches

Under the categorical approach, a conviction qualifies as a predicate only if the elements of the offense necessarily satisfy the ACCA definition. Id . at 1266 (citing Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ). Accordingly, we look to the least acts criminalized by statute. If the statute "realistically reaches any conduct that does not involve the use of physical force against another person, then a conviction under [the statute] does not qualify as a violent felony under the ACCA's element's clause." United States v. Hammons , 862 F.3d 1052, 1054 (10th Cir. 2017) (citing Moncrieffe v. Holder , 569 U.S. 184, 190–91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ). The test is all or nothing. Either any conviction under the statute will qualify, or none will. Titties , 852 F.3d at 1265–66.

Courts employ the "modified categorical approach" when the prior conviction is based on a so-called "divisible" statute, that is when the statute sets out one or more elements of the offense in the alternative. Id. at 1266 (citing Descamps , 570 U.S. at 257, 133 S.Ct. 2276 ). When a statute has alternative elements, no one could know from the face of the statute alone which version of the offense a defendant has been convicted of, rendering a categorical comparison of elements impossible. Id. To get around this problem, courts may consult certain record documents to determine which elements formed the basis of the defendant's offense. Id. Once the applicable elements are identified, we proceed with the categorical approach in the usual manner. Id. at 1267.

B. Divisibility: The Means/Elements Distinction

Before resorting to the modified categorical approach, a court's first task is to determine whether the statute is truly divisible. If it is not, the modified categorical approach has no role to play. Id. at 1267. A statute is only divisible if the alternative terms are "elements" of different offenses, rather than merely "means" of committing the same offense. Id. (citing Mathis v. United States , 579 U.S. 500, 517, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) ). "Elements" are the "constituent parts" of a crime's legal definition. Mathis , 579 U.S. at 504, 136 S.Ct. 2243. At trial, they are the things a jury must find beyond a reasonable doubt; at a plea hearing, they are what the defendant necessarily admits when he pleads. Id . "Means," by contrast, merely describe different factual ways of committing a single element. Id. at 506, 136 S.Ct. 2243. Critically, means are "legally extraneous"; a jury need not agree on the means by which a defendant's conduct satisfies an element, so long as they agree that the element is satisfied. Id. at 506, 136 S.Ct. 2243. If the alternatives are means, we must apply the categorical approach to the statute as a whole.

IIStandard of Review

We review de novo the district court's conclusion that Mr. Winrow's convictions for aggravated assault and battery are predicates under the ACCA. United States v. Degeare , 884 F.3d 1241, 1245 (10th Cir. 2018). The government bears the burden of showing these convictions qualify. Titties , 852 F.3d at 1264–65.

IIIDiscussion

The statute under which Mr. Winrow was convicted provides, in relevant part, as follows:

§ 646. Aggravated assault and battery defined

A. An assault and battery becomes aggravated when committed under any of the following circumstances:

1. When great bodily injury is inflicted upon the person assaulted; or

2. When committed by a person of robust health or strength upon one who is aged, decrepit, or incapacitated ....

Okla. Stat. tit 21, § 646.

Mr. Winrow argues that § 646(A)(1) and § 646(A)(2) describe alternative means of committing a single offense so the statute is indivisible and must be evaluated as a whole using the pure categorical approach. He further argues that, under Oklahoma law, a person of robust health could commit an aggravated assault and battery by committing the slightest unlawful touching of an elderly person. Since committing the offense in this way would require no violent force, he contends, it is not categorically a violent felony for the purposes of the ACCA.

The government takes the opposite view, arguing that each subsection establishes a legally distinct crime—the first turning on the degree of injury, the second on the status of the victim and perpetrator. The government contends that the former satisfies the elements clause, and that Mr. Winrow was convicted under this alternative. And even if the statute is indivisible, the government argues, aggravated assault and battery still qualifies as a violent felony because both alternatives require the use of physical force against the victim.

A. Divisibility

Our first task is to determine whether the statute is divisible, that is, whether its alternatives are means or elements. Mathis identified three tools at our disposal in conducting this inquiry. First, a state court decision may provide the answer by, for example, specifying which elements require unanimous jury agreement. Mathis , 579 U.S. at 517–18, 136 S.Ct. 2243. Second, the statute itself may provide the answer, such as by tying the alternatives to different punishments.

Id. at 518, 136 S.Ct. 2243. Finally, when the first two tools do not resolve the matter, a court can take a "peek" at the record of the prior conviction, but only for the "limited purpose of determining whether [the listed items are] element[s] of the offense." Id. at 518, 136 S.Ct. 2243 (quoting Rendon v. Holder , 782 F.3d 466, 473–74 (9th Cir. 2015) (alterations in original)). As explained further below, none of these tools resolve the question of divisibility with certainty in this case.

1. State Decisions

The Oklahoma Court of Criminal Appeals appears never to have considered a challenge to a § 646 conviction based on a lack of jury unanimity or double jeopardy, the two sorts of cases most likely to resolve the divisibility issue. And the cases cited by the parties do little to move the needle one way or the other.

In Herrington v. State , cited by Mr. Winrow, the defendant was charged with a single count of aggravated assault and battery after allegedly "flip[ping]" a baby in its crib, leaving his face "bruised and swollen." 352 P.2d 931, 932 (Okla. Crim. App. 1960). At trial, the jury convicted him based on a jury instruction that included both the injury-based alternative and the health-status alternative. On appeal, the OCCA reversed, concluding that the evidence did not support a conviction under either theory. The baby's injuries did not rise to the level of "great bodily injury" for the purposes of the first alternative, and his status as an infant did not make him decrepit or incapacitated for the purposes of the second. Id. at 934.

Mr. Winrow argues Herrington "strongly suggests" that § 646 provides alternative means because the jurors were instructed on each prong with no indication that they were also instructed that they had to agree unanimously on one alternative or the other. Aplt. Br. at 11. This overstates the case. For one, we do not know whether or not there was a unanimity instruction. The case is silent in that regard. For another, the defendant never raised the issue of juror unanimity, so we can only speculate as to how the OCCA would have held if he had.

Porter v. State , 611 P.2d 278 (Okla. Crim. App. 1980), on which the government relies, is similarly unhelpful. In Porter , the defendant, having been convicted of assault and battery with a dangerous weapon, argued on appeal...