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October 2, 2014
  United States v. Trent- Tenth Circuit
Headline: Tenth Circuit Rules Modified Categorical Approach Applies to Oklahoma Conspiracy Conviction

Areas of Law: Criminal Law, Statutory Construction

Issue Presented:

1. Should the modified categorical approach apply to conspiracy convictions to determine whether a prior felony is a "serious drug offense" under the Armed Career Criminal Act (ACCA)?

Brief Summary:

Defendant was convicted of being a felon in possession of a firearm. He raised several issues on appeal, but the court focused primarily on the issue of whether his prior conspiracy conviction is considered a "serious drug offense" under the Armed Career Criminal Act (ACCA), 18 U.S.C. ยง 924(e). The court held that the modified categorical approach should be applied to his prior conviction under the general Oklahoma conspiracy statute, and that as a result, the conviction qualified as a serious drug offense. The court affirmed his conviction. Judge Seymour concurred in the judgment.

Extended Summary:

Defendant was arrested after being pulled over in a car with two other individuals after officers found a handgun wedged in the back seat, behind an armrest. Defendant was arrested because he had a prior felony conviction. At trial, the main issue was whether the gun was the Defendant's. The jury convicted the Defendant. At sentencing, Defendant argued that the mandatory minimum sentence under the Armed Career Criminal Act (ACCA) did not apply, because his conviction under the Oklahoma general conspiracy statute did not qualify as the third conviction that would give rise to the ACCA enhancement. The district court disagreed and sentenced Defendant to 196 months in prison with five years of supervised release.

The majority first addressed Defendant's challenges for sufficiency of the evidence, improper admission of his prior conviction for being a felon in possession of a firearm, improper jury instructions, and that his sentence was substantively unreasonable. The majority disagreed with the Defendant on each of these arguments, quickly dismissing them before turning to the ACCA issue.

The majority first explained that the ACCA increased the penalty for being a felon in possession of a firearm if the defendant has three prior convictions for a "violent felony" or a "serious drug offense." The Defendant conceded that he had two prior convictions for serious drug offenses under the ACCA but argued that his 2007 conviction under the Oklahoma general conspiracy statute could not be characterized as a serious drug offense. The majority conducted a de novo review on this issue.

The majority noted that the categorical approach is generally used to determine whether a conviction qualifies as a violent felony or a serious drug offense under the ACCA. Under the categorical approach, the court looks only at the elements of the statute under which the Defendant was convicted. In order for the conviction to fall under the ACCA, the court must find that all violations of the statute would qualify, regardless of the actual conduct of the Defendant. The majority stated that under the categorical approach, the defendant's conspiracy conviction would not be considered a serious drug offense, because the statute could be violated in a number of ways that do not involve drugs.

The majority then addressed the applicability of the modified categorical approach, which is to be used when a statute is divisible - meaning that one or more of the elements are set out in the alternative. When using the modified categorical approach, a court may turn to certain documents, including charging documents, plea agreements, plea colloquy transcripts, findings of fact and conclusions of law from bench trials, jury instructions, and verdict forms. In the Tenth Circuit, admissions from defense counsel may also be considered.

The majority then summarized Descamps v. United States, 133 S. Ct. 2276 (2013), in which the defendant was convicted of being a felon in possession of a firearm and had a previous conviction for burglary under a California Statute. The government argued that the burglary conviction was a violent felony, but the defendant argued that the California offense of burglary was broader than generic burglary. Thus, the offense did not qualify as a violent felony under the ACCA because some crimes punishable under the California statute did not fit the generic definition of burglary.

On appeal, the Ninth Circuit in Descamps relied on its en banc decision in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011), and held that the modified categorical approach applied to "missing element" crimes, which are crimes that are "missing an element of the generic crime." In Aguila-Montes, the Ninth Circuit stated that divisible statutes are subject to the modified categorical approach, and then stated why it believed that "missing element" statutes should also be subject to the modified categorical approach, because they are not "meaningfully different" from divisible statutes. A "missing element" statute, according to Aguila-Montes, was merely a list of hypothetical alternatives as opposed to an explicit list. Using Aguila-Montes, the Ninth Circuit held that the inquiry is whether "the factfinder [was] actually required to find the facts satisfying the elements of the generic offense" (emphasis removed). Using this test, the Ninth Circuit found that the defendant had been convicted of generic burglary.

The Supreme Court in Descamps disagreed with the Ninth Circuit and reversed. The Supreme Court held that the modified categorical approach is inapplicable when the statute contains a single, indivisible set of elements. The modified categorical approach applies only when the multiple, alternative elements are present, effectively creating several different crimes within the same statute.

The Supreme Court specified three reasons for adopting an elements-based focus. First, the focus on convictions indicated that Congress intended for the sentencing court to look at the fact there are prior convictions, without looking at the facts underlying those prior convictions. Second, the categorical approach steers clear of any Sixth Amendment issues that could arise from sentencing a defendant without a jury making a finding of fact beyond a reasonable doubt. Third, it is unfair for a court to look at the facts underlying the prior convictions, particularly when litigating collateral facts were irrelevant to guilt under the statute.

The majority then held that a statute which cross-references other statutes is divisible. It noted that in United States v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012), the court had previously held that a statute that cross-references another statute is divisible. Further, the Ninth Circuit in Coronodo v. Holder, 759 F.3d 977 (9th Cir. 2014), found that a California drug statute was divisible because it identified a number od controlled substances by reference to other California drug schedules and statutes. Additionally, the Sixth Circuit, relying on Descamps, held that the Ohio incitement-to-violence statute was divisible because it turned on the violence underlying the incitement. The majority noted that before Descamps was decided, the Third Circuit found that the modified categorical approach applied to the Delaware statute prohibiting body armor because it incorporates by reference "the disjunctive list of all felonies." The Seventh Circuit also decided, pre-Descamps, that an Illinois armed violence statute was divisible.

The majority then addressed pre-Descamps Supreme Court precedent. In James v. United States, 550 U.S. 192 (2007), the Supreme Court considered whether the defendant's previous conviction under a Florida statute for attempted burglary qualified as a violent felony under the ACCA. Although the attempt statute was not divisible on its face, the Supreme Court looked at the burglary statute, because burglary was the specific offense stated in the charging document. Thus, the Court held that the offense was a violent felony. The Court did not mention, however, that the attempt statute was divisible.

Next, the majority analyzed the Oklahoma general conspiracy statute and held that it was divisible because it cross-references all state criminal offenses. The majority stated that the Oklahoma legislature could have elected to write out a list of all Oklahoma crimes within the conspiracy statute, but that doing so would have been redundant. The majority reasoned that although this statute made the list lengthy, it did not make the list hypothetical.

After finding that the statute is divisible, the majority looked at the defendant's conviction in order to determine if his conviction fell within the purview of the ACCA. The amended information in the plea agreement stated that he was pleading guilty to "conspiracy to manufacture a controlled dangerous substance", and specifically mentioned methamphetamines. Further, at his plea colloquy, the defendant stated "I conspired to manufacture methamphetamines."

The majority stated that the conspiracy to manufacture methamphetamines is a serious drug offense under the ACCA. The ACCA offense includes the manufacturing of a controlled substance, and the majority agreed with other circuits that have held that manufacturing also includes attempts and conspiracy.

The majority then had to determine if the statutes cross-referenced in the conspiracy statute were alternative elements. If the specific object of the offense is not an element of the offense, then the modified categorical approach would not apply. The majority stated that simply because alternatives are listed does not mean that they are elements. Several alternatives may be presented to a jury without all jurors having to decide which alternative act was committed. In such a case, the alternative is not an element.

To demonstrate this principle, the majority discussed Schad v. Arizona, 501 U.S. 624 (1991), where the defendant was convicted of first-degree murder and sentenced to death. In Schad, the defendant argued that the jury instructions should have required the jury to agree unanimously on a single theory of first-degree murder. The Supreme Court, however, stated that the Arizona statute did treat the alternative theories as alternative elements. Thus, defendant's conviction was affirmed because the jury simply had to agree unanimously that first-degree murder had been committed.

The majority explained that Descamps did not adopt this view of elements, because that would mean that the court could never use the modified categorical approach without determining if the alternatives are means or elements. The court pointed to Justice Alito's dissent in Descamps to show that it would be difficult to engage in this analysis because the amount of case law regarding means versus elements is staggering. The majority pointed again to Coronado, where the jury did not need to agree on which controlled substance the defendant possessed, but the modified categorical approach was still used. It also cited to California case law demonstrating that the actual drug possessed is not an element of the crime. Regardless, the majority agreed with the Ninth Circuit's holding and stated that the Ninth Circuit approach satisfies the three reasons that the Supreme Court applied the categorical approach in Descamps.

The majority noted that the alternative statutory phrases are not always elements. Further, the charging document will typically reflect the relevant element, which can easily be examined in order to determine whether the defendant committed an ACCA crime.

The majority then conceded that it may be incorrect. Thus, it determined whether the general conspiracy statute is divisible even if it misunderstood the holding of Descamps. The majority held that the jury must unanimously agree on the crime that the conspirators agreed to commit. It noted that some jurisdictions may have determined that the jury does not need to determine the target crime unanimously. It then reviewed Oklahoma state law and Oklahoma Uniform Jury Instructions to make the determination that the jury likely would have to agree on the target offense. The majority agreed with the Fourth Circuit that the court should look to how state courts instruct juries n order to determine the elements of an offense. The majority also found support for its position in Richardson v. United States, 526 U.S. 813 (1999), where the court held that for conviction under the federal continuing-criminal-enterprise statute, the continuing series of violations of a federal drug law was an element of the statute, as opposed to alternative means.

The majority noted that Supreme Court interpretation of federal statutes is not binding, but that it is helpful. Further, it noted that allowing an Oklahoma jury to convict someone without deciding what the object of the conspiracy was, might result in unfairness. The majority concluded that even under the traditional use of the word elements allows for the application of the modified categorical approach.

Defendant argued that the modified categorical approach should not be applied because the parties treated the charge as lying outside the purview of the drug statutes. The state could have charged Defendant under the conspiracy statutes related to drug offenses. The majority, however, stated that regardless, the offense he pleaded guilty to satisfied the requirement of the ACCA.

Judge Seymour concurred in the judgment, noting that he did not join Section II(F)(4) of the opinion, in which the majority explains the meaning of the term "element."

To read the full opinion, please visit:

Panel: Hartz, Seymour, Tymkovich

Date of Issued Opinion: September 25,2014

Docket Number: No. 12-6283

Decided: Defendant's conviction and sentence were affirmed.


Julia C. Summers, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Mark R. Stoneman, Special Assistant United States Attorney, (Sanford C. Coats, United States Attorney, and Robert D. Gifford, II, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Author: Hartz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 10/02/2014 08:33 PM     10th Circuit  

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