United States v. Titties

• Decision Date: 24 March 2017
• Docket Number: No. 15-6236,15-6236
• Citation: 852 F.3d 1257
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Daminion T. TITTIES, a/k/a Damion Tyrone Tittle, a/k/a Damion Tyron Tittles, a/k/a Capone, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

852 F.3d 1257

UNITED STATES of America, Plaintiff–Appellee,
v.
Daminion T. TITTIES, a/k/a Damion Tyrone Tittle, a/k/a Damion Tyron Tittles, a/k/a Capone, Defendant–Appellant.

No. 15-6236

United States Court of Appeals, Tenth Circuit.

FILED March 24, 2017

Michael L. Brooks, The Brooks Law Firm, Oklahoma City, Oklahoma, appearing for Appellant.

Steven W. Creager, Assistant United States Attorney (Mark A. Yancey, United States Attorney, and Kerry Blackburn, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, Oklahoma, appearing for Appellee.

Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.

MATHESON, Circuit Judge.

Damion Tittle¹ pled guilty to violating 18 U.S.C. § 922(g)(1), which bars felons from possessing firearms. This crime carries a maximum sentence of 10 years, see 18 U.S.C. § 924(a)(2), but the Government argued Mr. Tittle's sentence should be enhanced under the Armed Career Criminal Act ("ACCA"), see 18 U.S.C. § 924(e)(1). The enhancement—a mandatory minimum term of 15 years—applies when a defendant has "three previous convictions ... for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). The district court concluded Mr. Tittle had three qualifying offenses and sentenced him to a prison term of 188 months, more than 15 years.

On appeal, Mr. Tittle argues he is not subject to an ACCA-enhanced sentence because one of his three prior convictions is not a qualifying offense. We agree. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we vacate his sentence and remand for resentencing.

I. BACKGROUND

In August 2015, Mr. Tittle pled guilty to being a felon in possession of firearms. The written plea agreement specified that Mr. Tittle faced a penalty "based on the possible application of [the ACCA]" of "not less than fifteen years up to life imprisonment." App., Vol. 1 at 45. The agreement

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further provided that "[i]f [the ACCA] is found not to apply, the maximum penalty is up to ten years imprisonment." Id.

The Government argued for an ACCA sentence because Mr. Tittle had three qualifying Oklahoma state convictions:

1. unlawful distribution of cocaine;

2. unlawful trafficking in cocaine within 1,000 feet of a public park; and

3. feloniously pointing a firearm.

Mr. Tittle conceded the two cocaine convictions qualified as "serious drug offenses" under the ACCA, see 18 U.S.C. § 924(e)(2)(A), but he argued his conviction for feloniously pointing a firearm did not constitute a "violent felony" as defined by the ACCA, see 18 U.S.C. § 924(e)(2)(B).

Deciding whether a prior conviction qualifies as an ACCA predicate offense requires comparing the crime's elements to the ACCA. This elements-based comparison is known as the "categorical approach," which we discuss in detail below. Under it, if a crime's elements satisfy the ACCA definition, the offense counts as an ACCA predicate.

Mr. Tittle's 1996 firearm conviction was based on Okla. Stat. tit. 21 § 1289.16 (1995).² We considered this statute in United States v. Hood , 774 F.3d 638 (10th Cir. 2014), and held it could be violated in both violent and nonviolent ways. Id. at 646. As such, Hood said a sentencing court must consult documents from the record of a defendant's prior conviction under § 1289.16 to discern whether the conviction was violent and therefore qualifies as an ACCA predicate. Id. at 645.

This process of examining the record is known as the "modified categorical approach." Described more fully below, this approach looks to the record documents to identify the relevant elements for the defendant's crime of conviction. Hood required application of the modified categorical approach to § 1289.16 convictions. Id.

When Hood was decided, the law in our circuit held that sentencing courts should apply the modified categorical approach when a defendant's statute of conviction contained alternative terms, regardless of whether those terms described different means of committing a single crime or different elements delineating separate crimes. See United States v. Trent , 767 F.3d 1046, 1058–61 (10th Cir. 2014), abrogated by Mathis v. United States , –––U.S. ––––, 136 S.Ct. 2243, 2251 n.1, 195 L.Ed.2d 604 (2016). In 2016, the Supreme Court held in Mathis that the distinction between means and elements is important and that the modified categorical approach is available

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only when a statute lists alternative elements. 136 S.Ct. at 2253.

Because Mr. Tittle's sentencing occurred in 2015 before Mathis was decided, the parties and the district court relied upon Hood . Mr. Tittle argued his § 1289.16 conviction was non-violent and thus not an ACCA offense. The Government argued Mr. Tittle had violated § 1289.16 in a violent fashion because the factual summary in his state plea agreement included the following handwritten statement: "I pointed a weapon at [the victim] and threatened her life." App., Vol. 1 at 94.³

The district court followed Hood and applied the modified categorical approach by examining record materials from Mr. Tittle's state case to learn how he had violated § 1289.16. Based on the handwritten admission in the plea agreement, the court ruled Mr. Tittle had been convicted under the violent portion of § 1289.16 and that he therefore had three qualifying ACCA offenses. Applying the ACCA enhancement, the court sentenced Mr. Tittle to 188 months in prison.

Mr. Tittle filed a timely notice of appeal in December 2015. See Fed. R. App. P. 4(b)(1)(A)(i).⁴

On June 23, 2016, the Supreme Court decided Mathis , 136 S.Ct. 2243, which the parties have addressed in their briefs. Mathis 's effect on our Hood decision is the central issue in this appeal.

II. DISCUSSION

We begin with our standard of review. We then address relevant case law, including Mathis , on how courts should determine whether a defendant's past convictions warrant an ACCA enhancement. Applying the law to Mr. Tittle's conviction under § 1289.16, we conclude it is not a qualifying ACCA offense and remand for resentencing.

A. Standard of Review

Whether a prior conviction satisfies the ACCA's violent felony definition is a legal question we review de novo. United States v. Ridens , 792 F.3d 1270, 1272 (10th Cir. 2015). But we typically review for plain error when on appeal "a defendant

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objects to an ACCA enhancement on grounds different from those presented in the trial court." Hood , 774 F.3d at 645 ; see Fed. R. Crim. P. 52(b).

The parties disagree about the standard of review. Mr. Tittle asserts our review should be de novo because Mathis had not been decided when he was sentenced and Hood foreclosed the argument he makes now—that we should apply the categorical approach to § 1289.16 convictions. See Hood , 774 F.3d at 645 (holding modified categorical approach applies to § 1289.16 ). The Government agrees that whether a prior conviction qualifies under the ACCA is a legal question but argues our review should be for plain error because Mr. Tittle did not object to the district court's use of the modified categorical approach under Hood .⁵

We need not resolve this dispute. An illegal sentence—one "where the term of incarceration exceeds the statutory maximum"—"trigger[s] per se, reversible, plain error." United States v. Gonzalez–Huerta , 403 F.3d 727, 739 n.10 (10th Cir. 2005) (en banc). As we will show, Mr. Tittle received an illegal sentence. We would therefore vacate his sentence under either standard of review.

B. Legal Background

In this section, we (1) describe the ACCA enhancement, (2) explain the approaches courts use to determine whether a prior conviction is an ACCA-qualifying offense, and (3) discuss selection of the applicable approach.

1. The ACCA Enhancement

Absent an enhancement under the ACCA, "the felon-in-possession statute sets a 10–year maximum penalty." Mathis , 136 S.Ct. at 2248 (citing 18 U.S.C. § 924(a)(2) ). But the "ACCA prescribes a 15–year mandatory minimum sentence if a defendant is convicted of being a felon in possession of a firearm following three prior convictions for a ‘violent felony.’ " Id. "Serious drug offenses" can also count as ACCA predicate convictions. See 18 U.S.C. § 924(e)(1). Convictions by guilty plea qualify as ACCA offenses. See Shepard v. United States , 544 U.S. 13, 19, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The government must show a past offense qualifies as

852 F.3d 1265

an ACCA predicate. See United States v. Delossantos , 680 F.3d 1217, 1219 (10th Cir. 2012).

There is no dispute that Mr. Tittle has two "serious drug offenses." He is subject to the ACCA's 15–year mandatory minimum only if his 1996 Oklahoma conviction for feloniously pointing a firearm under § 1289.16 qualifies as a violent felony.

The ACCA's "force clause" defines violent felony as follows:

(B) [T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year ... that—

(i) has as an element the use, attempted use, or threatened use of

...