United States v. Leaverton

• Citation: 895 F.3d 1251
• Decision Date: 16 July 2018
• Docket Number: No. 17-5001,17-5001
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesse Bud LEAVERTON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

895 F.3d 1251

UNITED STATES of America, Plaintiff-Appellee,
v.
Jesse Bud LEAVERTON, Defendant-Appellant.

No. 17-5001

United States Court of Appeals, Tenth Circuit.

FILED July 16, 2018

William P. Widell, Jr., Assistant Federal Public Defender, Tulsa, Oklahoma (Barry L. Derryberry, Assistant Federal Public Defender, Tulsa, Oklahoma; Julia L. O’Connell, Federal Public Defender, Tulsa, Oklahoma, with him on the briefs), for Defendant-Appellant.

Timothy L. Faerber, Office of the United States Attorney, Tulsa, Oklahoma (Neal C. Hong, Office of the United States Attorney, Tulsa, Oklahoma; Loretta F. Radford, Acting United States Attorney, with him on the brief), for Plaintiff-Appellee.

Before LUCERO, HOLMES, and McHUGH, Circuit Judges.

LUCERO, Circuit Judge.

Jesse Leaverton was convicted of three counts of bank robbery. At sentencing, the district court concluded that 18 U.S.C. § 3559(c) applied because Leaverton had been previously convicted of two serious violent felonies, enhancing his sentence from a maximum of twenty years to a mandatory term of life imprisonment. Leaverton now appeals, arguing that his prior conviction for Oklahoma manslaughter does not qualify under § 3559(c). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse Leaverton’s

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sentence and remand to the district court for resentencing.

I

Leaverton was convicted of three counts of bank robbery in violation of 18 U.S.C. § 2113(a). His Presentence Investigation Report ("PSR") calculated a total offense level of 27 and a criminal history category of III, resulting in an advisory Guidelines range of 87 to 108 months. However, the government contended that Leaverton was subject to a mandatory life sentence under 18 U.S.C. § 3559(c)(1). That statute requires that anyone convicted of "a serious violent felony" who has two or more prior convictions for serious violent felonies be sentenced to life imprisonment. § 3559(c)(1). A serious violent felony is one that falls within a list of enumerated offenses or is punishable by a term of imprisonment of at least ten years and meets certain other criteria. § 3559(c)(2)(F).

The sole point of contention was whether Leaverton’s prior conviction for Oklahoma Manslaughter I qualified as a serious violent felony. That statute contains three subsections. See Okla. Stat. tit. 21, § 711. The government argued that Leaverton was convicted under a subsection that applies when a killing is "perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide." Okla. Stat. tit. 21, § 711(2). In support of its argument, the government attached a docket sheet that described Leaverton as pleading guilty to "MANSLAUGHTER I, SECTION #2, TITLE 711."

At sentencing, the district court found that Leaverton had been convicted under subsection two. It held that this conviction qualified as a serious violent felony and thus Leaverton met the requirements of § 3559(c). The court imposed a sentence of life imprisonment. Leaverton timely appealed.

II

We review de novo whether a prior conviction qualifies as a serious violent felony under § 3559(c). United States v. Cooper, 375 F.3d 1041, 1053 (10th Cir. 2004).

A

In determining whether a previous crime meets a statutory definition, there are two potential approaches, "the categorical approach and the circumstance-specific approach." United States v. White, 782 F.3d 1118, 1130 (10th Cir. 2015). Under the former, we look only to "the elements of the statute forming the basis of the defendant’s conviction," and if a statute is divisible, to "a limited class of documents," rather than the particular facts of a defendant’s conduct. Id. at 1130-31. Under the latter, we "consider the facts and circumstances underlying an offender’s conviction." Id. at 1131 (quotation omitted). Both parties state that the categorical approach applies under § 3559(c), although our court has not expressly considered the question. We agree.

The definition of serious violent felony includes two subsections. The first covers:

a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111); manslaughter other than involuntary manslaughter (as described in section 1112); assault with intent to commit murder (as described in section 113(a) ); assault with intent to commit rape; aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242); abusive sexual contact (as described in sections 2244 (a)(1) and (a)(2) ); kidnapping; aircraft piracy (as described in section 46502 of Title 49);

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robbery (as described in section 2111, 2113, or 2118 ); carjacking (as described in section 2119); extortion; arson; firearms use; firearms possession (as described in section 924(c) ); or attempt, conspiracy, or solicitation to commit any of the above offenses ....

§ 3559(c)(2)(F)(i). The second applies to:

any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.

§ 3559(c)(2)(F)(ii).

As we have previously noted, "a reference to a corresponding section of the criminal code strongly suggests a generic intent." White, 782 F.3d at 1132. And references to the elements of an offense are also highly indicative that the categorical approach applies. See United States v. Martinez-Hernandez, 422 F.3d 1084, 1087 (10th Cir. 2005).¹

We must determine whether Leaverton’s prior conviction for manslaughter in Oklahoma categorically qualifies as a serious violent felony. The Oklahoma statute at issue provides:

Homicide is manslaughter in the first degree in the following cases:

1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.

2. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.

3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.

Okla. Stat. tit. 21, § 711.

Section 711 contains three alternative subsections under which a defendant could be convicted. We accordingly consider whether the statute is divisible. A divisible statute "sets out one or more elements of the offense in the alternative." United States v. Titties, 852 F.3d 1257, 1266 (10th Cir. 2017) (quotation omitted). Courts considering a prior conviction under a divisible statute apply the "modified categorical approach" to "identify the elements of the crime of conviction." Id. (quotation omitted). The modified categorical approach applies only when a statute sets out alternative elements, rather than alternative means. Id."Elements are the constituent part of a crime’s legal definition, the things the prosecution must prove beyond a reasonable doubt." Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). Means are merely the

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facts underlying the crime, "extraneous to the crime’s legal requirements." Id.

We conclude that Oklahoma’s manslaughter I statute is divisible. Although the text of the statute is not dispositive, Oklahoma’s Uniform Jury Instructions indicate that each subsection requires proof of a different set of elements. Compare OUJI-CR 4-94 (instructions for subsection 1), with OUJI-CR 4-95 (instructions for subsection 2), and OUJI-CR 4-102 (instructions for subsection 3). And the Oklahoma Court of Criminal Appeals ("OCCA") has specified the "elements" of the particular subsection of manslaughter in considering the adequacy of evidence. See Barnett v. State, 271 P.3d 80, 86-87 (Okla. Crim. App. 2012). Because the statute is divisible, the modified categorical approach applies.

In employing the modified...