United States v. Wartson

• Decision Date: 10 July 2019
• Docket Number: No. 18-7033,18-7033
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHAWN DEWIGHT WARTSON, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHAWN DEWIGHT WARTSON, Defendant - Appellant.

No. 18-7033

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

July 10, 2019

(D.C. Nos. 6:15-CV-00460-JHP and 6:12-CR-00072-JHP-1)

(E.D. Okla.)

ORDER AND JUDGMENT^*

Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.^**

Shawn Dewight Wartson appeals the district court's denial of his 28 U.S.C. § 2255 petition. He claims that the district court erred by treating his Oklahoma felony conviction for conspiracy to shoot with intent to kill as a violent felony under the elements clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). We agree with Mr. Wartson. Exercising jurisdiction under 28U.S.C. §§ 1291 and 2253(a), we vacate his sentence and remand for an expedited resentencing hearing.¹

BACKGROUND

In 2012, Mr. Wartson pleaded guilty to the federal charge of felon in possession of a firearm. At sentencing, with no objection from Mr. Wartson, the district court adopted the probation officer's recommendations contained in the presentence investigation report (PSR). As a result, the court sentenced Mr. Wartson to a statutory mandatory-minimum 15 years' imprisonment, followed by five years of supervised release.

The ACCA requires this enhanced sentence for defendants with at least three previous convictions for violent felonies or serious drug offenses or both. See 18 U.S.C. § 924(e)(1). The ACCA defines a "violent felony" as:

[A]ny crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

Id. at § 924(e)(2)(B). Here, the PSR concluded that Mr. Wartson's three Oklahoma felony convictions are violent felonies under the ACCA. They include (1) a 2010 conviction for assault and battery with a dangerous weapon; (2) a 2010 conviction forconspiracy to shoot with intent to kill; and (3) a 2011 conviction for second-degree burglary. This appeal concerns Mr. Wartson's 2010 conspiracy conviction.

In 2015, the United States Supreme Court decided Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the Court invalidated the ACCA's residual clause under the Fifth Amendment. Id. at 2556-63 (holding that the residual clause's language—"otherwise involves conduct that presents a serious potential risk of physical injury to another"—is void for vagueness).

Soon after Johnson, Mr. Wartson filed a pro se 28 U.S.C. § 2255 petition to vacate his sentence. As grounds, he claimed that his 2010 Oklahoma felony conviction for conspiracy to shoot with intent to kill no longer qualified as a violent felony. According to Mr. Wartson, this meant that he no longer qualified for an ACCA-enhanced sentence.

The district court denied Mr. Wartson's petition. The court ruled that Mr. Wartson's Oklahoma conviction for conspiracy to shoot with intent to kill qualified as a violent felony under the ACCA's elements clause,² "because shooting with intent to kill obviously involves the use of physical force against another human being." See R. Vol. I at 92-93 (internal quotation marks omitted). So the court denied Mr. Wartson's petition and denied a certificate of appealabilty (COA).

We granted Mr. Wartson a COA. We also ordered that Mr. Wartson be appointed counsel, and we directed the parties to brief a single issue: "On what basis is Wartson's earlier Oklahoma felony conviction for conspiracy to shoot with intent to kill a violent felony under 18 U.S.C. §924(e)(2)(B)(1)'s elements clause?"

ANALYSIS

We review de novo a district court's decision whether a conviction qualifies as a violent felony under the ACCA. United States v. Degeare, 884 F.3d 1241, 1245 (10th Cir. 2018); see also United States v. Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017) ("On appeal from the denial of a § 2255 motion, ordinarily we review the district court's findings of fact for clear error and its conclusions of law de novo.") (internal quotation marks omitted). For the government to prevail, Mr. Wartson's conspiracy conviction must qualify under § 924(e)(2)(B)'s elements clause, which requires that the conspiracy conviction "ha[ve] 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).

In concluding that Mr. Wartson's conviction for conspiracy to shoot with intent to kill met this condition, the district court relied on United States v. Trent, 767 F.3d 1046 (10th Cir. 2014) abrogated on other grounds by Mathis v. United States, 136 S. Ct. 2243 (2016). But in our COA order, we noted that Trent answered a different question: whether a state-drug-conspiracy conviction qualified as a "serious drug offense" under § 924(e)(2)(A)(ii). And we further noted that the ACCA's serious-drug-offense definition is considerably broader than its definition of violentfelony, capturing state drug felonies "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance[.]" 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). The violent-felony definition has no absorbent word like "involving."

Even so, the government still clings to Trent, arguing that Trent's logic and reasoning apply equally in the violent-felony context. Ignoring that the violent-felony definition lacks the extension that the word "involving" provides, the government's brief simply declares that "[u]nder the categorical approach, Defendant's prior conviction involves the use or threatened use of physical force." Appellee's Resp. Br. at 8 (emphasis added). This neglects the statutory command that the predicate crime must "ha[ve] as an element the use, attempted use, or threatened use of physical force." 18 U.S.C. § 924(e)(2)(B)(i). And later, along the same line, the government simply asserts that the plain language of Mr. Wartson's statutes of conviction establish a violent felony "because Shooting With Intent to Kill obviously involves and contemplates the use of physical force against another human being."³ Appellee's Resp. Br. at 13 (emphasis added). We reject the government's attempted redraft of Congress's language.

Mr. Wartson redirects us to the real issue in the case—whether his conspiracy-to-shoot-with-intent-to-kill conviction "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). As noted above, the government cannot meet this statutory requirement by substituting "involving" or "contemplating" for "has as an element." The proper analysis is whether Mr. Wartson's conviction for conspiracy with intent to kill has the required element.

We employ the modified-categorical approach to discern the elements of the crime that Mr. Wartson conspired with others to commit, i.e., shooting with intent to kill. Trent, 767 F.3d at 1061-61. Once the elements are established, we apply the categorical approach to determine if the elements categorically match the ACCA's definition of a violent felony. See United States v. Titties, 852 F.3d 1257, 1266 (10th Cir. 2017) ("Once the relevant elements are identified, the court applies the categorical approach."). Importantly, we "consider only the statutory definition, not the underlying facts of conviction," United States v. Ontiveros, 875 F.3d 533, 535 (10th Cir. 2017). In addition, we "presume that the conviction rested upon nothing more than the least of the act criminalized, and then determine whether even those acts are encompassed by the [statutory definition]." Moncreiffe v. Holder, 569 U.S. 184, 190-91 (2013) (brackets and internal quotation marks omitted). In other words, the ACCA functions as an "on-off switch," i.e., a crime qualifies "as a predicate offense in all cases or in none." Descamps v. United States, 570 U.S. 254, 268 (2013).

We now turn to the elements of the crime of conviction at issue: conspiracy to shoot with intent to kill. The elements of Oklahoma's conspiracy statute are:

First, an agreement by two or more persons,

Second, to commit [the Crime or Conduct Charged],

Third, the defendant(s) (was/were [a] party(ies) to the agreement at the time it was made)/(knowingly became [a] party(ies) to the agreement at some time after it was made),

Fourth, an overt act by one or more of the parties performed subsequent to the formation of the agreement.

Appellee's Resp. Br. at 11-12 (citing Okla. Unif. Jury Instr. CR 2-17). In turn, the Oklahoma Uniform Jury Instructions require that the conspirators agree to violate each element of the underlying crime. Okla. Unif. Jury Instr. CR 2-10. Accordingly, we apply the modified-categorical approach to discern which elements formed the object of the conspiracy, i.e., shooting with intent to kill. Trent, 767 F.3d at 1061-61. In 2010, the elements of Oklahoma shooting with intent to kill were (1) intentionally and wrongfully (2) shooting another person with or discharging any kind of firearm (3) with the intent to kill any person, including an unborn child. Okla. Stat. tit. 21, § 652(A) (2010).

These elements show that Mr. Wartson could have been convicted of Oklahoma's crime of conspiracy to shoot with intent to kill without ever using physical force against another person. Defendants can conspire to shoot with intent to kill and later lose their nerve or even come to their senses before shooting anyone or discharging a firearm. Thus, the statute at issue does not categorically have as anelement the actual use of force. See United States v. Deiter, 890 F.3d 1203, 1214 (10th Cir. 2018) (recognizing that we have generally held that...