Background - In 2014 Joseph Degeare pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and received a 15-year ACCA-enhanced sentence based on five prior Oklahoma convictions, including three forcible-sodomy convictions (1990 and two in 1994) and a 1994 lewd-molestation conviction. - Degeare later filed a second/successive § 2255 motion after Johnson v. United States and Welch, arguing Johnson invalidated the ACCA residual-clause predicates (so only his 2003 drug conviction remained as an ACCA predicate). - The government conceded two prior convictions were no longer ACCA predicates but argued the two 1994 forcible-sodomy convictions still qualified under the ACCA elements clause because Oklahoma’s forcible-sodomy statute was divisible and the convictions fell under the subsection that requires force. - The district court applied the modified categorical approach, concluded § 888(B) was divisible, found Degeare pleaded to § 888(B)(3) (force-based subsection), and denied § 2255 relief. - The Tenth Circuit reviewed de novo and focused on whether § 888(B)’s alternatives are elements (divisible) or mere means (indivisible), applying Mathis and the Mathis ‘‘toolbox’’ (state-law precedents, statutory text, charging/record documents). - The court held Bruner v. State and other state-law indicators strongly suggested the alternatives are means and found the charging documents and jury-instruction materials did not ‘‘plainly’’ show the alternatives are elements; thus § 888(B) is not divisible, the modified categorical approach was improper, and Degeare’s forcible-sodomy convictions are not ACCA predicates. The ACCA enhancement was vacated and remanded for resentencing. ### Issues | Issue | Degeare's Argument | Government's Argument | Held | |---|---:|---:|---:| | Whether Okla. Stat. tit. 21 § 888(B) is divisible (alternatives = elements) or indivisible (alternatives = means) | § 888(B) alternatives are means; state precedent (Bruner) treats similar sexual-offense alternatives as ways, not separate crimes | § 888(B) is divisible; charging papers and jury instructions show convictions rested on the force-based subsection (§ 888(B)(3)) | § 888(B) is not shown to be divisible: Bruner and the statutory/record materials do not plainly establish alternatives are elements; government failed to prove divisibility | | Whether the modified categorical approach could be used to identify the subsection forming the basis of Degeare’s 1994 convictions | Modified categorical approach should not apply because statute is indivisible | Modified categorical approach applies and shows convictions under force-based subsection, satisfying ACCA elements clause | Modified categorical approach was improperly applied because statute is not divisible; convictions cannot be treated as elements-clause predicates | | Whether Degeare’s 1994 forcible-sodomy convictions qualify as ACCA violent-felony predicates under the elements clause | They do not qualify under the elements clause because § 888(B) is indivisible and (under pure categorical analysis) the statute reaches conduct that may not involve the use of force | They do qualify because the record (charging document) references forcible conduct and the government conceded only other prior convictions fell out after Johnson | Forcible-sodomy convictions do not qualify as elements-clause ACCA predicates; only one qualifying prior remains (the 2003 drug conviction) | | Whether the Johnson-based challenge to Degeare’s ACCA sentence is harmless error | Johnson eliminated the residual-clause basis for several priors; Degeare argued remaining priors insufficient to trigger ACCA | Government argued harmless because two 1994 sodomy convictions qualified under elements clause | Error was not harmless; with forcible-sodomy convictions excluded only one qualifying prior remains, so ACCA enhancement cannot stand | ### Key Cases Cited Mathis v. United States, 136 S. Ct. 2243 (2016) (framework for distinguishing elements from means and when modified categorical approach applies) Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA residual clause as unconstitutionally vague) Welch v. United States, 136 S. Ct. 1257 (2016) (holding Johnson error retroactive on collateral review) Descamps v. United States, 570 U.S. 254 (2013) (explaining pure vs. modified categorical approach and divisibility concept) Taylor v. United States, 495 U.S. 575 (1990) (demand for certainty in determining predicate-status of prior convictions) Shepard v. United States, 544 U.S. 13 (2005) (limitations on what records may be consulted when applying categorical approaches) United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) (applying Mathis tools and stressing requirement of certainty that prior necessarily qualifies) Bruner v. State, 612 P.2d 1375 (Okla. Crim. App. 1980) (state precedent treating rape statutory alternatives as different ways to commit a single crime, relied upon to treat sodomy alternatives as means) United States v. Pam, 867 F.3d 1191 (10th Cir. 2017) (illustrative use of modified categorical approach where statute found divisible) United States v. Ridens, 792 F.3d 1270 (10th Cir. 2015) (standard of review and precedents on ACCA predicate analysis)