United States v. Titties
2017 U.S. App. LEXIS 5236
| 10th Cir. | 2017Background
- Damion Tittle pled guilty in 2015 to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The plea agreement acknowledged potential application of the ACCA (mandatory minimum 15 years) but also noted a 10-year maximum if ACCA did not apply.
- The Government sought ACCA enhancement based on three prior Oklahoma convictions: two cocaine offenses (accepted as "serious drug offenses") and a 1996 conviction for feloniously pointing a firearm under Okla. Stat. tit. 21 § 1289.16.
- The district court, applying this circuit’s pre-Mathis precedent (United States v. Hood), used the modified categorical approach and relied on Tittle’s state plea/factual statement (admitting he pointed a weapon and threatened the victim) to conclude the § 1289.16 conviction was a "violent felony." It sentenced Tittle to 188 months.
- On appeal, after the Supreme Court’s decision in Mathis v. United States, the Tenth Circuit reexamined whether § 1289.16 is divisible (elements) or indivisible (means) and whether the modified categorical approach was available.
- The majority concluded § 1289.16 lists alternative means (not alternative elements), so only the categorical approach applies; because the statute criminalizes nonviolent purposes (e.g., "whimsy, humor or prank"), it is broader than the ACCA force clause and therefore not categorically a violent felony.
- The court vacated Tittle’s sentence and remanded for resentencing, holding his 188-month term exceeded the correct statutory maximum (120 months) absent the ACCA enhancement.
Issues
| Issue | Plaintiff's Argument (Tittle) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Okla. Stat. tit. 21 § 1289.16 is divisible (lists alternative elements) or indivisible (lists alternative means) for ACCA analysis | § 1289.16 lists alternative means; Mathis requires this threshold inquiry and precludes the modified categorical approach | Hood controls; the statute can be treated as divisible and the modified categorical approach applied; alternatively, the conviction qualifies regardless of approach | Held: § 1289.16 lists alternative means (indivisible); the modified categorical approach is unavailable under Mathis |
| Whether a § 1289.16 conviction is categorically a "violent felony" under the ACCA force clause | Because § 1289.16 can be violated for nonviolent purposes (e.g., whimsy/humor/prank), it is broader than the ACCA force clause and therefore not a categorical violent felony | The particular conviction (and record) shows violent conduct; statute should count or Hood remains controlling | Held: § 1289.16 is not categorically a violent felony because it criminalizes nonviolent conduct; prior conviction does not qualify |
| Whether the district court’s sentence was legal given the invalid ACCA enhancement | Tittle argued enhancement was improper, so statutory maximum is 120 months | Government argued enhancement was proper and that any error was not plain because district court followed Hood | Held: Sentence was illegal (exceeded statutory maximum without ACCA); vacated and remanded for resentencing |
| Standard of review for Tittle’s new Mathis-based argument (de novo vs plain error) | De novo because Mathis intervened and Hood foreclosed Tittle’s present argument | Plain error because Tittle did not object below to Hood-based approach | Held: Court did not need to resolve the dispute; result (illegal sentence) would be vacated under either standard; relief granted |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (clarifies that modified categorical approach applies only when statute lists alternative elements, not alternative means)
- Taylor v. United States, 495 U.S. 575 (1990) (establishes categorical approach comparing statutory elements to generic offense)
- Shepard v. United States, 544 U.S. 13 (2005) (limits what records courts may consult when applying the categorical/modified categorical approaches)
- Descamps v. United States, 570 U.S. 254 (2013) (explains narrow role of modified categorical approach and that overbroad statutes cannot serve as ACCA predicates)
- Johnson v. United States, 559 U.S. 133 (2010) (defines "physical force" in ACCA force clause as violent force)
- United States v. Hood, 774 F.3d 638 (10th Cir. 2014) (earlier panel applied the modified categorical approach to § 1289.16; superseded in part by Mathis analysis)
- United States v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005) (illegal sentence exceeding statutory maximum is per se reversible plain error)