30 F.4th 1198
10th Cir.2022Background:
- Ira Lee Wilkins pleaded guilty in Texas to aggravated robbery and later was federally sentenced for unlawful possession of a firearm; the district court treated his Texas aggravated robbery as a "crime of violence" under U.S.S.G. § 4B1.2(a)(1), increasing his guideline range.
- The central legal question was whether Texas robbery/aggravated robbery is divisible (alternative statutory paragraphs = separate elements) or indivisible (alternative means), which determines whether the modified categorical approach may be used.
- Texas robbery § 29.02(a) lists alternative theories with different mens rea: subsection (1) permits recklessness for bodily-injury robbery; subsection (2) requires intent/knowledge for threat-based robbery; aggravated robbery § 29.03(a) adds aggravators (e.g., deadly weapon).
- Wilkins argued (on appeal for the first time) that the Texas statute is indivisible and that Borden v. United States (recklessness is insufficient for a violent-felony) precludes treating his prior as a "crime of violence."
- The district court relied on the modified categorical approach and Wilkins’s plea/stipulation (which admitted intentionally/knowingly threatening the victim and using a firearm) to conclude the prior conviction was a crime of violence.
- The Tenth Circuit applied plain-error review and concluded the district court would not have committed an obvious error treating the statutory alternatives as elements and, on the record, Wilkins’s conviction qualifies as a crime of violence; the sentence was affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Divisibility of Texas robbery statute (elements v. means) | Alternatives are mere means; statute indivisible | Alternatives are separate elements (different mens rea and numbered paragraphs) | Under plain-error review, court: reasonable to treat alternatives as elements; not an obvious error |
| Effect of mens rea after Borden (recklessness) | Reckless variants mean offense cannot be a "crime of violence" | Wilkins pleaded to intentional/knowing threat conduct; Borden inapplicable to admitted conduct | Wilkins’s admitted intentional/knowing threat (with a deadly weapon) satisfies the guidelines’ requirement that violence entail mens rea > recklessness |
| Application of modified categorical approach to plea record | (Wilkins maintains the prior is not a qualifying violent offense) | Use plea, indictment, and stipulation to identify which statutory alternative was the basis for conviction | Modified categorical approach shows Wilkins admitted the threat-with-weapon offense; it is a crime of violence; sentence affirmed |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (defines divisibility inquiry for categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (permits limited "Shepard" records peek under modified categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (limits records usable to identify the offense of conviction)
- Borden v. United States, 141 S. Ct. 1817 (2021) (recklessness cannot qualify as violent-felony mens rea)
- United States v. Kendall, 876 F.3d 1264 (10th Cir. 2017) (describes categorical/modified categorical framework)
- United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) (explains divisibility and means/elements distinction)
- United States v. Cantu, 964 F.3d 924 (10th Cir. 2020) (plain-error context and divisibility analysis)
- United States v. Degeare, 884 F.3d 1241 (10th Cir. 2018) (addresses divisibility and mens rea distinctions)
- United States v. Garrett, 24 F.4th 485 (5th Cir. 2022) (treated Texas robbery alternatives as separate elements)
- United States v. Ash, 7 F.4th 962 (10th Cir. 2021) (applies Borden to sentencing-guidelines "crime of violence" analysis)