Lead Opinion
Defendant Richard Trent appeals his conviction and sentence for being a felon in possession of a firearm. He raises five issues that can be disposed of briefly and a challenging issue about whether we can apply what is called the “modified categorical approach” to determine whether his prior felony is a “serious drug offense” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). On the ACCA issue we hold that the general Oklahoma conspiracy statute is divisible and therefore subject to the modified categorical approach, and that Defendant’s prior violation of that statute was a serious drug offense because the object of the conspiracy was manufacturing methamphetamine. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
On August 13, 2012, Defendant visited the home of Michael Kimberly in Geróni-mo, Oklahoma, with Lloyd Robinson and Angela Keller. While the three were there, a neighbor called 911 to report someone standing outside the home with a gun. The neighbor described the person as a white man with tattoos on his arms who was wearing blue jeans and no shirt. In a later 911 call, the neighbor said that the man had left the house in a green Volvo. A police officer responding to the call pulled over a green Volvo a few minutes later and found Robinson (a black man) behind the wheel, Keller in the front passenger seat, and Defendant in the back seat. The officer removed them from the car and searched it, finding a handgun in the back seat. It was not in plain view but wedged behind the arm rest, which was pushed out about halfway. When the officer ran the criminal histories of the three, the dispatcher told the officer that Keller and Defendant had prior felony convictions, and they were arrested. Robinson was allowed to leave in the Volvo, which belonged to his mother. Defendant was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The principal issue at trial was whether the gun in the car was Defendant’s. The government put on considerable evidence to support the charge. Aaron Bruno, the owner of the gun, testified that he had left it temporarily with Heather Widner. She testified that Defendant had sent her a text message to say that he “needed a burner” and that she had given him Bruno’s pistol. R., Vol. 3 at 36. She admitted that her testimony differed from her statement to investigators a week earlier, when she had said that Defendant had come over to smoke marijuana with her the night before the incident and that she had not given him the gun. Robinson testified that at Keller’s request he picked up Keller and Defendant and drove them to a house in Gerónimo. He had never before met Defendant or been to the house. He said that he saw Defendant with a gun while at the house. The neighbor also identified Defendant as the man he had seen holding a gun.
Defendant called several witnesses to try to show that the gun was Robinson’s. Keller testified that the day before the incident, she had gone with Robinson to the house in Gerónimo, where he gave methamphetamine to a young woman who refused to pay for it and ran into the house, leaving a pit bull outside so that Robinson and Keller could not retrieve the money he was owed. Keller also said that she saw a gun in Robinson’s purse the next day, that it was his idea to go back to the house in Gerónimo, and that Defendant just went along for the ride and did not have a gun. The defense presented two other witnesses whose testimony corrobo
The jury convicted Defendant. At sentencing he argued that he was not subject to a mandatory minimum sentence under the ACCA. He conceded that he had convictions for two serious drug offenses but contended that his conviction under Oklahoma’s general conspiracy statute did not qualify as the third conviction necessary for the ACCA enhancement. The district court disagreed and sentenced him to 196 months in prison plus five years of supervised release.
II. DISCUSSION
We can easily reject five of Defendant’s challenges to his conviction and sentence: (1)that the evidence was insufficient to support the verdict; (2) that the district court improperly admitted into evidence his 2007 conviction as a felon in possession of a firearm to show knowledge in the 2012 case; (3) that a jury instruction improperly cited to the sentencing provision of the statute, although it did not state the provision’s contents; (4) that the court improperly gave an investigative-techniques jury instruction; and (5) that his sentence was substantively unreasonable. We then turn to the subtle question he raises under the ACCA.
A. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to support the jury’s verdict. ‘We review sufficiency of the evidence claims de novo, but examine the evidence in the light most favorable to the government and ask only whether any rational juror could have found [the defendant] guilty beyond a reasonable doubt.” United States v. Oldbear,
Defendant’s insufficiency argument is essentially that some of the prosecution witnesses were not credible. Such argument is doomed to failure. In assessing the sufficiency of the evidence, we will ordinarily not “consider witness credibility.” Id. at 823. “We will only disregard testimony as incredible if it gives facts that the witness physically could not have possibly observed or events that could not have occurred under the laws of nature.” United States v. Oliver,
B. Admission of Previous Conviction
Defendant argues that it was error under Fed.R.Evid. 404(b) to admit into evidence his previous conviction as a felon in possession of a firearm to show that he knowingly possessed the firearm found in Robinson’s car. Rule 404(b)(1) states: “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” But Rule 404(b)(2) does allow such evidence to be admitted for other purposes, such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” We review for abuse of discretion the district court’s decision to admit evidence. See United States v. Moran,
Defendant’s argument is contrary to controlling precedent. In Moran, also a prosecution for felon in possession of a firearm, the defendant was stopped while driving an SUV. There were no other occupants. See id. at 1139. The officer who stopped him saw in the back seat “a rifle stock sticking out of an unzipped rifle
Defendant tries to distinguish Moran on the ground that the facts there were different. He points out that in Moran the defendant was the sole occupant of the vehicle, that his girlfriend owned it, that he had regularly been seen driving the vehicle in the past, and that the rifle was in plain view. See id. at 1138-39. But he fails to explain why those facts would make the prior conviction more probative than in this case. And, in our view, the facts that Defendant was not the sole occupant and that the gun was not in plain view actually make the question of knowing possession more debatable in this case, which weighs in favor of admission despite the possibility of unfair prejudice; when an issue is not seriously disputed, there is little justification for admitting evidence that risks unfair prejudice. See Fed. R.Evid. 403 (relevant evidence may be excluded if “its probative value is substantially outweighed by a danger of ... unfair prejudice”); United States v. Tan,
Following Moran, we hold that the district court did not abuse its discretion in admitting Defendant’s prior conviction. We caution, however, that courts should be hesitant to admit such evidence because of the great danger of unfair prejudice. Indeed, the district court here would not have abused its discretion had it refused to admit the evidence of the conviction. See United States v. McGlothin,
C. Penalty Citation in Jury Instructions
The indictment stated that Defendant violated “Title 18, United States Code, Section 922(g)(1), the penalty for which is found in Title 18, United States Code, Section 924(a)(2).” R., Vol. 1 at 10. Defendant contends that the district court erred when it allowed the indictment, including this citation to the statutory penalty, to be included in the jury instructions. He points out that § 924(a)(2) states that the maximum punishment is 10 years’ imprisonment, much less than he actually faced under the ACCA; and he suggests that a juror could have looked up the cited provision and been more likely to find him guilty of the crime based on the belief that the punishment would not be as harsh as it really was.
This is one of the more imaginative arguments presented to this court. We are not persuaded. There is no indication in the record, or even an allegation by Defendant, that any juror was familiar
D. Investigative-Techniques Instruction
Defendant asserts that the jury was erroneously instructed that the government was not required to use all the investigative techniques available to it. He argues that the instruction undercut his theory' that the government did not discover the real possessor of the gun because it conducted a faulty investigation. But the instruction did not prevent him from arguing that a better investigation would have exonerated him. As we said in United States v. Cota-Meza,
E. Substantive Reasonableness of the Sentence
Defendant argues that his sentence is substantively unreasonable because it is longer than necessary to accomplish the sentencing goals found in 18 U.S.C. § 3553(a). He argues that his sentence is too high because there is no evidence that he used the gun in an offensive manner; he was found with no other illicit items; his ADHD has led to his problems with the law, but he is fundamentally a good person; his criminal history shows that he has not been arrested for violent conduct, so he is not a danger to the community; and the sentence impermissibly punishes him mostly for past crimes, not the current crime. But a sentence, such as Defendant’s, that falls below the correctly calculated guideline range is “presumptively reasonable against an attack by a defendant claiming that the sentence is too high.” United States v. Balbin-Mesa,
F. Armed Career Criminal Act
Defendant was sentenced under the ACCA, which increases the penalty for being a felon in possession of a firearm if the defendant has three previous convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). He concedes that he had two convictions for serious drug offenses under the ACCA. But he challenges the characterization of a 2007 Oklahoma conviction for conspiracy as a serious drug offense. Our review is de novo. See United States v. Delossantos,
The ACCA provides that a state crime is a “serious drug offense” if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii) (internal quotation marks omitted). To determine whether a conviction qualifies under the ACCA, the court will ordinarily apply what is called the
Under the categorical approach, Defendant’s conspiracy conviction would not be a conviction of a serious drug offense. Oklahoma’s general conspiracy statute states: “If two or more persons conspire ... [t]o commit any crime[,] ... they are guilty of a conspiracy.” Okla. Stat. Ann. tit. 21, § 421(A) (West 1999). Obviously, the statute could be violated in many ways that have nothing to do with drugs.
At times, however, a court may use what is termed the “modified categorical approach” to determine whether a prior conviction is for a qualified offense under the ACCA. This approach is warranted when a statute is divisible: that is, when it “sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile.” Descamps,
The issue before us is whether the modified categorical approach can be used to determine whether the conspiracy committed by Defendant is a serious drug offense. The information to which Defendant pleaded guilty states the charge as “conspiracy to manufacture a controlled dangerous substance” and states that Defendant “conspir[ed] and agree[d] ... to commit the crime of Manufacture of Methamphetamine.” R., Vol. 1 at 104 (full capitalization omitted). Is it permissible for the court to take into account the drug-related specifics of this conspiracy charge?
1. Descamps
Determining whether a court is permitted to use the modified categorical approach can be difficult. The Supreme Court’s most recent guidance on the question came in Descamps,
Descamps argued that his burglary conviction did not qualify under the ACCA because the California offense is broader than generic burglary. See Descamps,
The Ninth Circuit disagreed, relying on its recent en banc opinion in United States v. Aguila-Montes de Oca,
The Aguila-Montes court continued its analysis with a discussion of divisible statutes, which it stated (correctly) are clearly amenable to the modified categorical approach. See id. at 926. “A divisible statute,” it said, “contains a list of statutory phrases, at least one of which satisfies an element of a given generic crime.” Id. at 924. ■ As an example, “if the statute of conviction contains the elements of (1) harmful contact and (2) use of a gun or an axe, the modified categorical approach can be used to determine whether the trier of fact was actually required to find that the defendant used a gun.” Id. at 927. After analyzing the case law and concluding that Supreme Court precedent left open whether the modified categorical approach is limited to divisible statutes, the court explained why it thought missing-element statutes should be treated the same. See id. at 927-37.
The linchpin of the Ninth Circuit’s analysis was that missing-element statutes are
In both cases, courts must rely on the same set of documents reflecting the facts necessarily found by the trier of fact in support of thg conviction; they cannot look to any different documents or facts when considering a conviction under a missing-element statute than they would when reviewing a conviction under a divisible element statute. If the defendant could not have been convicted of the offense of conviction unless the trier of fact found the facts that satisfy the elements of the generic crime, then the factfinder necessarily found the elements of the generic crime.
Id. at 937. Applying the Aguila-Montes approach, the Ninth Circuit in Descamps held that the defendant had been convicted of generic burglary. See United States v. Descamps,
The Supreme Court reversed. It held that the modified categorical approach cannot be used “when the crime of which the defendant was convicted has a single, indivisible set of elements.” Descamps,
The Court identified three reasons for adopting this elements-based focus. First, the text of the ACCA speaks in terms of a defendant’s “previous convictions.” Id. at 2287 (internal quotation marks omitted). This focus on convictions, rather than the defendant’s acts, implies that “Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Id. (internal quotation marks omitted). In particular, the statute instructs courts “to treat every conviction of a crime in the same manner.” Id.
Second, the categorical approach avoids a collision with the Sixth Amendment requirement that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 2288 (internal quotation
Finally, the Court observed that it is often difficult for courts to determine the facts underlying prior convictions and doing so can be unfair, particularly when the defendant may not have thought it important to challenge collateral facts that were irrelevant to guilt under the statute. See id. at 2289. Under the Ninth Circuit’s approach, it said, “sentencing courts ... would have to expend resources examining (often aged) documents for evidence that a defendant admitted in a plea colloquy, or a prosecutor showed at trial, facts that, although unnecessary to the crime of conviction, satisfy an element of the relevant generic offense.” Id. The prospect of such “daunting difficulties and inequities” demands a different approach. Id. (internal quotation marks omitted). Only when a statute is divisible can the modified categorical approach satisfy these three policy considerations, as use of the modified categorical approach in that situation will conform to statutory language, satisfy the Sixth Amendment, and lead to fair results. See id. at 2289-91.
Accordingly, the Court rejected application of the modified categorical approach when the statute of conviction has a single set of elements, whether it “has an over-broad or missing element.” Id. at 2292. The Court did not, however, suggest in any way that it was retreating from its application of that approach in previous cases: When a statute defines the offense “alternatively, with one statutory phrase corresponding to the generic crime and another not,” id. at 2286, courts may examine documents such as an indictment or plea agreement to determine “which statutory phrase was the basis for the conviction,” id. at 2285 (internal quotation marks omitted).
2. Cross-References to Other Statutes
That leads us, however, to another question. Must the alternative “statutory phrases” appear in the statute of conviction if the court is to apply the modified categorical approach? In particular, is that approach proper when the statute of conviction cross-references other statutes? For example, a state statute could define a crime of assault that involves use of a “weapon.” Assume that the crime would be ACCA-eligible only if the weapon used was a gun. If another provision of that state’s criminal code defines “weapon” as a “gun, knife, or bat,” then the definition of the crime contains a list of alternatives.
In our view, such a statute is divisible. Although we did not use the word divisible, we previously held as much. In Ventura-Perez,
Similarly, the Sixth Circuit considered an Ohio ineitement-to-violence statute, which criminalizes “knowingly engaging in conduct designed to urge or incite another to commit any offense of violence” under certain circumstances. United States v. Denson,
We also note that two other circuits adopted the same analysis before Des-camps. The Third Circuit considered a Delaware statute that prohibited wearing body armor “during the commission of a felony” and found that the statute “incorporates by reference the disjunctive list of all felonies,” thereby justifying use of the modified categorical approach. United States v. Gibbs,
This approach is consistent with pre-Descamps Supreme Court precedent. In James,
3. Application to Oklahoma Conspiracy Statute
We now turn to the application of divisibility doctrine to this case. In 2007, Defendant pleaded guilty to a violation of Oklahoma’s general conspiracy statute, which reads: “If two or more persons conspire ... [t]o commit any erime[,] ... they are guilty of a conspiracy.” Okla. Stat. Ann. tit. 21, § 421(A). Like the Florida attempt statute in James, the Oklahoma conspiracy statute cross-references all state criminal offenses. We hold that it is divisible for purposes of the ACCA. The Oklahoma legislature could have chosen to write out, as part of the conspiracy statute, a list of all Oklahoma crimes. But there was no reason to do so because Oklahoma already has a finite list of conduct that it considers criminal: the crimes set forth in the Oklahoma Criminal Code. Although this list is lengthy, it is not “hypothetical.” Descamps,
Because the Oklahoma conspiracy statute is divisible, we examine the specifics of Defendant’s conviction. The object of the alleged conspiracy was the manufacture of methamphetamine. The amended information to which he pleaded guilty listed the charge as “conspiracy to manufacture a controlled dangerous substance” and stated that Defendant “conspire[ed] and agree[ed] ... to commit the crime of Manufacture of Methampehtamine.” R., Vol. 1 at 104 (full capitalization omitted). Likewise, in his plea colloquy Defendant stated, “I conspired to manufacture meth-amphetamines.” Aplee. Br. at 73.
The final step in this analysis is easy. Does the crime “conspiracy to manufacture methamphetamine” satisfy the definition of serious drug offense in the ACCA? A state crime is a “serious drug offense” if it “in-volv[ed] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii) (internal quotation marks omitted). We agree with the other circuits that have read the “involving manufacturing” language broadly to include attempts to manufacture or conspiracy to manufacture. See, e.g., United States v. Williams,
4. Meaning of “Element”
The above discussion would seem to resolve Defendant’s claim. But a subtle issue remains. Yes, the various statutes cross-referenced by the Oklahoma conspiracy statute provide the alternative “statutory phrases” necessary for application of the modified categorical approach. But Descamps, rather than just using the language statutory phrases, generally speaks in terms of “alternative elements” or “potential offense elements.” Descamps,
As the Supreme Court has stated, “Calling a particular kind of fact an ‘element’ carries certain legal consequences. [For example,] a jury ... cannot convict unless it unanimously finds that the Government has proved each element.” Richardson v. United States,
If Descamps adopted this traditional view of what an element is, then the first-degree-murder statute in Arizona would not be divisible, and as a general matter a court could never use the modified categorical approach without first determining whether the alternatives set forth in a criminal statute are alternative elements or just alternative means. As Justice Alito explained in his dissent in Descamps, such an inquiry would often be difficult because of the dearth of case law regarding whether a statute’s alternatives are alternative means or alternative elements. See Descamps,
This distinction between elements and means could have important consequences in applying the ACCA. Consider the previously discussed Ninth Circuit decision in Coronado. Under the categorical approach the California conviction did not qualify as a serious drug offense because possession of khat would not violate the federal CSA, so not all violations of the California statute would be serious drug offenses. That is, one could not look solely at the offense of conviction (violation of the California statute) and know that the defendant must have committed a serious drug offense. But the modified categorical approach could not be used if the identity of the drug possessed by the defendant is not an element of the California drug statute. And in the Richardson/Schad sense of that word, the identity of the drug apparently is not an element. California case law suggests that the jury need not agree on which controlled substance the defendant possessed. In Ross v. Municipal Court,
Nevertheless, we think that the Ninth Circuit got it right in Coronado. It is necessary to keep in mind the context in which Descamps used the terms alternative elements and potential offense elements. The key feature of divisibility in Descamps is that “[a] prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives^] ... [a]nd the jury, as instructions in the case will make clear, must then find that element, unanimously and beyond a reasonable doubt.”
Moreover, we can think of no better shorthand than the word elements to capture the Court’s concerns in explaining the proper sphere of the modified categorical approach. At times (as with the California drug statutes) the alternative statutory phrases may not be “elements” in the full sense of the term as used in Richardson and Schad, but for the purposes of modified-categorieal-approaeh analysis, that “shortcoming” is generally irrelevant. We think that is the thrust of the Court’s response to Justice Alito’s Descamps dissent, in which he argued that the Court’s
[I]f the dissent’s real point is that distinguishing between ‘alternative elements’ and ‘alternative means’ is difficult, we can see no real-world reason to worry. Whatever a statute lists (whether elements or means), the documents we approved in Taylor [v. U.S.,495 U.S. 575 ,110 S.Ct. 2143 ,109 L.Ed.2d 607 (1990) ] and Shepard [v. U.S.,544 U.S. 13 ,125 S.Ct. 1254 ,161 L.Ed.2d 205 (2005)]— i. e., indictment, jury instructions, plea colloquy, and plea agreement—would reflect the crime’s elements. So a court need not parse state law in the way the dissent suggests: When a state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense.
Descamps,
A prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives. And the jury, as instructions in the case will make clear, must then find that element, unanimously and beyond a reasonable doubt.... A later sentencing court need only check the charging documents and instructions ... to determine whether in convicting a defendant under that divisible statute, the jury necessarily found that he committed the ACCA-qualifying crime.
Id. at 2290 (citation omitted). This explains, we believe, why no Supreme Court opinion addressing the modified categorical approach has ever found it appropriate to examine whether an alternative statutory phrase is an “element” in the sense of the word used in Richardson and Schad.
5. Alternative Analysis
Nevertheless, our conclusion may be wrong. Therefore, we address whether Oklahoma’s general conspiracy statute is divisible even if we have misconstrued Descamps. That is, we inquire whether the object of the conspiracy is an element of the Oklahoma offense in the traditional sense: Must the jury agree unanimously on what crime the conspirators agreed to commit? The question may have a negative answer in some jurisdictions. See e.g., People v. Vargas,
We have not found an opinion by an Oklahoma court explicitly stating that the jury must unanimously agree beyond a reasonable doubt on the object of the agreement that constitutes the conspiracy. But decisions of the state’s highest criminal court, the Oklahoma Court of Criminal Appeals (OCCA), are suggestive. One opinion said that “[t]he statutory elements of a conspiracy are (1) an agreement to commit the crime charged and (2) an act by one or more of the parties in furtherance of the conspiracy, or to effect its purpose.” Davis v. State,
We agree with the Fourth Circuit that to determine the elements of an offense, we should “consider how [the state’s] courts generally instruct juries with respect to that offense.” United States v. Royal,
Also supporting our conclusion is the Supreme Court’s analysis in Richardson, which had to decide what the elements are of the federal continuing-criminal-enterprise (CCE) statute. See
Although the Supreme Court’s interpretation of a federal statute is not controlling in determining how Oklahoma would interpret its state law, the Court’s analysis is persuasive. If an Oklahoma jury were permitted to convict a defendant for conspiracy without agreeing on the object of that conspiracy, it is likely that similar unfairness could occur. The Oklahoma conspiracy statute refers to an even broader range of underlying criminal activity
We conclude that even if the Supreme Court was using the term elements in its traditional sense, Oklahoma’s conspiracy statute is divisible and the modified categorical approach is appropriate.
Finally, Defendant argues that it is unfair to use the modified categorical approach to examine his conspiracy conviction because he and “the other involved parties treated [the] crime outside the drug statutes,” Aplt. Br. at 52, by charging him under the general conspiracy statute, Okla. Stat. Ann. tit. 21, § 421(A), rather than under the conspiracy statute restricted to drug offenses, see Okla. Stat. Ann. tit. 63,' § 2-408 (1989). But there can be no doubt that he pleaded guilty to an offense that satisfied the requirements of the ACCA. Even if he did not anticipate this consequence of his conviction (and we have no evidence on that one way or the other), we see no unfairness. He knew the elements of the crime he was pleading guilty to, and that is the only fairness consideration discussed in Descamps.
Because Defendant had been convicted of three previous “serious drug offenses,” the sentence enhancement under the ACCA was proper.
III. CONCLUSION
We AFFIRM Defendant’s conviction and sentence.
Notes
. The Ninth Circuit also defined "broad element” statutes, which "contain[] an element that encompasses the generic element but cover[ ] a broader range of conduct than the generic element.” Aguila-Montes de Oca,
. The parties also argue over whether the requirement of an overt act in a conspiracy statute changes our analysis about whether to use the modified categorical approach. This argument is based primarily on two of our decisions, United States v. King,
. Judge Seymour does not join § 11(F)(4).
Concurrence Opinion
concurring:
I join the opinion except for Section 11(F)(4).