Monday, April 10, 2017

Oklahoma Statute Prohibiting Pointing a Firearm Is Not An ACCA Predicate; Helpful Discussion of Categorical Approach and Plain Error Review

U.S. v. Titties, 2017 WL 1102867 (3/24/17) (Okl.) (Published) - Sorry about the title. Oddly, a footnote reveals the defendant's real name is Tittle and that name is used throughout the opinion. Why the title is different is a mystery. Anyway, the 10th applies Mathis to an Oklahoma statute that prohibits pointing a firearm, finds that the modified categorical approach can't be used because various purposes for pointing the firearm are means, not elements, finds at least one of the purposes does not satisfy the "physical force" clause, finds Mr. Tittle is not subject to the ACCA on plain error review and overrules two prior bad cases in the process.

The 10th, (Judges Matheson & Briscoe) rejects the government's claim of invited error. Before the district court, Mr. Tittle didn't object to the court's use of the modified categorical approach, given 10th precedent against him. The 10th says Mr. Tittle didn't invite error. He just recognized binding precedent at the time.

The relevant statute prohibits pointing a firearm without lawful cause for the purpose of threatening, etc. or "for purposes of whimsy, humor or prank." Underlying pleadings indicated Mr. Tittle violated a part of the statute that would fit within the "physical force" clause. Under Mathis, the 10th had to ask the question whether all the purposes were just means to commit the offense or elements of the offense. If the former, then the 10th couldn't engage in the modified categorical approach. First, the 10th recognizes Mathis overrules U.S. v. Trent, 767 F.3d 1046 (10th Cir. 2014), which held it didn't matter for ACCA purposes whether alternative terms were means or elements. Then the 10th applies the analysis Mathis approved. Importantly, the 10th stresses that Taylor demands that courts be "certain" an offense qualifies as a predicate before imposing an ACCA sentence. The 10th finds that state law indicates the purposes are means, not elements because: case law lumps the means together in describing the offense, e.g. the statute prohibits pointing a firearm "with some kind of improper purpose," and "the act must be done with at least one of several purposes, including" some of the purposes, not all; and the UJI lists the purposes with slashes in between them. And the charging document in Mr. Tittle's case indicates the purposes are means, rather than, elements, because it lists all the different purposes. So no modified categorical approach. This means U.S. v. Hood, 774 F.3d 638 (10th CIr. 2014), which applied the modified categorical approach to the same statute, is overruled on that basis.

The 10th provides a helpful footnote on plain error. It rejects the government's argument that, given all the analysis the 10th went through to get to the result, the error was not plain. But the 10th responds: "an illegal sentence triggers per se reversible plain error." The 10th goes on to say the government overstates its contention that plain error requires an on-point decision. That's not always a requirement, the 10th says. And the government's stress that the means/elements decision here is uncertain actually helps the defendant, the 10th says. The government has the burden to definitely prove the conviction is an ACCA predicate.

Finally, the 10th follows the Hood's decision that the statute's "whimsy, humor or prank" part does not qualify under the "physical force" clause. The 10th distinguishes the Oklahoma statute from the NM Agg assault statute that the 10th held did satisfy the "physical force" clause in U.S. v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010). NM's statute requires purposeful threatening that actually caused the victim to fear an imminent battery. That's not true for pointing a firearm with whimsy in mind. To top it off, the 10th says some good things about "realistic probability." The government says Mr. Tittle didn't provide any case where someone was actually prosecuted for pointing a gun in jest and so he didn't show there was a reasonable probability of prosecution on that basis, as is often required. The 10th says the lack of prosecution doesn't matter. The plain language of the statute allows such a prosecution and that is all that matters. The 10th notes that the Mathis Court never addressed the reasonable probability question.

Judge Phillips dissents. He finds Shepard v. U.S, 544 U.S. 13 (2005), to be significant. He thinks Shepard amounted to a holding that the listing of "buildings, structures, vehicles or vessels" was a listing of elements,11 years before Mathis. He then decides the Oklahoma statute is more like the Massachusetts statute in Shepard than the Iowa statute in Mathis. He's unconvinced by the majority's analysis of state law.