Portion of Abrogated Opinion Survives as Law of the Case

United States v. Trent, 884 F.3d 985 (10th Cir. 2017) (OK): The panel discusses whether the law of the case doctrine defeats Trent’s appeal or whether that doctrine is inapplicable because the Supreme Court’s decision in Mathis v. United States, 136 S.Ct. 2243 (2016), created a new certainty standard to determine whether an offense qualifies for an ACCA enhancement - which the 10th Circuit had not used in Trent's direct appeal. In its prior opinion, United States v. Trent,767 F.3d 1046 (10th Cir. 2014) (Trent I), the court held Oklahoma’s conspiracy statute is divisible and using the modified categorical approach found that a conviction under this statute is a ‘serious drug offense’ as defined in the ACCA. That opinion was expressly abrogated by Mathis. However, the Trent II panel found only one of the two bases for its earlier holding was undone by Mathis. Its true elements based approach survived. That part of the opinion becomes the law of the case unless Mathis “announced a contrary decision of the law applicable to the relevant issue.” Trent argued that Mathis created an intervening change in the law because courts now are required to be certain that a provision in a criminal statute is an element and in Trent I the court was not certain that the object of a conspiracy was an element of Oklahoma’s conspiracy statute. The panel disagreed. It said that Mathis comported with the certainty standard from Taylor v. United States, 495 U.S. 575 (1990). And the approach used in Trent I, although not addressing certainty directly, was consistent with Mathis. Implicitly, the court was certain the statute was divisible because its “divisibility analysis contemplate[d] a collective assessment of case law and other materials.” Thus, Trent I’s ruling that the conspiracy statute contained alternate traditional elements and was therefore divisible, was grounded in certainty. That portion of the opinion survived Mathis, and became law of the case.