When in doubt, statute should be considered indivisible

United States v. Degeare, 2018 WL 1280278 (March 13, 2018) (OK): An important case to help you argue a statute is not divisible and therefore, the categorical approach applies. Generally, when we argue a prior conviction cannot be used as a sentencing enhancement predicate, we are better served by an indivisible statute and the accompanying categorical approach. Degeare can fortify that argument. The court made two very important rulings. First, a court “must be certain that the violent felony [or crime of violence] moniker necessarily applies to a particular offense before [it] can treat that offense as an ACCA predicate.” Second, and perhaps more importantly, unless the court is “certain that a statute’s alternatives are elements rather than means, the statute isn’t divisible and [the court] must eschew the modified categorical approach.” In other words, if the evidence “is merely in equipoise, the modified categorical approach won’t apply.”

In this case, the panel uses what is calls “tools” from the “Mathis toolbox” to analyze whether it can be certain that Oklahoma forcible sodomy is divisible. Those tools include - the statute, case law interpreting it, jury instructions and the charging documents. After employing these tools, the panel remained uncertain that the statute was divisible. Consequently, it held that the district court incorrectly used the modified categorical approach. Since the government conceded forcible sodomy is not a violent felony under the pure categorical approach, that offense cannot be used as an ACCA predicate.