by Dale Chappell

The U.S. Court of Appeals for the Eleventh Circuit held on April 8, 2020, that a prior conviction under Georgia’s terroristic threats statute was overbroad and therefore failed to meet the elements clause of the Armed Career Criminal Act (“ACCA”).

Najee Oliver was sentenced as an armed career criminal based on two prior drug convictions and a Georgia terroristic threats conviction. He had argued in the district court that Georgia’s statute fell outside ACCA parameters, objecting to the presentence report’s (“PSR”) conclusion that he had to be sentenced under the ACCA’s 15-year mandatory minimum because of those priors.

The district court disagreed with Oliver and imposed the 15-year sentence.

On appeal, Oliver raised his preserved error, again arguing that the terroristic threats statute is overbroad because it includes damage to property without requiring personal injury. Having the question properly before the Court, the Eleventh Circuit agreed with Oliver and held the statute is overbroad for those very reasons and, for the first time, discussed why the statute does not meet the ACCA’s elements clause.

Under the ACCA, a prior conviction for a “violent felony” qualifies if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). In determining whether a prior conviction’s statute contains this element, a court uses the “categorical approach,” which requires consideration of only “the elements of the statute of conviction, not the specific conduct of the particular offender,” the Court reiterated. United States v. Davis, 875 F.3d 592 (11th Cir. 2017). However, if those elements “effectively create several different crimes” under the same statute, it is a “divisible” statute allowing the sentencing court to resort to the “modified categorical approach.” Id. This includes looking at state court documents to determine what part of the statute — which crime — formed the prior conviction. Mathis v. United States, 136 S. Ct. 2243 (2016).

But different ways (or “means”) to violate a statute does not mean it has different elements comprising different crimes. This distinction was clarified by the Supreme Court in Mathis, which explained that elements are “constituent parts of a crime’s legal definition,” and means are “various factual ways of committing some component of the offense.” This distinction was critical in deciding Oliver’s appeal.

Under Georgia’s terroristic threats statute, O.C.G.A. § 16-11-37(1), “a person commits the offense of a terroristic threat when he or she threatens [1] to commit any crime of violence, [2] to release any hazardous substance ... or [3] to burn or damage property.” The Court noted that three types of threats qualify under the statute. But are they separate crimes to allow resort to the modified approach?

Eleventh Circuit precedent confused the matter. It was largely assumed prior to Oliver’s appeal that Georgia’s terroristic threats statute fell under the ACCA’s elements clause. In United States v. Greer, 440 F.3d 1267 (11th Cir. 2006), the court held that the district court erred in refusing to impose an ACCA sentence based on a prior Georgia terroristic threats conviction. The court said that there was “no real dispute” that the prior convictions’ indictments proved the three convictions were crimes of violence under the ACCA. The court relied on the district court’s determination that the priors were violent felonies under the ACCA. The defendant challenged that aspect, but the Eleventh Circuit didn’t analyze it any further. In other words, the court assumed the Georgia statute qualifies under the ACCA because it didn’t have to decide the issue.

The same defendant in Greer later filed a motion under 28 U.S.C. § 2255 to vacate his sentence, arguing Johnson v. United States, 135 S. Ct. 2551 (2015), undid his ACCA sentence. But the parties agreed on appeal of the denial of that motion that the terroristic-threats statute is divisible, and the court assumed it was without any further analysis.

Oliver’s case finally brought that specific question properly before the Eleventh Circuit. Applying Mathis to the terroristic threats statute, the Court used the Supreme Court’s three-step Mathis framework in evaluating whether a prior conviction is divisible. First, the Court looked to the statute itself, which it said did “not speak plainly to whether the statute’s alternatives are elements or means.” Next, it turned to state case law to see how the courts treat the statute. The Court found “no Georgia appellate decision has definitively answered the question” of whether the statute contains different crimes to be charged. Finally, the Court looked at the jury instruction (equally inconclusive) and Oliver’s prior state records. But Oliver’s old indictment was never made part of the federal record and was not available for the Court to use.

The Court made a point about looking to Oliver’s state court records. The Government argued that since the PSR referred to the state indictment, the Court could rely on that to find that it charged Oliver with the “crime of violence” threat provision.

The Court rejected this position: “Even if Mathis permits us to peek at the language in Oliver’s indictment, it is inconclusive, as it does not by necessity mean that the term is an element.” Mathis said that an indictment “could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements.” That is, the Court said it was not so much whether Oliver was charged with the “crime of violence” threat but rather how the indictment referred to the statute in charging Oliver.

Because none of the Mathis methods “speak plainly” as to whether the statute is divisible, “we must resolve the inquiry in favor of indivisibility,” the Court concluded. As such, the statute is overbroad, and thus, the Court stated “that it categorically does not qualify as an ACCA predicate offense.” Therefore, Oliver doesn’t have three qualifying predicate offenses under the ACCA, the Court ruled.

Accordingly, the Court vacated Oliver’s ACCA sentence and remanded. See: United States v. Oliver, 955 F.3d 887 (11th Cir. 2020).

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