Summaries of Selected Opinions, 0617 COBJ, Vol. 46 No. 6 Pg. 95
| Author | Cobar Host, J. |
U.S. Court of Appeals for the Tenth Circuit
Cobar Host, J.
Summaries of Selected Opinions
Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: www.cobar.org (click on "Opinions/Rules/Statutes").
No. 15-6236. United States v. Titties. 3/24/2017. W.D.Okla. Judge Matheson. Armed Career Criminal Act—Application of Modified Categorical Approach.
Defendant pleaded guilty to being a felon in possession of a firearm. The district court enhanced his sentence to a term of 188 months, pursuant to the Armed Career Criminal Act (ACCA), which prescribes a mandatory minimum term of 15 years when a defendant has three previous convictions for a violent felony, a serious drug offense, or both.
On appeal, defendant argued that he is not subject to an ACCA-enhanced sentence because one of his three prior offenses, his Oklahoma conviction for feloniously pointing a firearm, did not constitute a "violent felony" as defined by the ACCA. If a crime’s elements satisfy the ACCA definition, the offense counts as an ACCA predicate. To make this determination, prior Tenth Circuit authority had prescribed application of the "modified categorical approach" to the Oklahoma statute under which defendant was convicted. The modified categorical approach is used to determine the relevant elements when the statute of conviction is divisible in that it contains more than one crime. Applying that approach, the district court concluded that the prior Oklahoma conviction was for a "violent felony." But the Tenth Circuit’s prior approach was based on an understanding that the modified categorical approach applies regardless of whether a statute’s alternative terms describe (1) different means of committing a single crime, or (2) different elements delineating separate crimes. Intervening Supreme Court authority in Mathis v. United States has clarified that the modified categorical approach applies only when the statute lists alternative elements.
Following Mathis, the Tenth Circuit determined that the Oklahoma statute listed only alternative means, not alternative elements, and was therefore not divisible. Thus, the modified categorical approach did not apply, and the Tenth Circuit evaluated the Oklahoma statute using a categorical approach. Under that approach, a conviction under the Oklahoma statute did not categorically constitute a violent felony, the ACCA sentencing enhancement did not apply, and defendant’s sentence was illegal.
The sentence was vacated and the case was remanded for resentencing.
No. 16-2221. Lankford v. Wagner. 4/7/2017. D.N.M. Judge McHugh. Bankruptcy—Suit Against Trustee and Counsel—Court Permission is a Prerequisite.
Plaintiffs David and Lee Ann Lankford invested in a Ponzi scheme operated by Vaughan Company Realtors (VCR). After the Ponzi scheme collapsed, VCR...
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