from the United States District Court for the Southern
District of Alabama No. 1:15-cr-00158-CG-B-1.
ED CARNES, Chief Judge, ROSENBAUM, and HIGGINBOTHAM, [*] Circuit Judges.
CARNES, Chief Judge
an ACCA "violent felony" issue case. So here we go
down the rabbit hole again to a realm where we must close our
eyes as judges to what we know as men and women. It is a
pretend place in which a crime that the defendant committed
violently is transformed into a non-violent one because other
defendants at other times may have been convicted, or future
defendants could be convicted, of violating the same statute
without violence. Curiouser and curiouser it has all become,
as the holding we must enter in this case shows. Still we are
required to follow the rabbit.
FACTS AND PROCEDURAL HISTORY
Tyrone Davis was convicted of being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). Based
in part on his prior Alabama conviction for first degree
sexual abuse, the district court enhanced his sentence under
the Armed Career Criminal Act, 18 U.S.C. § 924(e). That
law establishes a mandatory minimum sentence of 15 years for
defendants convicted of violating § 922(g) who have at
least three prior convictions for violent felonies or serious
drug offenses. Davis contends that under Alabama law, first
degree sexual abuse does not qualify as a violent felony for
Davis was indicted in Alabama state court for first degree
rape. The indictment stated that "Davis . . ., a male,
did engage in sexual intercourse with [the victim], a female,
by forcible compulsion, in violation of [Alabama's first
degree rape statute]." He pleaded guilty to the lesser
included felony offense of first degree sexual abuse, in
violation of Alabama Code § 13A-6-66, instead of the
Davis was again convicted, this time for being a felon in
possession of a firearm. The presentence investigation report
determined that he was an armed career criminal based on
three earlier convictions: (1) a 1998 conviction for third
degree robbery, in violation of Alabama Code § 13A-8-43;
(2) a 2003 conviction for second degree assault, in violation
of Alabama Code § 13A-6-21; and (3) the 2012 conviction
for first degree sexual abuse, in violation of Alabama Code
§ 13A-6-66. Based in part on its determination that
Davis was an armed career criminal, the PSR calculated a
total offense level of 31 and a criminal history category of
VI, yielding an advisory guidelines range of 188 to 235
objected to using his sexual abuse conviction to enhance his
sentence under the ACCA, contending that based on the Supreme
Court's decision in Johnson v. United States,
559 U.S. 133, 130 S.Ct. 1265 (2010), it does not qualify as a
violent felony. Over his objection, the district court
concluded that the conviction does categorically qualify as a
violent felony and the court treated him as an armed career
criminal subject to the 15-year mandatory minimum sentence.
Davis was sentenced to 188 months, which was eight months
above the mandatory minimum and at the low end of his
advisory guidelines range.
the ACCA, a defendant who is convicted of being a felon in
possession of a firearm is subject to a 15-year mandatory
minimum sentence if he has three prior convictions "for
a violent felony or a serious drug offense." 18 U.S.C.
§ 924(e)(1). The ACCA defines a violent felony as any
crime punishable by a term of imprisonment exceeding one year
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
Id. § 924(e)(2)(B). This case involves only the
first part of that definition, § 924(e)(2)(B)(i), which
is known as the elements clause.
a particular conviction is a violent felony for purposes of
the ACCA is a question of law we consider de
novo." United States v. Gundy, 842 F.3d
1156, 1160 (11th Cir. 2016). The answer here depends on
whether one of the elements required by the statute of
conviction is "the use, attempted use, or threatened use
of physical force against the person of another." 18
U.S.C. § 924(e)(2)(B)(i). If so, the conviction
qualifies as a violent felony; if not, it doesn't.
determine whether the statute of conviction "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), we are confined to looking at the fact of
conviction and the elements required for conviction.
United States v. Hill, 799 F.3d 1318, 1322 (11th
Cir. 2015); United States v. Braun, 801 F.3d 1301,
1303 (11th Cir. 2015); United States v. Estrella,
758 F.3d 1239, 1249 n.4 (11th Cir. 2014); see also Taylor
v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143,
2159 (1990). "All that counts . . . are the elements of
the statute of conviction, " not the "specific
conduct of [a] particular offender." Mathis v.
United States, 579 U.S., 136 S.Ct. 2243, 2251-52 (2016)
(quotation marks omitted).
apply federal law in interpreting the ACCA, but state law in
determining the elements of state offenses, keeping in mind
that state law is what the state supreme court says that it
is. Johnson, 559 U.S. at 138, 130 S.Ct. at 1269
(explaining that when deciding whether a prior conviction is
a "violent felony" under the ACCA, "[w]e are .
. . bound by [state courts'] interpretation of state law,
including its determination of the elements of [the statute
of conviction]"); Braun, 801 F.3d at 1303
("We are bound by federal law when we interpret terms in
the ACCA, and we are bound by state law when we interpret the
elements of state-law crimes."); Estrella, 758
F.3d at 1249 n.4 (explaining that "the question we are
answering here is whether those elements as defined by state
law, including state court decisions, " qualify for a
federal sentence enhancement); United States v.
Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012)
("[W]e look to [state] case law to determine whether a
conviction under [a state statute] necessarily involves the
employment of 'physical force' as that term is
defined by federal law.").
Supreme Court has held that we must first employ what is
known as the "categorical approach." Hill,
799 F.3d at 1322. Under that approach, regardless of what the
true facts are, "we presume that the state conviction
rested upon the least of the acts criminalized by the statute
. . . ." Esquivel-Quintana v. Sessions, 581
U.S., 137 S.Ct. 1562, 1568 (2017) (alterations and quotation
marks omitted); see, e.g., Braun, 801 F.3d
at 1307. And then we must decide if the least of the acts
criminalized includes the use, attempted use, or threatened
use of physical force against another person, 18 U.S.C.
§ 924(e)(2)(B)(i). If not, that is the end of our
inquiry and the prior conviction does not count as a violent
felony under the elements clause.
inquiry is more complicated when the statute of conviction
makes multiple acts criminal, if there are multiple ways to
commit the crime that the statute defines. If that is so, as
it often is, we have to determine whether the statute is
indivisible, meaning that it includes multiple ways of
committing the same offense, or is instead divisible, meaning
that it lists multiple offenses. Mathis, 136 S.Ct.
at 2249. If the statute is indivisible, we use the
categorical approach. In that case a conviction under it
qualifies as a violent felony only if all of acts
criminalized in the statute involve the use of physical force
against the person of another.
the statute is divisible, we employ a modification of the
categorical approach, aptly known as the "modified
categorical approach, " to determine "which crime
in the statute formed the basis of the defendant's
conviction." Gundy, 842 F.3d at 1162. Under the
modified categorical approach, we can look at certain
judicial records, such as the indictment or the plea
colloquy, in order to determine which of the multiple crimes
listed in the statute the defendant was convicted of
committing. Shepard v. United States, 544 U.S. 13,
26, 125 S.Ct. 1254, 1263 (2005). If we can tell "which
statutory phrase the defendant was necessarily convicted
under, " United States v. Howard, 742 F.3d
1334, 1345 (11th Cir. 2014), we return to the categorical
approach and apply it to that statutory phrase. Doing so
requires us to decide whether the least of the acts
criminalized by that statutory phrase (instead of whether all
of the acts criminalized by all of the statutory phrases)
includes the use, attempted use, or threatened use of
physical force against another person, as required by the
ACCA's elements clause, 18 U.S.C. § 924(e)(2)(B)(i).
The Supreme Court has held that the "physical
force" that the elements clause requires is
"violent force - that is, force capable of
causing physical pain or injury to another person."
Johnson, 559 U.S. at 140, 130 S.Ct. at 1271.
question we face in this appeal is whether Alabama's
first degree sexual abuse statute, as interpreted by the
Alabama Supreme Court, necessarily includes as an element the
use, attempted use, or threatened use of violent physical
force. III. DIVISIBILITY OF FIRST DEGREE SEXUAL ABUSE
Code § 13A-6-66(a), which is the statute Davis was