United States v. Najee Oliver ( 2020 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15565
________________________
D.C. Docket No. 4:17-cr-00065-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NAJEE OLIVER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(April 8, 2020)
Before WILSON, JILL PRYOR, and TALLMAN,∗ Circuit Judges.
WILSON, Circuit Judge:
∗Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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We vacate our prior opinion in United States v. Oliver, 946 F.3d 1276 (11th
Cir. 2020), and substitute the following.
Najee Oliver pled guilty to possessing a firearm and ammunition as a
convicted felon under 18 U.S.C. §§ 922(g) and 924(a)(2). Based on his prior
convictions, including a prior Georgia conviction for making terroristic threats
under O.C.G.A. § 16-11-37(a) (2010), Oliver was sentenced under the Armed
Career Criminal Act (ACCA) to 180 months in prison. On appeal, Oliver argues
that his prior conviction for making terroristic threats is not a predicate violent
felony under the elements clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(i).
Because § 16-11-37(a) is indivisible and overbroad under Mathis v. United States,
136 S. Ct. 2243, 2249 (2016), a violation of that statute categorically does not
constitute a predicate offense under the elements clause of the ACCA. Therefore,
Oliver does not have three qualifying predicate offenses, as required to support the
application of the ACCA enhancement, and we remand to the district court for
resentencing.
I. Background
Late one evening, an officer from the Savannah-Chatham Metropolitan
Police Department observed Oliver pulling on car door handles. When the officer
approached, Oliver fled, and the officer followed. During the pursuit, Oliver threw
a firearm and a bag over a fence into a nearby construction site. Shortly after, the
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officer apprehended Oliver. Police then investigated the construction site and
recovered a loaded 9mm Glock pistol, which the police later determined was stolen
in a residential burglary. They also recovered the bag, which contained 45 grams
of marijuana.
A federal grand jury indicted Oliver on three felony counts: possession of a
firearm and ammunition by a convicted felon, in violation of §§ 922(g)(1) and
924(a)(2) (Count One); possession with intent to distribute a controlled substance,
in violation of 21 U.S.C. § 841(a)(1) (Count Two); and using and carrying a
firearm during and in relation to the drug trafficking offense charged in Count
Two, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three). Oliver pled guilty
to Count One pursuant to a written plea agreement, and the district court dismissed
Counts Two and Three.
A probation officer prepared a presentence investigation report (PSI), which
stated that Oliver qualified as an armed career criminal under the ACCA based on
two prior convictions for possession with intent to distribute and his prior Georgia
conviction for making terroristic threats. 1 Based on an offense level of 30 and a
criminal history category of VI, his initial guideline range was 168–210 months’
imprisonment. But because Oliver qualified as an armed career criminal, the
1
The ACCA mandates a 15-year minimum sentence for a defendant who commits an
offense in violation of § 922(g) and has three prior convictions for a violent felony or a serious
drug offense. 18 U.S.C. § 924(e)(1).
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ACCA mandated a 15-year minimum sentence. The guideline range was thus
180–210 months.
At sentencing, Oliver objected to his armed-career-criminal status, arguing
that his prior Georgia conviction for making terroristic threats did not qualify as a
violent felony for purposes of the ACCA enhancement. In the PSI, the probation
officer asserted that Oliver’s terroristic-threats conviction “clearly qualified as the
‘threatened use of physical force against the person of another’” within the
meaning of the ACCA. Further, the government argued that, based on United
States v. Greer (Greer I), 440 F.3d 1267, 1273–74 (11th Cir. 2006), and the
conduct underlying the offense, Oliver’s conviction for making terroristic threats
was a violent felony under the ACCA. The district court overruled Oliver’s
objection, applied the ACCA enhancement, and sentenced Oliver to 180 months’
imprisonment.
II. Discussion
Oliver challenges the district court’s determination that a conviction for
making terroristic threats qualifies as a violent felony under the ACCA’s elements
clause. He argues that Georgia’s terroristic-threats statute, § 16-11-37(a), can be
violated without the use, attempted use, or threatened use of physical force against
the person of another. Specifically, he argues that the statute can be violated by
threatening to commit “any crime of violence” against the person or property of
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another. Therefore, he asserts, Georgia’s statute is overly broad and encompasses
conduct that falls outside of the ACCA’s definition of a violent felony.
We review de novo a district court’s determination that a prior conviction
qualifies as a violent felony under the ACCA. See United States v. Howard, 742
F.3d 1334, 1341 (11th Cir. 2014).
A. The ACCA’s Elements Clause
The ACCA imposes a 15-year mandatory-minimum sentence on defendants
who violate § 922(g) and have three prior convictions for “a violent felony or a
serious drug offense, or both.” 18 U.S.C. § 924(e)(1). Under the elements clause,
the ACCA defines “violent felony” as any crime punishable by a term of
imprisonment exceeding one year that “has as an element the use, attempted use, or
threatened use of physical force against the person of another.” Id.
§ 924(e)(2)(B)(i).
Under this provision, “use” requires active employment of physical force.
Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). The Supreme Court has clarified that
“the phrase ‘physical force’ means violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133,
140 (2010).
In determining whether a state conviction qualifies as a violent felony under
the ACCA’s elements clause, we employ a “categorical approach,” examining only
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“the elements of the statute of conviction, not the specific conduct of a particular
offender.” United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017) (alteration
accepted) (internal quotation marks omitted). Because an examination of the state
conviction does not involve an analysis of its underlying facts, we must presume
that the conviction rested upon the “least of the acts criminalized” by the statute.
Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013) (alteration accepted) (internal
quotation mark omitted). If the “least of the acts criminalized” by the statute of
conviction has an element requiring “the use, attempted use, or threatened use of
physical force against the person of another,” then the offense categorically
qualifies as a violent felony under the ACCA’s elements clause. See Davis, 875
F.3d at 597. “If not, that is the end of our inquiry and the prior conviction does not
count as a violent felony under the elements clause.” Id.
In a narrow range of cases, however, the statute of conviction is “divisible,”
which makes comparison of the elements more difficult. A divisible statute “lists
multiple, alternative elements,” which “effectively creates several different
crimes.” Descamps v. United States, 570 U.S. 254, 264 (2013) (alteration
accepted) (internal quotation mark omitted). For example, a divisible burglary
statute might state that “burglary involves entry into a building or an automobile.”
Id. at 257. When faced with an offense from a divisible statute, we must employ
the “modified categorical approach” to determine “which crime in the statute
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formed the basis of the defendant’s conviction.” Davis, 875 F.3d at 597. Under
the modified categorical approach, a “court looks to a limited class of documents
. . . to determine what crime, with what elements, a defendant was convicted of.”
Mathis, 136 S. Ct. at 2249.
B. The Mathis Framework
Determining whether a statute is indivisible or divisible is not always a
simple task. Sometimes, a statute may appear to describe alternative “elements”—
that is, the “‘constituent parts’ of a crime’s legal definition,” which the prosecution
must prove to obtain a conviction—but it actually describes alternative “means.”
Cintron v. U.S. Att’y Gen., 882 F.3d 1380, 1384 (11th Cir. 2018). “Means,” by
contrast, are merely “various factual ways of committing some component of the
offense [and] a jury need not find (or a defendant admit) any particular item.”
Mathis, 136 S. Ct. at 2249. This determination makes a difference: If a statute
lists alternative means, rather than alternative elements, and any one of those
means “would not constitute [a violent felony], then the statute is indivisible and
categorically cannot constitute a [a violent felony under the ACCA].” See Cintron,
882 F.3d at 1384.
The Supreme Court in Mathis set forth a framework for determining whether
an alternatively phrased statute sets forth elements or means. The Supreme Court
instructed courts to consult “authoritative sources of state law,” including the
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language of the statute itself, pertinent state court decisions, and—if state law fails
to provide clear answers—record documents from the defendant’s own prior
conviction. Mathis, 136 S. Ct. at 2256. As to a statute’s text, the “statutory
alternatives [may] carry different punishments,” which would indicate that they
were elements. Id. On the other hand, the alternatives may be “drafted to offer
‘illustrative examples,’” in which case the alternatives would be different means of
committing the offense. Id. Finally, “a statute may itself identify which things
must be charged (and so are elements) and which need not be (and so are means).”
Id.
If the language of the statute does not resolve the question, “a state court
decision may.” Cintron, 882 F.3d at 1385 (citing Mathis, 136 S. Ct. at 2256). In
Mathis, the Court concluded that a state court decision holding that the
alternatively listed items were “alternative methods of committing one offense, so
that a jury need not agree” on a specific statutory alternative, “definitively
answer[ed] the question.” Mathis, 136 S. Ct. at 2256 (alteration accepted) (internal
quotation mark omitted). “When a ruling of that kind exists,” the Court stated, “a
sentencing judge need only follow what it says.” Id.
And if the text of the statute and state decisional law is unclear, “then courts
may look to other evidence of state law, including indictments or jury
instructions.” Cintron, 882 F.3d at 1385 (citing Mathis, 136 S. Ct. at 2256–57).
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For instance, if one of these documents includes all the statutory alternatives or
uses a “single umbrella term,” then this indicates that the statute is indivisible.
Mathis, 136 S. Ct. at 2257. On the other hand, “an indictment and jury instructions
could indicate, by referencing one alternative term to the exclusion of all others,
that the statute contains a list of elements, each one of which goes toward a
separate crime.” Id.
Mathis also stated that “[o]f course, such record materials will not in every
case speak plainly,” although such “indeterminancy should prove more the
exception than the rule.” Id. Importantly, this Court has held that if these sources
of state law “do not ‘speak plainly,’ [then we] must resolve the inquiry in favor of
indivisibility.” Cintron, 882 F.3d at 1385 (citing Mathis, 136 S. Ct. at 2257). With
this framework in mind, we examine these sources of state law to determine
whether Georgia’s terroristic-threats statute contains alternatively listed elements
or means and, therefore, whether it is divisible.
C. Applicability of Greer I
Before we analyze § 16-11-37(a) under Mathis, we address the
government’s argument that this case is controlled by Greer I. In that case, we
held that a determination of whether a Georgia terroristic-threats conviction
qualifies as a violent felony under the ACCA is a question for the district court
judge, not the jury. The government contends that we already decided in Greer I
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that a Georgia terroristic-threats conviction qualifies as an ACCA predicate
offense. But because that was not our holding in Greer I, we conclude that it does
not control this appeal.
In Greer I, we determined that the district court erred by refusing to impose
an enhanced sentence under the ACCA based on its determination that “if anything
beyond the conviction itself and the statutory elements had to be considered in
making the violent crime finding, the Constitution requires that the jury make it.”
440 F.3d at 1273. We held that determining the nature of a prior conviction for
ACCA purposes was a determination for a judge, not a jury, to make. Id. at 1275.
To be sure, Greer I stated that “there was no real dispute” in the case as to whether
Greer’s indictments “proved that [his] three prior convictions were crimes of
violence under the ACCA.” Id. at 1273. However, in reaching our conclusion that
this determination rests with the district court judge, we relied on the district
court’s characterization of the defendant’s terroristic-threats convictions as violent
felonies. See id. at 1273–74. And because the defendant in Greer I did not
challenge this determination, we had no occasion to consider the issue further.
Moreover, Greer I’s discussion about the substance of the ACCA determination
was tangential to the primary issue in the case—specifically, if a district court
judge, instead of a jury, can decide whether a defendant’s prior conviction is an
ACCA predicate offense. See id. at 1273; see also Aqua Log, Inc. v. Lost &
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Abandoned Pre-Cut Logs & Rafts of Logs, 709 F.3d 1055, 1060 n.4 (11th Cir.
2013) (“A holding is both the result of the case and those portions of the opinion
necessary to that result.” (internal quotation mark omitted)).
Thus, we did not decide in Greer I the divisibility of Georgia’s terroristic-
threats statute. Further, Greer I did not explicitly address whether a Georgia
terroristic-threats conviction qualifies as a violent felony under the ACCA’s
enumerated-offense clause, elements clause, or residual clause.2 Therefore, we
find that Greer I does not control here.3
2
Greer I was decided prior to Johnson v. United States, 135 S. Ct. 2551 (2015). In
Johnson, the Supreme Court struck down as unconstitutionally vague the ACCA’s “residual
clause,” which defined a violent felony, in part, as any crime punishable by a term of
imprisonment exceeding one year that “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” Id. at 2555–58; 18 U.S.C. § 924(e)(2)(B)(ii).
Several other Supreme Court cases with precedential value in the ACCA context were also
decided after Greer I, including Descamps and Mathis.
3
The defendant in Greer I recently appealed the district court’s denial of his 28 U.S.C.
§ 2255 motion to correct his sentence. See Greer v. United States (Greer II), 749 F. App’x 887
(11th Cir. 2018) (unpublished). He argued that his sentence under the ACCA was invalid
because his prior Georgia terroristic-threats convictions did not qualify as violent felonies. Id. at
888. Because the parties agreed that the Georgia statute was divisible, we assumed the statute
was divisible, but did not decide the question. Id. at 892. We concluded that only threatened
violent force is criminalized under the “crime of violence” prong of Georgia’s terroristic-threats
statute. Id. at 894–95. The defendant’s three prior terroristic-threats convictions therefore
qualified as violent felonies under the ACCA’s elements clause. Id. at 895. Like Greer I, we
decline to give Greer II controlling weight. Greer II is an unpublished decision and is not
binding on our merits panel. Moreover, Greer II leaves open the question of whether Georgia’s
terroristic-threats statute is divisible, which is an essential determination in this case.
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D. Divisibility of Georgia’s Terroristic-Threats Statute
Returning to the framework set forth in Mathis, we now consider whether
Georgia’s terroristic-threats statute, § 16-11-37(a), is divisible. At the time of
Oliver’s conviction, Georgia’s terroristic-threat statute provided:
A person commits the offense of a terroristic threat when
he or she threatens to commit any crime of violence, to
release any hazardous substance, as such term is defined
in [O.C.G.A. §] 12-8-92, or to burn or damage property
with the purpose of terrorizing another or of causing the
evacuation of a building, place of assembly, or facility of
public transportation or otherwise causing serious public
inconvenience or in reckless disregard of the risk of
causing such terror or inconvenience. No person shall be
convicted under this subsection on the uncorroborated
testimony of the party to whom the threat is
communicated.
O.C.G.A. § 16-11-37(a) (2010). Thus, the statute lists three types of threats that
qualify as a violation of the statute: (1) threats “to commit any crime of violence,”
(2) threats “to release any hazardous substance,” and (3) threats “to burn or
damage property.” Id.
It is clear from the face of the statute that not all threats criminalized by the
statute require the “threatened use of physical force against the person of another,”
as is required to satisfy the ACCA’s elements clause. See 18 U.S.C.
§ 924(e)(2)(B)(i). Specifically, the statutory phrase criminalizing a threat “to burn
or damage property” lacks any requirement of physical force against a person.
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Thus, if the alternatively listed threats in § 16-11-37(a) are means, and therefore
the statute is indivisible, then a conviction under the statute cannot serve as a
predicate violent felony under the ACCA. See Cintron, 882 F.3d at 1384.
The government therefore urges us to conclude that the Georgia statute is
divisible, requiring application of the modified categorical approach. The
government contends that the statute contains divisible threat elements, and that the
type of threat underlying Oliver’s conviction—a threat to “commit any crime of
violence”—always contains an element of threatened violent force against another.
However, because we conclude that the statute is indivisible, we disagree.
As explained above, Mathis instructs us to first look to authoritative state
law—the statute itself and state decisional law—to determine whether a statute
refers to elements or means. Here, we cannot resolve this question based solely on
the text of the statute. First, § 16-11-37(a) lacks the clarifying traits described in
Mathis as dispositive. The statute does not assign different punishments to the
different types of threats, it does not offer illustrative examples of any of the
threats, and it does not “identify which things must be charged (and so are
elements) and which need not be (and so are means).” See Mathis, 136 S. Ct. at
2256; O.C.G.A. § 16-11-37(a). Further, the statute facially suggests indivisibility:
it contains “language indicating that the . . . methods of commission are to be
treated as a single offense,” a fact that we have explained weighs in favor of
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indivisibility. Cintron, 882 F.3d at 1387; see O.C.G.A. § 16-11-37(a) (“A person
commits the offense of a terroristic threat . . . .” (emphasis added)). 4 Accordingly,
the language of the statute does not “speak plainly” to whether the statute’s
alternatives are elements or means, so we proceed to consider state case law. See
Mathis, 136 S. Ct. at 2256–57; Cintron, 882 F.3d at 1385.
Similarly, Georgia’s state court decisions are not dispositive. In Mathis, the
Supreme Court explained that a state court decision sufficiently resolved the
divisibility inquiry when it (1) described statutory alternatives as “alternative
method[s] of committing the single crime of burglary” and (2) clarified that a jury
need not unanimously agree on the particular method the defendant used. Mathis,
136 S. Ct. at 2250, 2256 (alteration adopted) (internal quotation mark omitted).
4
The dissent argues that the structure of the terroristic-threats statute indicates
divisibility. Dissenting Op. at 25. Respectfully, we disagree. The dissent correctly notes that
we determined in Davis that a sexual-abuse statute, which contained an exhaustive list, rather
than illustrative examples, and referred to “the crime of sexual abuse,” was nonetheless divisible.
Davis, 875 F.3d at 598 (emphasis added). However, the format of that statute more clearly
indicated divisibility, see Ala. Code § 13A-6-66(a), and, moreover, our opinion offered little
reasoning or guidance as we merely stated “[o]n its face § 13A-6-66(a) lists two separate crimes:
sexual abuse by forcible compulsion and sexual abuse of a person incapable of consent by reason
of being physically helpless or mentally incapacitated.” Davis, 875 F.3d at 598.
Furthermore, we have held that a statute that punishes an individual who “knowingly
sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or
constructive possession of” certain narcotics is indivisible because these various acts are
“denominated as a single offense—‘trafficking in illegal drugs.’” Cintron, 882 F.3d at 1385–86.
We concluded that this “suggest[ed] that the six listed alternatives were all means of
accomplishing ‘trafficking,’ rather than separate elements creating distinct offenses.” Id. at
1386. The same reasoning is persuasive in interpreting § 16-11-37(a).
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Here, Georgia case law is inconclusive as to whether the statute describes
elements or means. To be sure, Georgia appellate decisions appear to suggest that
§ 16-11-37(a) describes a single offense that may be committed in several ways.
See Koldewey v. State, 714 S.E.2d 371, 373 (Ga. Ct. App. 2011) (“To prove the
crime of terroristic threats as alleged in Counts 1 through 4, the State’s burden was
to show that Koldewey ‘threaten[ed] to commit any crime of violence . . . or to
burn or damage property . . . .” (quoting O.C.G.A. § 16-11-37(a))); Armour v.
State, 594 S.E.2d 765, 767 (Ga. Ct. App. 2004) (“A person commits the crime of
making a terroristic threat when he threatens to commit any crime of violence or to
burn or damage property . . . .”). By referring to making terroristic threats as a
single offense that could be committed in more than one way, Georgia case law
suggests that the listed types of threats are alternative “means of satisfying the
actus reus element of [the] offense.” Schad v. Arizona, 501 U.S. 624, 632 (1991)
(plurality opinion); see Robert E. Cleary Jr., Kurtz Criminal Offenses and Defenses
in Georgia 1751 (2011 ed.) (“The actus reus of the crime of terroristic threats is
threatening to commit any crime of violence, to release any hazardous substance,
or to burn or damage property.”). However, no Georgia appellate decision has
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“definitively answer[ed] the question”—“elements or means?”—with the certainty
described in Mathis. See 136 S. Ct. at 2256. 5
5
The dissent makes three arguments why Georgia case law conclusively shows that the
statute is divisible. Respectfully, we disagree with each.
First, the dissent says that relevant cases show that Georgia prosecutors routinely charge
defendants with separate crimes under the terroristic-threats statute. Dissenting Op. at 27–28.
The dissent states that the indictments in these cases reference one term—usually, threatening to
commit a crime of violence—to the exclusion of all other terms, thus suggesting that the statute
contains elements, not means. This analysis misapplies the Mathis framework. Mathis tells us to
look to state case law in the elements-or-means inquiry to see if a state court decision
“definitively answers the question,” such as by clearly holding that a statute contains “alternative
methods of committing one offense.” Mathis, 136 S. Ct. at 2256 (alteration accepted) (internal
quotation mark omitted). Mathis also tells us we may also look to the record of conviction,
including the indictment, in the case at hand. Id. at 2256–57. But Mathis does not direct us to
consider the indictments in other cases, when those cases have not considered what a prosecutor
must charge in the indictment, or what the jury must find. See id.
It is worth mentioning that in United States v. Gundy, where we held that Georgia’s
burglary statute listed separate elements, not means, we noted that, “[i]ndeed, in every case cited
by Gundy and the government, the indictment specified the type of place or premises burgled.”
842 F.3d 1156, 1167 (11th Cir. 2016). However, our analysis of state case law rested on the
definitive rulings in state cases as to what must be charged and, more significantly, proved to
obtain a conviction for Georgia burglary, in accordance with the Mathis framework. See id. at
1167 (citing cases). We did not rely on the indictments in other cases cited by Gundy and the
government to decide that the statute was divisible.
Second, the dissent says that Georgia courts have long acknowledged that the various
actus rei and mentes reae under the terroristic-threats statute are in fact elements. Dissenting Op.
at 29. The cases the dissent cites all explain that there are two essential elements of the offense.
We agree. This fact, though, merely begs the question whether the actus reus alternatives are
means or alternative elements. The cases the dissent cites do not answer this question. The
dissent argues that Georgia’s cases “stand in stark contrast to the Iowa cases that Mathis
considered, which consistently described Iowa’s burglary law as one offering ‘alternative
method[s]’ of committing a single offense.” Id. at 30 (quoting Mathis, 136 S. Ct. at 2256). True,
but this is because the case law from Iowa squarely addressed the issue, which the Georgia cases
do not.
Third, the dissent criticizes our reliance on Koldewey and Armour. The dissent says that
these cases “colloquially” refer to a singular crime of terroristic threats. Id. at 31. We do not
find insignificant a court’s reference to a singular “crime” when the statute it is analyzing
expressly refers to a singular “offense,” as is the case here. See O.C.G.A. § 16-11-37(a). Our
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Because these sources of state law do not clearly resolve whether the types
of threats are means or elements, we may “peek” at the record of Oliver’s prior
conviction, including the “indictment and correlative jury instructions.” Id.
at 2256–57. The pattern jury instruction for § 16-11-37(a) reads:
A person commits terroristic threats when that person
threatens to (commit any crime of violence) (release any
hazardous substance) (burn/damage property) with the
purpose of
(a) (terrorizing another) (in reckless disregard of the risk
of causing terror), or
(b) (causing evacuation of a building, place of assembly,
facility of public transportation), or
(c) (causing serious public inconvenience) (in reckless
disregard of the risk of causing serious public
inconvenience)[.]
Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions,
Vol. II: Criminal Cases, § 2.24.10 (4th ed. 2018). 6 Given the instruction’s format,
dissenting colleague also argues that these cases support his view of the statute, not ours, because
those cases involved separate counts of terroristic threats. We disagree. As a technical matter,
Armour involved only one count of terroristic threats. The court mentioned in passing that “the
evidence would have supported a terroristic threat charge” based on the defendant’s threat to beat
up a person, “but the indictment charged Armour only” with a count based on his threat to burn
the person’s residence. Armour, 594 S.E.2d at 767 & n.4. In any event, nothing prevents a
prosecutor from charging multiple counts of terroristic threats for different threats. That happens
all the time. And it is what happened in these cases.
6
The version of this jury instruction at the time of Oliver’s conviction was the same,
except that it omitted, apparently inadvertently, “release any hazardous substance,” although that
alternative was part of § 16-11-37(a) at the time.
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we cannot conclusively say that it either lists a single statutory alternative to the
exclusion of all others or lists every statutory alternative. Rather, the instruction
appears to be a template for an instructing court to tailor to the facts of a case. The
way in which the three threats are alternatively listed may at first suggest that they
are separate elements, but then the same interpretation does not fit for the
alternatively listed mens rea requirements that follow in subsections (a) through
(c). Indeed, it does not make sense to interpret each alternatively listed mens rea
requirement as a distinct element.
We could also look to Oliver’s indictment, but, as the government concedes,
that indictment is not part of the record. The government points to Oliver’s PSI,
which refers to the indictment in Oliver’s terroristic-threats case and states that it
charged Oliver solely with threatening a crime of violence. But such reference to
an indictment that is not part of the record does not squarely fit within the Mathis
framework. See Mathis, 136 S. Ct. 2243, 2256–57. 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. See id. at 2257 (“[A]n indictment and
jury instructions could indicate, by referencing one alternative term to the
exclusion of all others, that the statute contains a list of elements . . . .” (emphasis
added)). Regardless, without more than this reference to the indictment, we
cannot conclude that Oliver’s record of conviction clearly indicates divisibility.
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Contra United States v. Gillis, 938 F.3d 1181, 1205 (11th Cir. 2019) (per curiam)
(“Because all of the information before us points in the same direction, we have no
trouble concluding that § 1201(a) is indivisible and that the categorical, rather than
the modified categorical, approach applies.”).
Accordingly, because the statute’s text, state case law, and the record of
conviction do not “speak plainly” as to whether the statute is divisible, we “must
resolve the inquiry in favor of indivisibility.” Cintron, 882 F.3d at 1385. And
because the statute is indivisible and it is overbroad, we conclude that it
categorically does not qualify as an ACCA predicate offense. As such, Oliver does
not have three qualifying predicate offenses under the ACCA. Therefore, we
reverse the district court’s application of the ACCA enhancement and remand to
the district court to resentence Oliver without the enhancement.
REVERSED AND REMANDED.
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TALLMAN, Circuit Judge, dissenting.
Najee Oliver was convicted of being a felon in possession of a firearm.
Having previously been convicted of two serious drug offenses and of making
“terroristic threats” under Georgia state law—for threatening to shoot his then-
girlfriend and making good on the threat by showing up at her house and firing a
round—Oliver’s sentence was properly enhanced under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). The majority today reverses
that enhancement. Because I would find that Oliver’s terroristic-threats conviction
qualifies as a violent felony under the ACCA, I respectfully dissent.
I
The majority ably summarizes both our ACCA jurisprudence and the facts
of this case. See Maj. Op. at 2–7. I agree that we are bound to follow the so-called
categorical approach to determine whether state offenses qualify as violent felonies
under the ACCA—that is, regardless of the actual facts of the case, we must decide
if “the least of the acts criminalized [by the statute of conviction] includes the use,
attempted use, or threatened use of physical force against another person.” United
States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017). I agree that the Georgia
terroristic-threats statute, O.C.G.A. § 16-11-37(a) 1 criminalizes some conduct that
1
While Oliver was convicted under an earlier version of the statute, the former and
revised versions are identical in all material respects.
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is unquestionably outside the ACCA’s ambit, such as its prohibition on “burn[ing]
or damag[ing] property.” The question before us is (1) whether the statute is
divisible, and, if so, (2) whether the crime for which Oliver was convicted is
categorically a violent felony under the ACCA. 2 Because Oliver’s case is
emblematic of the type of crime for which Congress sought to enhance a
recidivist’s punishment, I would answer “yes” to both questions and affirm the
district court.
II
At the time Oliver was convicted, § 16-11-37(a) of the Georgia Code read in
relevant part:
A person commits the offense of a terroristic threat when
he or she threatens to commit any crime of violence, to
release any hazardous substance . . . or to burn or damage
property with the purpose of terrorizing another or of
causing the evacuation of a building, place of assembly, or
facility of public transportation or otherwise causing
serious public inconvenience or in reckless disregard of
the risk of causing such terror or inconvenience.
O.C.G.A. § 16-11-37(a) (2010). Because none of the crimes included in this
statute are enumerated in 18 U.S.C. § 924(e)(2)(B)(ii) (the “enumerated offenses
clause”), the conviction only qualifies as a predicate offense under the ACCA if it
2
I agree with the majority that United States v. Greer, 440 F.3d 1267 (11th Cir. 2006),
does not control our decision here.
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“has as an element the use, attempted use, or threatened use of physical force
against the person of another,” id. at § 924(e)(2)(B)(i) (the “elements clause”).
Applying the categorical approach to the statute as a whole, it is plain that a
person could be convicted for conduct other than a violent felony. For example, a
threat to burn an office building does not qualify as a violent felony under the
elements clause because it does not entail physical force against the person of
another. But, as the Supreme Court noted in Mathis v. United States, 136 S. Ct.
2243, 2249 (2016), “a single statute may list elements in the alternative, and
thereby define multiple crimes.” In such situations, we must determine if a
statute’s distinct parts are “elements”—and that the statute “thereby define[s]
multiple crimes”—or “means”—in which case the statute contains “a diverse
means of satisfying a single element of a single crime.” Id. Determining a
statute’s divisibility entails, as the majority aptly outlines, “consult[ing]
‘authoritative sources of state law,’ including the language of the statute itself,
pertinent state court decisions, and—if state law fails to provide clear answers—
record documents from the defendant’s own prior conviction.” Maj. Op. at 7–8
(quoting Mathis, 136 S. Ct. at 2256).
Only after we have determined that a statute is divisible may we employ the
“modified categorical approach,” looking “to a limited class of documents (for
example, the indictment, jury instructions, or plea agreement and colloquy) to
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determine what crime, with what elements, a defendant was convicted of.” Mathis,
136 S. Ct. at 2249. Finally, we must determine whether the crime for which the
defendant was convicted is categorically a violent felony. See Davis, 875 F.3d at
600.
A
The three factors we examine in assessing divisibility—the statute, the state
case law, and the record documents of the defendant’s prior conviction—together
paint a picture about whether a statute is divisible. They serve as guideposts to
help us distinguish means from elements, which are “[a]t a trial, what the jury must
find beyond a reasonable doubt to convict the defendant, . . . and at a plea hearing,
they are what the defendant necessarily admits when he pleads guilty.” Mathis,
136 S. Ct. at 2248.
The language of the Georgia statute in question, Georgia state-court
decisions, and Oliver’s conviction record collectively demonstrate that § 16-11-
37(a) is divisible. The statute sets forth an exhaustive list that bears no
resemblance to Mathis’s indivisible statute. The Georgia courts call § 16-11-
37(a)’s parts elements, and they make clear that prosecutors must prove the
particular threat alleged. And the indictment to which Oliver pleaded guilty
charged him with threatening a crime of personal violence only—not for a
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generalized “terroristic threat” that could encompass any of the three kinds of
threats that compose the statute.
B
In Mathis, the Supreme Court observed that in some cases “the statute on its
face may resolve the [divisibility] issue.” 136 S. Ct. at 2256. Mathis provides a
few helpful hints to divine whether a statute’s parts are elements or means. First, it
tells us that “[i]f statutory alternatives carry different punishments, then . . . they
must be elements.” Id. Second, “if a statutory list is drafted to offer ‘illustrative
examples,’ then it includes only a crime’s means of commission.” Id.
Section 16-11-37(a) is divided into three parts. It criminalizes three separate
acts—threatening to (1) commit any crime of violence; (2) release any hazardous
substance; or (3) burn or damage property—committed with four separate mentes
reae: (1) terrorizing another; (2) causing the evacuation of a building, place of
assembly, or facility of public transportation; (3) otherwise causing serious public
inconvenience; or (4) in reckless disregard of the risk of causing such terror or
inconvenience. See O.C.G.A. § 16-11-37(a). Admittedly, the statute carries no
separate punishments, so that version of the means-or-elements test might initially
suggest indivisibility.
But neither does the statute offer illustrative examples. It is therefore not
like the type of statute Mathis told us indicates “means” rather than “elements.”
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United States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014), provides a good
example of an indivisible statute. It criminalizes unlawful entry into
“structures”—where that term is defined by a long list beginning with the phrase
“and such term includes”—which, we held, denoted means, not elements. By
contrast, the statute in Davis, which criminalizes two types of sexual assault—one
violent; one of an incapacitated or disabled person—lists elements. 875 F.3d at
598. Our statute’s exhaustive list looks much more like the statute in Davis than
the one in Howard. Rather than providing a laundry list of various ways in which
a person may commit a single crime, like the statute in Howard, § 16-11-37(a)
provides three distinct ways in which a defendant may violate its terms. Its
structure indicates that it creates three separate crimes with different elements—not
a single crime with sundry means of commission.
While I think the structure of the statute is an indication of divisibility, the
majority would have the reader disregard the statutory structure and instead rely on
the portion of § 16-11-37(a) referring to “the offense”—in the singular—of a
terroristic threat. See Maj. Op. at 13–14. The majority leans on Cintron v. U.S.
Attorney Gen., 882 F.3d 1380, 1387 (11th Cir. 2018), to support its claim that a
statute’s referring to “the offense” is an indication that the statute’s parts are
means, not elements. See Maj. Op. at 13–14. And the majority dismisses Davis’s
contrary holding out of hand—in a footnote—because “our opinion [in Davis]
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offered little reasoning or guidance.” Id. at 14 n.4. I would not so lightly discard
one of our precedential opinions. True: it is difficult to reconcile Davis and
Cintron with regard to how they grapple with their respective statutes’
nomenclature for the crimes they proscribe. But Davis remains good law, and the
majority is thus wrong to count the statute’s terminology as among the factors
“suggest[ing] indivisibility.” 3 Maj. Op. at 13.
Section 16-11-37(a)’s structure—like the Davis statute’s—indicates that it is
divisible. Its reference to “the crime” of terroristic threats—like Davis’s, to the
crime of sexual assault—does nothing to call that indication into question.
C
While I think § 16-11-37(a)’s structure favors finding it divisible, I
nonetheless grant that the statute’s text leaves its divisibility open for debate, so I
turn to the next factor Mathis tells us to examine: state-court decisions interpreting
the statute. Precedential state-court decisions serve as strong evidence that the
statute’s actus rei—threatening to commit a crime of violence, threatening to
release any hazardous substance, or threatening to burn or damage property—are
“elements” one or more of which “the jury must find beyond a reasonable doubt”
3
It may very well be that the statute in Cintron indicated indivisibility by referring to its
laundry list of six kinds of drug crimes as “the offense.” See 882 F.3d at 1385–86. But such
terminology does not always and necessarily so indicate, as Davis makes clear. And § 16-11-
37(a)’s three nonoverlapping parts bear much greater resemblance to the two-part, divisible
sexual-assault statute in Davis, see 875 F.3d at 598, than to Cintron’s six-part litany, see 882
F.3d at 1385.
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in order to convict, Mathis, 136 S. Ct. at 2248, depending on the crime charged, as
opposed to “alternative methods” of committing one crime on which “a jury need
not agree,” id. at 2256.
An examination of the relevant cases reveals that Georgia prosecutors
routinely charge defendants with separate crimes—requiring proof on different
combinations of elements—under the terroristic-threats statute. The most
commonly prosecuted crime appears to be threatening to commit a crime of
violence with the purpose of terrorizing another. The indictments in all of the
terroristic-threats cases “referenc[e] one alternative term” (threatening to commit a
crime of violence) “to the exclusion of all others” (threatening to release any
hazardous substance, or to burn or damage property), which tends to show the
terroristic-threats statute “contains a list of elements, each one of which goes
toward a separate crime.” Mathis, 136 S. Ct. at 2257 (emphases added).
Indictments so framed pervade Georgia case law. See, e.g., Bryant v. State,
832 S.E.2d 826, 830 (Ga. 2019) (indictment alleged defendant “threaten[ed] to
commit Murder, a crime of violence, with the purpose of terrorizing” the victim);
Poole v. State, 326 Ga. App. 243, 247, 756 S.E.2d 322, 328 (2014) (indictment
charged three terroristic-threats counts, each of which “allege[d] that Poole, ‘with
the intent to terrorize,’ threatened to commit a ‘crime of violence’ against a
specific victim on a specific date or limited range of dates”); Smith v. State, 319
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Ga. App. 640, 641, 738 S.E.2d 95, 96 (2013) (indictment “accused Smith of
committing terroristic threats specifically by threatening to commit aggravated
assault with the purpose of terrorizing the salon’s owner and one of the
customers”); State v. Horsley, 310 Ga. App. 324, 325, 714 S.E.2d 1, 2 (2011)
(indictment charged defendants with “threaten[ing] to commit a crime of violence,
to wit: murder with the purpose of terrorizing Sir Elton Hercules John”); Martin v.
State, 303 Ga. App. 117, 119, 692 S.E.2d 741, 743 (2010) (indictment charged
defendant with threatening to commit “a crime of violence, to wit: murder upon the
person of Barbara Hightower”); Martin v. State, 219 Ga. App. 277, 283, 464
S.E.2d 872, 878 (1995) (indictment charged defendant with “threaten[ing] to
commit a crime of violence with the purpose of terrorizing another”).
The indictments set forth above list only those elements relevant to the
specific crime charged—one regarding the defendant’s actus reus (threatening to
commit a crime of violence), the other regarding his or her mens rea (with the
purpose of terrorizing another). To convict a defendant, the jury must decide that
the state has proven both elements beyond a reasonable doubt. See, e.g., Martin,
303 Ga. App. at 119, 692 S.E.2d at 743 (finding the state presented “ample
evidence to allow the jury to find the[] elements [of threatening a crime of
violence, with the purpose of terrorizing another] beyond a reasonable doubt”).
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The same principles apply in other cases for different crimes charged under
the terroristic-threats statute. For instance, an indictment alleging a defendant
committed the crime of threatening to burn down a victim’s house will be charged
only under the burn-or-damage element of § 16-11-37(a), to the exclusion of the
other two actus reus elements. See Armour v. State, 265 Ga. App. 569, 571 n.4,
594 S.E.2d 765, 767 n.4 (2004). The jury in a burn-or-damage case is tasked with
considering only whether the government has carried its burden in proving the
defendant threatened to burn or damage property with a criminal purpose. See
Robinson v. State, 288 Ga. App. 219, 221, 653 S.E.2d 810, 813 (2007) (finding
evidence sufficient to support defendant’s conviction for threatening to burn down
a restaurant); see also Masson v. Slaton, 320 F. Supp. 669, 672–73 (N.D. Ga.
1970) (explaining that, to charge a defendant under the terroristic-threats statute,
“the court need only consider that portion of the statute under which the plaintiff
was indicted”—the part criminalizing the threat “to burn or damage property, with
the purpose of terrorizing another”).
Just as Georgia prosecutors charge defendants with separate crimes under
the statute’s elements, and jurors decide whether the prosecutors proved those
elements, Georgia courts have long acknowledged the actus rei and mentes reae
are “elements” giving rise to separate crimes. See Bryant, 832 S.E.2d at 830–31
(explaining that, under § 16-11-37(a), “the State must establish two elements to
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sustain a conviction for making terroristic threats: (a) that the defendant threatened
to commit a crime of violence against the victim, and (b) that the defendant did so
with the purpose of terrorizing the victim” (internal quotation marks and citation
omitted) (emphasis added)); Clement v. State, 309 Ga. App. 376, 379, 710 S.E.2d
590, 592 (2011) (same); Poole, 326 Ga. App. at 249, 756 S.E.2d at 329 (“[T]he
essential elements of the crime of terroristic threats are a threat to commit a crime
of violence with the purpose of terrorizing another.” (emphasis added)); Smith, 319
Ga. App. at 641, 738 S.E.2d at 96 (“[T]he State was required to prove two essential
elements: (1) that Smith threatened the victims with aggravated assault and (2) that
he acted with the purpose of terrorizing them.” (emphasis added)); Martin, 303 Ga.
App. at 119, 692 S.E.2d at 743 (“[T]he State was required to prove two elements:
(1) that Martin threatened to murder Barbara and (2) he did so with the purpose of
terrorizing her.” (emphasis added)); Martin, 219 Ga. App. at 283, 464 S.E.2d at
878 (“The essential elements of terroristic threats and acts are: (1) a threat to
commit any crime of violence . . . (2) . . . with the purpose of terrorizing another.”
(emphasis added) (omissions in original)).
These Georgia decisions stand in stark contrast to the Iowa cases that Mathis
considered, which consistently described Iowa’s burglary law as one offering
“alternative method[s]” of committing a single offense. 136 S. Ct. at 2256 (finding
that an Iowa state-court decision describing Iowa’s burglary law component parts
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as “alternative method[s]” thereby “definitively” established that the law
comprised means, not elements).
The majority offers two state-court decisions to cast doubt on whether the
balance of Georgia cases accurately treats the terroristic-threats statute’s
component parts as “elements.” See Maj. Op. at 15. In both decisions cited by the
majority, the courts colloquially refer to “the crime,” in the singular, “of terroristic
threats.” They say things like, “[t]o prove the crime of terroristic threats . . . the
State’s burden was to show that Koldewey ‘threaten[ed] to commit any crime of
violence . . . or to burn or damage property[.]’” Koldewey v. State, 310 Ga. App.
788, 789, 714 S.E.2d 371, 373 (2011). See also Armour, 265 Ga. App. at 571, 594
S.E.2d at 767 (“A person commits the crime of making a terroristic threat when he
threatens to commit any crime of violence or to burn or damage property[.]”). I
disagree that the majority’s interpretation of these quotations is the only reasonable
one, but taken out of context, they might suggest that threatening to commit a
crime of violence and threatening to burn or damage property are alternative means
of committing the single crime of terroristic threats. But the majority neglects to
mention that the indictments underlying both cases charge the defendants with
separate crimes, all under the terroristic-threats statute, and as separate counts.
In Koldewey, for instance, the prosecution charged the defendant in a six-
count indictment that included two counts for threatening to kill victim A.W. on
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two separate occasions, another count for threatening to kill victim C.W., and an
additional count for threatening to set fire to a home. 310 Ga. App. at 788–89, 714
S.E.2d at 372–73. The Koldewey indictment presented three charges for two
separate crimes, all under the terroristic-threats statute: (1) two counts of
threatening to commit a crime of violence, and (2) one count of threatening to burn
or damage property. The facts of Koldewey make clear that each count contained
different elements the prosecution had to prove to establish the defendant
committed the separate crimes which the statute proscribes.
The Armour defendant was charged solely with the single crime of
threatening to burn down a house. 265 Ga. App. at 571 n.4, 594 S.E.2d at 767 n.4.
The court proceeded to analyze only that element of the terroristic-threats statute,
to the exclusion of all others, while acknowledging the defendant’s other conduct
might also have supported a separate charge under a separate statutory element (a
threat to commit a crime of violence), though the prosecution did not charge him
with the other offense. Id.
Significantly, neither the prosecution in Koldewey nor in Armour (nor in any
other Georgia case that I could find) sought to charge the defendants with a
generalized “terroristic-threats crime.” Cf. Mathis, 136 S. Ct. at 2257 (explaining
that where one count of an indictment reiterates all the terms of a state’s law,
“[t]hat is as clear an indication as any that each alternative is only a possible means
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of commission, not an element that the prosecutor must prove to a jury beyond a
reasonable doubt”). The indictments in these Georgia cases instead accused the
defendants of specific crimes, each requiring proof on unique elements, which the
state was obligated to prove in order to convict. Georgia precedent is clear and
directly answers the question, posed by the majority, “whether the actus reus [and
mens rea] alternatives” of § 16-11-37(a) “are means or alternative elements,” Maj.
Op. at 16 n.5: threatening to commit a crime of violence against another,
threatening to release a hazardous substance, and threatening to burn or damage
property are elements, not means. The terroristic-threats statute is divisible.
Facing this overwhelming body of Georgia law, and with but two cases that
only superficially support its argument, the majority throws up its hands and
declares the Georgia case law useless as a guide to § 16-11-37(a)’s divisibility. It
so argues based on an unsupported and internally inconsistent reading of Mathis.
The majority insists that state-court decisions make clear a statute is divisible only
if they explicitly state that a statute’s component parts are “means” or “elements.”
Maj. Op. at 16 n.5. But Mathis does not require state courts to utter any talismanic
words before we can find divisibility in the ACCA context. The Supreme Court in
Mathis, apparently cognizant that such state-court incantations would be rare,
permitted lower courts to rely on a suite of factors to be examined in employing the
modified categorical approach, which are “indication[s]” that bear on the ultimate
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determination of divisibility, whether or not they definitively dispose of it. 136 S.
Ct. at 2256–57 (emphasis added). One “indicator,” which we have expressly relied
on in concluding a Georgia statute was divisible, is the form of an indictment.
Indeed, where a Georgia prosecutor must select and identify the component parts
of a statute to charge in an indictment, such “is the hallmark of a divisible statute.”
United States v. Gundy, 842 F.3d 1156, 1167 (11th Cir. 2016) (concluding burglary
statute was divisible). 4
Only a few pages after insisting that Mathis gives rise to a rigid analytical
framework—one that would require courts to cast a blind eye to clear trends in
state case law directly bearing on the divisibility question—the majority changes
its tune, insisting that a defendant’s previous indictment merely “could indicate”
divisibility but, inexplicably, ultimately declining to follow Mathis on that issue.
The majority cannot have it both ways. The Mathis framework either is a strict test
to be mechanically applied (as the majority disingenuously implies with regard to
4
I do not understand why the majority relies on Gundy to establish that federal courts
must rely on “definitive rulings in state cases as to what must be charged and proved to obtain a
conviction.” Maj. Op. at 16 n.5. The majority claims that in Gundy we relied only on definitive
state-court rulings, and that we specifically did not “rely on the indictments in other cases cited
by Gundy and the government to decide that the statute was divisible.” Id. But the plain text of
Gundy directly contradicts the majority’s argument. Gundy expressly acknowledged that, “in
every case cited by Gundy and the government, the indictment specified the type of place or
premises burgled,” thus supporting divisibility. 842 F.3d at 1167 (emphasis added). We then
concluded that, based on the indictments underlying the parties’ cases, combined with definitive
state-court rulings, the Georgia statute at issue was divisible. Id. at 1168 (“For all of the above
reasons, we conclude that the alternative locational elements in the Georgia statute are
divisible.”) (emphasis added). Gundy simply does not support the majority’s position here.
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state-court decisions), or it is a useful roadmap to guide courts in undertaking the
complicated divisibility question (as the majority later concedes). The Mathis
framework, as correctly applied here, yields but one conclusion: Georgia case
law—replete with references to “elements” and examples of different types of
threats charged as alternative counts—provides a strong indication that § 16-11-
37(a)’s parts are elements, and that the statute is therefore divisible.
D
Although we need not consider the record of Oliver’s prior conviction under
the modified categorical approach—because Georgia state decisions clarify that
§ 16-11-37(a) is divisible—I do note that the record supports the same conclusion.
Most significantly, and in accordance with the previously mentioned cases,
Oliver’s indictment charged him exclusively under that portion of Georgia’s statute
criminalizing a “threat[] to commit any crime of violence . . . with the purpose of
terrorizing another.” By charging Oliver with that specific offense—to the
exclusion of the crimes of threatening to release a hazardous substance and
threatening to burn or damage property—his indictment further confirms the
statute is divisible. See Mathis, 136 S. Ct. at 2257 (“[A]n indictment . . . could
indicate, by referencing one alternative term to the exclusion of all others, that the
statute contains a list of elements, each one of which goes toward a separate
crime.”).
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The majority’s suggestion that, because the “indictment is not part of the
record,” we cannot consider its substance, makes no sense, particularly where both
the United States’ brief and Oliver’s presentence report quote it in relevant part.
Maj. Op. at 18. The indictment may not be a part of the court “record” in the sense
that neither party formally filed it with either the district court or our Court. But
the indictment certainly is part of Oliver’s “record of prior conviction,” which
Mathis expressly authorizes us to consider, see 136 S. Ct. at 2256–57, and which
we have acknowledged is precisely the type of document subject to judicial notice,
see Francisco v. U.S. Attorney Gen., 884 F.3d 1120, 1123 n.2 (11th Cir. 2018)
(acknowledging that, ordinarily, “the terms of the charging document” are “not in
dispute and thus are subject to judicial notice”); see also Fed. R. Evid. 201(b)(2)
(permitting courts to take judicial notice of facts not subject to reasonable dispute
because they “can be accurately and readily determined from sources whose
accuracy cannot be reasonably questioned”). The clear rule authorizing us to
consider Oliver’s indictment perhaps explains the majority’s awkward two-step,
acknowledging the potential usefulness of the indictment immediately after
disclaiming our ability to rely on it. Maj. Op. at 18 (the terms of an indictment
“could indicate” divisibility). The majority deftly sidesteps the correct answer: the
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indictment does indicate divisibility, and it is a clear sign that § 16-11-37(a)’s parts
are elements. 5
Considered together, the text of the statute, precedential state-court
decisions, and Oliver’s record of prior conviction lead to the ineluctable conclusion
that the statute is divisible.
III
Having found the statute divisible—and that Oliver was plainly charged
under its crime-of-violence section—I would further conclude that the offense for
which Oliver was convicted is a “violent felony” under the ACCA. 18 U.S.C. §
924(e)(1). The ACCA’s elements clause defines a violent felony as “any crime
punishable by imprisonment for a term exceeding one year . . . that . . . has as an
element the use, attempted use, or threatened use of physical force against
the person of another.” Id. at § 924(e)(2)(B)(i). This analysis is “categorical”—it
entails no examination of the facts underlying Oliver’s conviction. See Mathis,
136 S. Ct. at 2248 (the ACCA “cares not a whit about [such facts]”); Davis, 875
F.3d at 597. Rather, it requires us to scrutinize “the fact of conviction and the
elements required for conviction.” Davis, 875 F.3d at 597. If—and only if—“the
least of the acts criminalized includes the use, attempted use, or threatened use of
5
I agree with the majority that the Georgia pattern jury instruction for § 16-11-37(a) is
inconclusive for our purposes. See Maj. Op. at 17–18.
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physical force against another person” may the conviction qualify as a violent
felony under the ACCA. Id. That is, all possible violations of the statutory phrase
must involve force (or an attempt or threat of the same)—or else the violation
cannot count as a predicate offense for ACCA purposes. See id. at 598.
That force must be more than mere harmless touching; it must be
“violent force—that is, force capable of causing physical pain or injury to another
person.” United States v. Johnson, 559 U.S. 133, 140 (2010) (Curtis Johnson).
And, as the preceding quotation makes clear, the force threatened must be against
another person, not against property.
While the violation of a statute (or statutory phrase) that criminalizes
nonviolent conduct cannot constitute a predicate offense under the ACCA, the
mere theoretical possibility that a statute could be applied to nonviolent conduct
will not serve to render all convictions under the statute unreachable under the
ACCA. See, e.g., United States v. St. Hubert, 909 F.3d 335, 350 (11th Cir. 2018)
(rejecting appellant’s contention that a Hobbs Act robbery—which requires “fear
of injury”—could be committed without force because “a hypothetical nonviolent
violation of the statute, without evidence of actual application of the statute to such
conduct, is insufficient to show a realistic probability” that the statute could be
violated without the use, attempted use, or threat of force (internal quotation marks
and citation omitted)), abrogated on other grounds by United States v. Davis, 139
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S. Ct. 2319 (2019). This point was trenchantly established in Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007), where the Supreme Court, applying the
categorical analysis to the Immigration and Nationality Act’s (INA) enumerated-
offenses clause triggering removal, held that there must be “a realistic probability,
not a theoretical possibility, that the State would apply its statute to conduct that
falls outside” the activity covered by the INA. Absent concrete evidence of
convictions under the violent-crimes portion of § 16-11-37(a) for nonviolent
activity, I would hold that all convictions under that section are violent felonies for
purposes of the ACCA.
A
The relevant portion of Georgia’s terroristic-threats statute criminalizes
“threaten[ing] to commit any crime of violence . . . with the purpose of terrorizing
another.” O.C.G.A. § 16-11-37(a). The statute has a straightforward actus reus—
threatening a crime of violence6—and an equally straightforward mens rea: acting
with the purpose of terrorizing another person. The question for our purposes is
whether all possible violations of the statute “includ[e] the use, attempted use, or
threatened use of physical force against another person.” Davis, 875 F.3d at 597.
6
Section 16-11-37(a) uses the phrase “crime of violence” instead of “physical force” in
the ACCA. That discrepancy is readily resolved: Curtis Johnson tells us that when the ACCA
says “physical force,” it means “violent force.” 559 U.S. at 140. What is required under the
ACCA, then, is that the predicate offense involve the threat of violent force. The Georgia statute
requires a threat of a crime of violence. There is no daylight between those provisions.
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Georgia courts are the ultimate expositor on Georgia state law. See, e.g.,
Howard, 742 F.3d at 1346 (“[S]tate law is what the state supreme court says it
is.”). The Georgia courts read the statutory phrase at issue here to require two
elements for conviction: “(a) that the defendant threatened to commit a crime of
violence against the victim, and (b) that the defendant did so with the purpose of
terrorizing the victim.” Bryant, 832 S.E.2d at 831 (quoting Clement, 309 Ga. App.
at 379, 710 S.E.2d at 592). While the term “crime of violence” could bear
expounding, the Georgia courts instead insist on giving the phrase its ordinary
meaning. See, e.g., Lanthrip v. State, 235 Ga. 10, 11, 218 S.E.2d 771, 773 (1975)
(“There are no hidden pitfalls or disguised traps into which the unwary may fall
and commit the crime. The statute can be read and understood by a person of
ordinary intelligence seeking to avoid its violation.”); Major v. State, 301 Ga. 147,
152, 800 S.E.2d 348, 352 (2017) (“A person of ordinary intelligence can clearly
understand the meaning of threatening to commit any crime of violence.”).
So what is the ordinary meaning of “crime of violence”? “Violence” means
“the use of physical force so as to injure, abuse, damage, or destroy.” Violence,
MERRIAM-WEBSTER (Dec. 4, 2019, 11:25:20 AM), https://www.merriam-
webster.com/dictionary/violence. A threat of a crime of violence, then, is a threat
to physically injure the victim.
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The result is simple: to find that a Georgia defendant in Oliver’s shoes
violated the violent-crimes portion of the terroristic-threats statute, the jury must
find that he (1) threatened a crime of violence against another (2) with the purpose
of terrorizing that person. And a “crime of violence” is a crime involving the use
of physical force. By necessity, all convictions under this statutory phrase must
involve a threat of physical force—precisely what is required under the ACCA.
Categorically, a person cannot be convicted under this part of the terroristic-threats
statute unless he threatens violence. It really is that simple.
B
Oliver contends that a person “could violate this statute without using,
attempting to use, or threatening to use force against another.” 7 But he describes
no plausible scenario—and I can think of none—wherein a person could be
convicted of “threatening to commit any crime of violence,” O.C.G.A. § 16-11-
7
Oliver relies on Stewart v. United States, No. 5:06-cr-00039-HL-CHW-1, 2017 WL
1407641, at *2 (M.D. Ga. Apr. 19, 2017), in which a federal district court adopted a magistrate
judge’s findings and recommendations that—because § 16-11-37(a) could support a conviction
for threatening a simple battery, which itself is categorically not a violent felony, see Curtis
Johnson, 559 U.S. at 139–40—the statute “includes means that do not involve the requisite level
of force” under the ACCA “and is overbroad.” I think the Stewart court erred in analyzing not
whether § 16-11-37(a)’s crimes (terroristic threats) were “violent felonies,” but instead focusing
on whether the underlying crime threatened (i.e.., simple battery) was a “violent felony.” Under
our categorical analysis, it does not matter whether the crime threatened is a violent one
categorically. What matters is that the terroristic threat is a violent one. In Shepherd v. State,
230 Ga. App. 426, 496 S.E.2d 530 (1998), cited by the magistrate judge, the jury determined that
the defendant had threatened to commit a simple battery in a violent manner. That conduct
allowed the defendant to be convicted under the crime-of-violence section of § 16-11-37(a), and
likewise qualifies as a violent felony under the ACCA.
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37(a), without “threaten[ing] . . . physical force against another person,” 18 U.S.C.
§ 924(e)(2)(B)(i).
The key difference between those provisions—the absence of any language
in the Georgia statute requiring that the threat of violence be directed against a
person—appears at first to indicate a potential category of crimes covered by the
Georgia statute that does not involve physical force against another person, namely
the threat of a crime of violence against the property of another. Theoretically, a
person could be charged with “threaten[ing] to commit any crime of violence . . .
with the purpose of terrorizing another” for, say, threatening to slash his neighbor’s
tires. But that reading of the Georgia statute is wrong for two reasons.
First, Georgia courts read this statutory phrase to require that the threat be
made against the victim. See, e.g., Bryant, 832 S.E.2d at 831 (listing as an element
of the terroristic-threats statute that the defendant “threatened to commit a crime of
violence against the victim” (emphasis added)); Clement, 309 Ga. App. at 379, 710
S.E.2d at 592 (same). This is key: the Georgia Supreme Court holds that a person
may not be convicted under the crime-of-violence section of § 16-11-37(a) unless
the threat of a crime of violence is directed toward another human. See Bryant,
832 S.E.2d at 831. As construed by Georgia’s highest legal authority, the statute
simply does not allow a conviction for a threat of a crime of violence made against
property. Georgia prosecutors have apparently caught the hint: my survey of
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Georgia law uncovered not a single case in which a defendant was prosecuted
under the crime-of-violence portion of § 16-11-37(a) for threatening violence
against property.8 In the absence of any evidence of the statute’s being used to
prosecute threats of violence against property, I would abide by St. Hubert’s and
Duenas-Alvarez’s admonition not to engage in imaginative speculation about its
potential uses. See St. Hubert, 909 F.3d at 350; Duenas-Alvarez, 549 U.S. at 193.
Second, reading the crime-of-violence section of § 16-11-37(a) to include
threats of crimes against property (e.g., window smashing or tire slashing) would
render superfluous the statute’s burn-or-damage section. There is a strong
presumption against reading a statutory provision in such a way as to make another
portion of the same statute superfluous. See Corley v. United States, 556 U.S. 303,
314 (2009) (“A statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous, void or insignificant.”
(internal quotation marks and citation omitted)); In re Daughtrey, 896 F.3d 1255,
1276 n.51 (11th Cir. 2018) (“The canon against surplusage is strongest when an
interpretation would render superfluous another part of the same statutory
scheme.” (internal quotation marks and citation omitted)). If threatening to
commit a crime of violence against property is sufficient to be convicted under the
8
The United States provides a comprehensive list of Georgia prosecutions under the
statute in the appendix to its brief. It shows the same: there are no prosecutions for threatening
violence against property under the portion of § 16-11-37(a) relevant here.
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crime-of-violence section, the burn-or-damage section serves no purpose. Any
threat to commit a crime of violence against property is—necessarily—a threat to
damage that property.
Taken together, the Georgia courts’ interpretation of the terroristic-threats
statute and the presumption against superfluity counsel strongly in favor of reading
“threatens to commit any crime of violence” as criminalizing only threats of
violence against another person. Any conviction under the crime-of-violence
section of § 16-11-37(a) therefore constitutes “threaten[ing] . . . physical force
against the person of another” as contemplated in the ACCA’s elements clause. 18
U.S.C. § 924(e)(2)(B)(i). That is, threatening physical force against the person of
another is an element of any and all convictions under the crime-of-violence
section of Georgia’s terroristic-threats statute. A conviction under that portion of
the statute—like Oliver’s—therefore qualifies as a predicate offense triggering the
ACCA’s sentence enhancement.
IV
I would hold that § 16-11-37(a) is divisible, Oliver was convicted under its
crime-of-violence section, and such a conviction categorically qualifies as a
“violent felony” under the ACCA’s elements clause. The majority errs in coming
to the opposite conclusion. I respectfully dissent.
44