United States v. Degeare

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 13, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6080
JOSEPH R. DEGEARE,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. Nos. 5:16-CV-00648-C and 5:13-CR-00283-C-1)
_________________________________
Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender with him on the briefs), Denver, Colorado, for Defendant-Appellant.
Ashley Altshuler, Assistant United States Attorney (Mark A. Yancey, United States
Attorney with her on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
_________________________________
Before HOLMES, MATHESON, and MORITZ, Circuit Judges.
_________________________________
MORITZ, Circuit Judge.
_________________________________
Under the Armed Career Criminal Act (ACCA) of 1984, 18 U.S.C. § 924(e),
an offender convicted of violating 18 U.S.C. § 922(g)(1) faces an enhanced prison
sentence if he or she has at least three prior convictions for violent felonies or serious
drugs offenses. In theory, deciding what offenses constitute violent felonies should
be simple enough. But in practice, it can be a tricky business—especially because we
must be “certain” that the violent-felony moniker “necessarily” applies to a particular
offense before we can treat that offense as an ACCA predicate. United States v.
Titties, 852 F.3d 1257, 1268 (10th Cir. 2017) (quoting United States v. Huizar, 688
F.3d 1193, 1195 (10th Cir. 2012)).
We haven’t yet addressed the precise level of certainty this standard requires.
We need not do so today. Whatever the term “certainty” might mean, id. (quoting
Mathis v. United States, 136 S. Ct. 2243, 2257 (2016)), it doesn’t encompass the
significant doubt we’re left with here. And because we can’t be “certain” that the
offense at issue in this appeal is “necessarily” a violent felony, id., we conclude that
the district court erred in treating it as one for purposes of denying Joseph Degeare’s
28 U.S.C. § 2255 motion. Accordingly, we reverse.
Background
In 2014, Degeare pleaded guilty to being a felon in possession of a firearm, see
§ 922(g)(1), and the sentencing court imposed a 15-year prison sentence under the
ACCA, see § 924(e)(1) (imposing mandatory minimum prison sentence of 15 years
for § 922(g)(1) conviction if offender has at least “three previous convictions . . . for
a violent felony or a serious drug offense”). In doing so, the sentencing court treated
five of Degeare’s previous Oklahoma convictions as ACCA predicates: (1) his 1990
conviction for forcible sodomy, see Okla. Stat. Ann. tit. 21, § 888 (1982); (2) his two
1994 convictions for forcible sodomy, see id. § 888 (1992); (3) his 1994 conviction
2
for lewd molestation of a minor, see id. § 1123 (1992); and (4) his 2003 conviction
for possession with intent to distribute, see Okla. Stat. Ann. tit. 63, § 2-401 (2002).
Degeare didn’t appeal. But in 2015, he sought habeas relief under § 2255.
After the district court denied his § 2255 motion, Degeare filed an untimely notice of
appeal. We dismissed, and the Supreme Court denied review.
Relying on Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v.
United States, 136 S. Ct. 1257 (2016), Degeare then sought and received
authorization to file a second or successive § 2555 motion. See § 2255(h)(2);
28 U.S.C. § 2244(b)(3)(C). In that motion, Degeare argued that the sentencing court
erred in treating four of his previous convictions as ACCA predicates: (1) his 1990
conviction for forcible sodomy, (2) his two 1994 convictions for forcible sodomy,
and (3) his 1994 conviction for lewd molestation of a minor. Specifically, Degeare
asserted that forcible sodomy and lewd molestation only constitute violent felonies
under the ACCA’s residual clause, see § 924(e)(2)(B)(ii), which the Supreme Court
struck down as unconstitutionally vague in Johnson, see 135 S. Ct. at 2563; Welch,
136 S. Ct. at 1265 (holding that rule announced in Johnson applies retroactively to
cases on collateral review). After Johnson and Welch, Degeare insisted, only his 2003
conviction for possession with intent to distribute remains an ACCA predicate, thus
rendering the ACCA’s sentencing enhancement inapplicable. See § 924(e)(1)
(requiring at least “three previous convictions . . . for a violent felony or a serious
drug offense” to trigger enhancement).
3
The government didn’t dispute that Degeare’s 1990 forcible-sodomy
conviction and 1994 lewd-molestation conviction no longer qualify as ACCA
predicates after Johnson and Welch. But it maintained that Degeare nevertheless isn’t
entitled to relief. In support, it asserted that although Degeare’s two 1994 convictions
for forcible sodomy no longer trigger the enhancement under the ACCA’s now-
defunct residual clause, see § 924(e)(2)(B)(ii), those convictions are for offenses that
nevertheless remain violent felonies under the ACCA’s elements clause, see
§ 924(e)(2)(B)(i) (defining violent felony, in relevant part, as an offense that “has as
an element the use, attempted use, or threatened use of physical force against the
person of another”); Johnson, 135 S. Ct. at 2563 (“Today’s decision does not call
into question . . . the remainder of the [ACCA’s] definition of a violent felony.”).
Accordingly, the government maintained, Degeare continues to have three
convictions for violent felonies or serious drug offenses, thus rendering harmless any
Johnson error the sentencing court committed by relying on the ACCA’s residual
clause.
The district court agreed. First, it concluded that Oklahoma’s forcible sodomy
statute is divisible because it describes three separate offenses. Second, it determined
that Degeare specifically pleaded guilty to violating § 888(B)’s third subsection, which
prohibits “sodomy accomplished with any person by means of force, violence, or threats
of force or violence accompanied by apparent power of execution regardless of the age of
the victim or the person committing the crime.” § 888(B)(3). Finally, it ruled that this
particular subsection of Oklahoma’s forcible-sodomy statute constitutes a violent felony
4
under § 924(e)(2)(B)(i)’s elements clause, thus rendering harmless any Johnson error.
Accordingly, the district court denied Degeare’s § 2255 motion. Degeare appeals.
Analysis
We review de novo the district court’s conclusion that Degeare’s 1994
convictions for forcible sodomy constitute ACCA predicates. See United States v.
Ridens, 792 F.3d 1270, 1272 (10th Cir. 2015). In arguing they do not, Degeare
advances four separate arguments. But to resolve this appeal, we need address only
one: his assertion that § 888 isn’t divisible.
The parties disagree on this point. But before we resolve their disagreement, it’s
worth noting a few areas where the parties’ positions overlap. First, neither party disputes
that Degeare is only subject to the ACCA’s sentencing enhancement if he has at least
three prior convictions for violent felonies or serious drug offenses. See § 924(e)(1).
Likewise, the parties agree that (1) Degeare’s 2003 conviction for possession with intent
to distribute constitutes an ACCA predicate and (2) his 1990 forcible-sodomy conviction
and his 1994 lewd-molestation conviction do not. Finally, the parties agree that if § 888
isn’t divisible, then Degeare’s 1994 convictions for forcible sodomy don’t constitute
ACCA predicates—a conclusion that would require us to reverse the district court’s order
denying his § 2255 motion. In other words, the parties agree that if we conclude § 888
isn’t divisible, that conclusion is dispositive of this appeal.
To understand why the parties agree on this last point, some background
information is helpful. As explained above, Degeare is only subject to the ACCA’s
sentencing enhancement if his 1994 convictions for forcible sodomy constitute violent
5
felonies under the elements clause. And in determining whether an offense constitutes a
violent felony under the ACCA’s elements clause, courts use one of two methods: (1) the
pure categorical approach or (2) the modified categorical approach. Under the pure
categorical approach, we examine the statute—and only the statute—and ask whether “it
can be violated without the ‘use, attempted use, or threatened use of physical force.’”
Titties, 852 F.3d at 1273 (quoting § 924(e)(2)(B)(i)). If so, “then any conviction under
that statute will not count toward an ACCA enhancement” under the elements clause. Id.
at 1265; see also United States v. Hammons, 862 F.3d 1052, 1054 (10th Cir. 2017)
(explaining that “we look to the least of the acts criminalized by” statute of conviction in
determining whether that statute “reaches any conduct” that doesn’t satisfy
§ 924(e)(2)(B)(i)), cert. denied, No. 17-6850, 2018 WL 311855 (U.S. Jan. 8, 2018).
This pure categorical approach applies to statutes that aren’t divisible, i.e., those
that contain “a single, indivisible set of elements.” Descamps v. United States, 570 U.S.
254, 258 (2013). But if the statute in question is divisible, i.e., if it “contains more than
one crime,” then we instead apply the modified categorical approach. Titties, 852 F.3d
at 1265. Unlike the pure categorical approach, the modified categorical approach doesn’t
begin and end solely with our examination of the relevant statute. Instead, “[t]he
modified categorical approach allows a court to peer around the statute of conviction and
examine certain record documents underlying the defendant’s prior offense” to determine
which of the statute’s alternative crimes the defendant was actually convicted of
committing. Id. at 1266. Once we make that threshold determination, we can then apply
the categorical approach to the relevant statutory alternative. See id. at 1266–67. That is,
6
we can then ask whether the crime defined by that specific statutory alternative “has as an
element the use, attempted use, or threatened use of physical force against the person of
another.” § 924(e)(2)(B)(i); see also Descamps, 570 U.S. at 257 (explaining that once
court “determine[s] which alternative [offense] formed the basis of the defendant’s prior
conviction,” it “can then do what the categorical approach demands”); United States v.
Pam, 867 F.3d 1191, 1206–07 (10th Cir. 2017) (concluding that statute of conviction was
divisible; looking to record documents to discern which of statute’s alternative offenses
formed basis of defendant’s convictions; and then asking whether those particular
alternatives satisfy elements clause).
Here, Degeare pleaded guilty to two counts of forcible sodomy, which Oklahoma
defined at the relevant time as:
1. sodomy committed by a person over [18] years of age upon a person
under [16] years of age; or
2. sodomy committed upon a person incapable through mental illness or
any unsoundness of mind of giving legal consent regardless of the age of
the person committing the crime; or
3. sodomy accomplished with any person by means of force, violence, or
threats of force or violence accompanied by apparent power of execution
regardless of the age of the victim or the person committing the crime.
§ 888(B)(1)–(3).
The government concedes that, under the pure categorical approach, § 888(B)
doesn’t satisfy the elements clause. This is so, the government says, because neither
§ 888(B)(1) nor § 888 (B)(2) “has as an element the use, attempted use, or threatened use
of physical force against the person of another.” § 924(e)(2)(B)(i); see also Titties, 852
7
F.3d at 1265 (explaining that, under categorical approach, “[i]f some conduct that would
be a crime under the statute would not be a violent felony under the ACCA, then any
conviction under that statute will not count toward an ACCA enhancement”).
In light of this concession, we will only affirm the district court’s order denying
Degeare’s § 2255 motion if the government demonstrates that (1) § 888(B) is divisible;
(2) Degeare’s forcible sodomy convictions arose under § 888(B)(3); and (3) § 888(B)(3)
satisfies the elements clause. See United States v. Garcia, 877 F.3d 944, 948 (10th Cir.
2017) (discussing government’s burden to demonstrate that Johnson error was harmless);
Titties, 852 F.3d at 1272 n.19 (citing government’s burden to prove that prior conviction
constitutes ACCA predicate). Thus, we turn first—and, as it so happens, last—to the
divisibility question. See Titties, 852 F.3d at 1267 (stating that modified categorical
approach “has no role to play” if statute isn’t divisible (quoting Descamps, 570 U.S.
at 264)).
I. Divisibility and the Mathis Toolbox
A statute is divisible if it “list[s] elements in the alternative, and thereby define[s]
multiple crimes.” Mathis, 136 S. Ct. at 2249. Elements, in turn, “are what the jury must
find beyond a reasonable doubt to convict the defendant” or “what the defendant
necessarily admits when he [or she] pleads guilty.” Id. at 2248. Critically, not all statutory
alternatives are elements. Instead, some statutes merely “enumerate[] various factual
means of committing a single element.” Id. at 2249. And if a statute’s alternatives are
merely means, as opposed to elements, then the statute isn’t divisible and the modified
categorical approach doesn’t apply. See id. at 2253, 2256 (holding that lower court erred
8
in applying modified categorical approach to statute that contained only alternative
means and therefore wasn’t divisible).
Here, neither party disputes that the applicable statute comprises three alternatives.
It defines forcible sodomy as:
1. sodomy committed by a person over [18] years of age upon a person
under [16] years of age; or
2. sodomy committed upon a person incapable through mental illness or
any unsoundness of mind of giving legal consent regardless of the age of
the person committing the crime; or
3. sodomy accomplished with any person by means of force, violence, or
threats of force or violence accompanied by apparent power of execution
regardless of the age of the victim or the person committing the crime.
§ 888(B)(1)–(3). But the parties disagree about whether these alternatives constitute
elements—things a “jury must find beyond a reasonable doubt to convict [a] defendant”
of forcible sodomy at trial, Mathis, 136 S. Ct. at 2248—or whether they instead constitute
means—“various factual ways of committing some component of” forcible sodomy that
“a jury need not find” or, alternatively, that a defendant who pleads need not admit, id.
at 2249.
In deciding whether a state statute’s alternatives are elements or means, we have
several tools at our disposal. First, a state-court decision may “definitively answer[] the
question.” Id. at 2256; see also id. (concluding that statutory alternatives were means
rather than elements because state-court decision characterized them as “‘alternative
method[s]’ of committing one offense, so that a jury need not agree” on which one
9
applies (alteration in original) (quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa
1981))).
Second, “the statute on its face may resolve the issue.” Id. For instance, “[i]f
statutory alternatives carry different punishments, then under [Apprendi v. New Jersey,
530 U.S. 466 (2000)] they must be elements.” Mathis, 136 S. Ct. at 2256. “Conversely, if
a statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s
means of commission.” Id. (quoting United States v. Howard, 742 F.3d 1334, 1348 (11th
Cir. 2014)). And sometimes, the statute itself will “identify which things must be charged
(and so are elements) and which need not be (and so are means).” Id.
Third, if these sources of state law—the statute itself and any state-court decisions
interpreting it—don’t “provide clear answers,” then we “have another place to look: the
record of a prior conviction itself.” Id. For instance, if the indictment and jury
instructions reiterate all of the statutory alternatives, “[t]hat is as clear an indication as
any that each alternative is only a possible means of commission, not an element that the
prosecutor must prove to a jury beyond a reasonable doubt. So too if those documents use
a single umbrella term.” Id. at 2257. “Conversely, 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.
According to Mathis, employing these tools should make answering the elements-
or-means question “easy.” Id. at 2256. Between the record documents and state law,
Mathis assures us, “indeterminacy should prove more the exception than the rule.” Id.
at 2257. But on the off chance that a clear answer to the means-or-elements question
10
remains elusive, Mathis makes it clear what we must do—or, more precisely, what we
must not do: If “state law fails to provide clear answers” and the “record materials [don’t]
speak plainly,” then we won’t be “able to satisfy ‘[Taylor v. United States, 495 U.S. 575
(1990)]’s demand for certainty.’” Id. (quoting Shepard v. United States, 544 U.S. 13, 21
(2005)). And in the absence of such certainty, we can’t treat an offender’s prior
conviction as an ACCA predicate. See Titties, 852 F.3d at 1268 (noting that “we must be
‘certain’ the prior conviction ‘necessarily’ qualifies under the ACCA to apply the
enhancement” (quoting Huizar, 688 F.3d at 1195)). In other words, unless we are certain
that a statute’s alternatives are elements rather than means, the statute isn’t divisible and
we must eschew the modified categorical approach.1
A. The State-Court Decision
Degeare argues we need only employ the first of these tools here because a state-
court decision “definitively” establishes that § 888(B)’s alternatives are means, rather
than elements. Mathis, 136 S. Ct. at 2256. In support, Degeare cites Bruner v. State, 612
P.2d 1375 (Okla. Crim. App. 1980).
1
We haven’t yet resolved what quantum of certainty Taylor requires. At some
point, we may well be presented with a close case in which the answer to that
question will prove determinative. But this isn’t such a case. Thus, in the absence of
any briefing by either party, we decline to answer this question here. Instead, we hold
only that Taylor requires us to be at least more certain than not that a statute’s
alternatives constitute elements before we will treat that statute as divisible. In other
words, if the evidence is merely in equipoise, the modified categorical approach
won’t apply. Requiring anything less would be inconsistent with the Court’s language
in Mathis. See 136 S. Ct. at 2256–57 (allowing court to treat state statute as divisible
only if state law or record documents “definitively,” “clear[ly],” and “plainly”
establish that statute’s alternatives are elements; indicating that where answer to
means-or-elements question is instead “indetermin[ate],” courts cannot “satisfy
‘Taylor’s demand for certainty” (quoting Shepard, 544 U.S. at 21)).
11
In Bruner, the defendant was charged with rape “under conjunctive theories:
(1) that the [victim] was under the age of sixteen and (2) that the act occurred by means
of force, overcoming her resistance and (3) [that the act occurred] by means of threats of
immediate injury and great bodily harm, accompanied by apparent power of execution.”
Id. at 1380; see also Okla. Stat. Ann. tit. 21, § 1111 (1971) (defining rape, in relevant
part, as sexual intercourse with a victim where (1) the victim “is under the age of [16]
years”; (2) the victim’s “resistance is overcome by force and violence”; or (3) the victim
“is prevented from resistance by threats of immediate and great bodily harm,
accompanied by apparent power of execution”); Okla. Stat. Ann. tit. 21, § 1114 (1971)
(classifying first of these alternatives as second-degree rape and second and third of these
alternatives as first-degree rape).
On appeal, the defendant challenged his conviction, asserting that “he was denied
due process of law and may have been convicted under a nonunanimous verdict.” Bruner,
612 P.2d at 1379–80. In advancing the latter contention, the defendant argued that
because the jury instructions set forth the “theories of guilt . . . in the disjunctive,” it was
“conceivable . . . that the jury could have found him guilty without unanimously finding
him guilty of each and every element necessary to the crime beyond a reasonable doubt.”
Id. at 1380. In other words, he argued that some jurors might have found him guilty under
§ 1111’s first subsection (because they believed that he engaged in “an act of sexual
intercourse” with a victim who was “under the age of [16] years”), while others might
have found him guilty under § 1111’s fourth subsection (because they believed that he
did so where his victim “resist[ed] but her resistance [was] overcome by force and
12
violence”), and still others might have found him guilty under § 1111’s fifth subsection
(because they believed that he did so “by threats of immediate and great bodily harm,
accompanied by apparent power of execution”). § 1111(1st), (4th), (5th).
The Oklahoma Court of Criminal Appeals (OCCA) rejected the defendant’s jury-
unanimity argument, as well as his due-process argument. In doing so, it reasoned that
although rape can “be accomplished in different ways,” it is nevertheless “only a single
crime” under Oklahoma law. Bruner, 612 P.2d at 1380 (emphases added) (citing
Huckleberry v. State, 81 P.2d 493, 495 (Okla. Crim. App. 1938)). Thus, the OCCA
concluded, when the state alleges that a defendant committed rape by engaging in sexual
intercourse with a victim under the age of 16 and by force and by threats, the government
must only present sufficient evidence of any one of these “theories of guilt” to support a
conviction for the “single crime” of rape. Id.
In short, Bruner holds that (1) these statutory alternatives are merely “different
ways” of committing “a single crime” and (2) a jury need not unanimously agree on any
particular one of these statutory alternatives to convict. Id. And when a state-court
decision “of that kind exists,” it “definitively” establishes that the statutory alternatives
are means, rather than elements. Mathis, 136 S. Ct. at 2256; see also id. (concluding that
statutory alternatives were means based on state-court decision holding that those
alternatives were merely “‘alternative method[s]’ of committing one offense” and that “a
jury need not agree” on which one applies (alteration in original) (quoting Duncan, 312
N.W.2d at 523)).
13
Citing the similarities between § 888(B) and the statutes at issue in Bruner,
Degeare argues that § 888(B)’s statutory alternatives must therefore be means as well.
The government disagrees, insisting that Bruner isn’t the silver bullet Degeare makes it
out to be. In support, the government advances three arguments.
The government first points out the obvious: Degeare was convicted of forcible
sodomy, not rape. And because Bruner addresses only Oklahoma’s rape statutes, the
government asserts, it doesn’t control here.
In light of this distinction, we agree that Bruner doesn’t “definitively answer[]”
the means-or-elements question in this case.2 Mathis, 136 S. Ct. at 2256. But this hardly
dooms Bruner to irrelevancy. After all, the OCCA “has long recognized the analogy
between sodomy and rape.” Hopper v. State, 302 P.2d 162, 165 (Okla. Crim. App. 1956);
see also Kimbro v. State, 857 P.2d 798, 799 (Okla. Crim. App. 1990) (“[T]he principles
of law applicable to rape apply to sodomy . . . .”); Hill v. State, 368 P.2d 669, 671 (Okla.
Crim. App. 1962) (acknowledging analogy between rape and sodomy and explaining that
legal principles that apply to former also apply to latter). And even if it hadn’t, we would
draw that same analogy based on the similarities between the rape statutes at issue in
Bruner and the sodomy statute at issue here. Compare § 1111 (defining rape, in relevant
part and in different subsections, as rape of a victim “under the age of sixteen years”; of a
victim “incapable through lunacy or any other unsoundness of mind, whether temporary
2
For this reason, we need not address Degeare’s suggestion that when a state-
court decision does appear to “definitively answer[]” the means-or-elements
question, Mathis, 136 S. Ct. at 2256, “the analysis ends” and we can’t employ the
other Mathis tools, Rep. Br. 5.
14
or permanent, of giving legal consent”; of a victim whose “resistance is overcome by
force and violence”; or of a victim who is “prevented from resistance by threats of
immediate and great bodily harm, accompanied by apparent power of execution”), and
§ 1114 (classifying as first-degree rape any rape by an offender “over [18] years of age
upon a [victim] under the age of [14]”; of a victim “incapable through lunacy or
unsoundness of mind of giving legal consent”; “by means of force overcoming [the
victim’s] resistance”; or “by means of threats of immediate and great bodily harm,
accompanied by apparent power of execution, preventing such resistance”), with
§ 888(B) (defining forcible sodomy, in relevant part and in different subsections, as
sodomy “committed by a person over [18] years of age upon a person under [16] years of
age”; “committed upon a person incapable through mental illness or any unsoundness of
mind of giving legal consent”; or “accomplished with any person by means of force,
violence, or threats of force or violence accompanied by apparent power of execution”).
In short, under the relevant versions of the Oklahoma statutes at issue, a defendant
can commit either rape or forcible sodomy by engaging in a particular sex act (1) with a
victim under a certain age; (2) with a victim whose mental illness or unsoundness of
mind renders the victim incapable of giving legal consent; (3) by force; or (4) by credible
threat of force. And the government makes no effort to explain why the OCCA would
treat these similar statutory alternatives as means in one context and elements in another.
Accordingly, we see no reason to think the OCCA wouldn’t extend Bruner’s analysis of
§ 1111 and § 1114 to § 888(B). See Hill, 368 P.2d at 671. Thus, the government’s first
argument fails.
15
Second, even assuming that Bruner’s holding extends to § 888(B), the government
insists that this holding is nevertheless of limited value here. That’s because, according to
the government, Bruner doesn’t actually establish that “the alternative methods of
commiting [sic] rape [are] means as opposed to elements.” Aplee. Br. 23. In support, the
government advances a two-part argument. First, it insists that the OCCA resolved the
defendant’s argument in Bruner based solely on due-process principles. Second, it asserts
that to the extent Bruner says anything about jury unanimity, that discussion isn’t
dispositive of the means-or-elements question.
We disagree with the government’s cramped reading of Bruner. True, the OCCA
focused primarily on the defendant’s due-process argument. But it unambiguously
acknowledged (1) that the defendant was also raising a jury-unanimity argument, see
Bruner, 612 P.2d at 1380 (“It is conceivable, the appellant maintains, that the jury could
have found him guilty without unanimously finding him guilty of each and every element
necessary to the crime beyond a reasonable doubt.”), and (2) that the jury instructions
indeed presented the alternative “theories of guilt . . . in the disjunctive,” id.
Moreover, the OCCA rejected the defendant’s entire “fifth assignment of error,”
which included both the defendant’s due-process argument and his jury-unanimity
argument. Id. at 1379–80. And critically, the OCCA did so without ever suggesting that it
had any reason to think the jurors were, in fact, unanimous as to the specific statutory
alternative or alternatives that applied. Id. Thus, we can only conclude that the OCCA
rejected the defendant’s unanimity argument because the court instead determined that
such unanimity wasn’t required in the first place—a conclusion that flows naturally from
16
the OCCA’s holding that the alternatives at issue were simply “different ways” (or
means) of committing the “single crime” of rape. Id. at 1380; see also Blackwell v. State,
663 P.2d 12, 16 (Okla. Crim. App. 1983) (“The unanimity guaranteed by the [Oklahoma
Constitution] is required only with respect to the ultimate issue of the appellant’s guilt or
innocence of the crime charged and not with respect to alternative means by which the
crime was committed.”). Thus, we reject the government’s invitation to elide Bruner’s
jury-unanimity analysis.
Finally, we also reject the government’s third challenge to Degeare’s Bruner
argument—that to the extent Bruner contains a jury-unanimity analysis, that analysis
isn’t dispositive of the means-or-elements question. On the contrary, Mathis makes jury
unanimity the touchstone of the means-or-elements inquiry.
First, in illustrating the distinction between these two concepts, Mathis
describes a hypothetical statute that requires using a deadly weapon but “spells out
various factual ways of committing [that] component of the offense,” e.g., using a
knife, gun, or bat. 136 S. Ct. at 2249. Because “[a] jury could convict” a defendant
under this hypothetical statute “even if some jurors ‘conclude[d] that the defendant
used a knife’ while others ‘conclude[d] he used a gun,’ so long as all agreed that the
defendant used a ‘deadly weapon,’” Mathis explains, these alternatives constitute
“legally extraneous circumstances”—i.e., means. Id. (alterations in original) (first
quoting Richardson v. United States, 526 U.S. 813, 817 (1999); then quoting
Descamps, 570 U.S. at 270). Next, Mathis goes on to apply the distinction illustrated
by this hypothetical to the real-world question before the Court: it holds that the
17
statutory alternatives at issue constitute means rather than elements precisely because
a state-court decision establishes that those alternatives are merely different ways “of
committing one offense, so that a jury need not agree” on one or more of those
alternatives to convict.3 Id. at 2250, 2256 (emphasis added).
Taking our cue from Mathis, we have likewise adopted a unanimity-focused
approach to the means-or-elements question. See, e.g., United States v. Burtons, 696
F. App’x 372, 378 n.3 (10th Cir. 2017) (unpublished) (citing Mathis for proposition
that “where jury unanimity isn’t required, statutory alternatives constitute means, not
elements”); Titties, 852 F.3d at 1270 (“[B]ut it is not clear whether [the statutory
alternatives] are different means to commit the same crime or whether they define
different crimes such that a jury would have to agree on a particular alternative to
convict.” (emphasis added)); Titties, 852 F.3d at 1271 (noting that structure of
applicable jury instruction didn’t “suggest the jury would have to agree on a
particular alternative,” thus indicating that alternatives were means rather than
elements). And our sister circuits have done the same. See, e.g., United States v.
3
The government also suggests that Mathis’ jury-unanimity test doesn’t apply
when the statutory alternatives “are separately listed as elements in jury instructions.”
Aplee. Br. 26. But this reasoning is circular: whether the statutory alternatives are
“listed as elements,” id. (emphasis added), is the question—not the divining rod we
use to answer it. Moreover, we know of no authority that treats alternatives as
elements (regardless of how they appear in a particular jury instruction) in the face of
a binding state-court decision holding that a jury need not unanimously agree on one
or more of them to convict. See Sylvia v. Wisler, 875 F.3d 1307, 1313 (10th Cir.
2017) (explaining that in resolving matters of state law, federal courts “must defer to
the most recent decisions of the state’s highest court” (quoting Kokins v. Teleflex,
Inc., 621 F.3d 1290, 1295 (10th Cir. 2010))). Accordingly, we decline to recognize
such an exception to Mathis’ unanimity rule.
18
Robinson, 869 F.3d 933, 940 (9th Cir. 2017); United States v. McMillan, 863 F.3d
1053, 1057 (8th Cir. 2017); United States v. Starks, 861 F.3d 306, 316 (1st Cir.
2017); Harbin v. Sessions, 860 F.3d 58, 66, 67 (2d Cir. 2017); United States v. Lynn,
851 F.3d 786, 796 (7th Cir. 2017); United States v. Steiner, 847 F.3d 103, 119 (3d
Cir. 2017); United States v. Gundy, 842 F.3d 1156, 1163 (11th Cir. 2016), cert.
denied, 138 S. Ct. 66 (2017); United States v. Howell, 838 F.3d 489, 498 (5th Cir.
2016), cert. denied, 137 S. Ct. 1108 (2017); United States v. Fuertes, 805 F.3d 485,
498 (4th Cir. 2015).
Accordingly, Bruner’s conclusion that a jury need not unanimously agree on
the statutory “way[]” or “ways” in which a particular defendant “accomplished” the
“single crime” of rape, 612 P.2d at 1380, “definitively” resolves that the statutory
alternatives at issue in Bruner are means rather than elements, Mathis, 136 S. Ct.
at 2256. And given the similarities between those statutory alternatives and the
statutory alternatives at issue here, we conclude that Bruner weighs heavily in favor
of treating § 888(B)’s alternatives as means too. Nevertheless, because Bruner doesn’t
“definitively” resolve the means-or-elements question in this case, Mathis, 136 S. Ct. at
2256, we turn next to the other tools in the Mathis toolbox: the statutory language and the
records underlying Degeare’s convictions, see id.; Titties, 852 F.3d at 1272 n.19 (“Mathis
unambiguously instructs federal courts to settle, if possible, the means/elements issue
when applying the ACCA even if there is no on-point state decision.”).4
4
Again, we need not resolve whether, when a state-court decision does appear
to “definitively” establish that statutory alternatives are means, Mathis, 136 S. Ct.
19
 B. The Statute Itself
Mathis lists three ways in which a “statute on its face may resolve” the means-or-
elements question. 136 S. Ct. at 2256. None of them resolve that question here. First,
§ 888(B)’s alternatives don’t “carry different punishments,” such that they must be
elements under Apprendi. Mathis, 136 S. Ct. at 2256. On the contrary, § 888’s penalty
provision—which is tethered solely to § 888(A)—states that “[a]ny person who forces
another person to engage in the detestable and abominable crime against nature . . . is
guilty of a felony punishable by . . . not more than [20] years” in prison.” § 888(A). Nor
is § 888(B) necessarily “drafted to offer ‘illustrative examples,’” which would indicate
that its alternatives are means.5 Mathis, 136 S. Ct. at 2256 (quoting Howard, 742 F.3d
at 1348). Likewise, § 888(B) doesn’t “itself identify which things must be charged (and
so are elements) and which need not be (and so are means).” Id.
Going beyond the statutory characteristics that Mathis treats as relevant, the
government asserts that because § 888(B)’s alternatives appear in three separate
subsections, they must be elements. In support, it cites United States v. Maldonado-
Palma, 839 F.3d 1244 (10th Cir. 2016), cert. denied, 137 S. Ct. 1214 (2017), where we
at 2256, we may nevertheless look to the face of the statute itself or the record
documents to answer the means-or-elements question. But we note that the Mathis
Court didn’t take this approach: its inquiry started and stopped with a state-court
decision that held the relevant alternatives were means. See id.
5
One could plausibly argue that, by stating “forcible sodomy . . . include[s]”
the statutory alternatives at issue here, § 888(B) (emphasis added), § 888 provides a
“non-exhaustive list” of “illustrative examples [that] are not alternative elements.”
Howard, 742 F.3d at 1348; see also Mathis, 136 S. Ct. at 2256. But because Degeare
expressly concedes that it’s not clear from the face of the statute that § 888(B)’s
alternatives are merely “illustrative examples,” Howard, 742 F.3d at 1348, we decline to
address this possibility.
20
opined, “New Mexico’s aggravated assault statute is a divisible statute because it sets out
alternative elements for aggravated assault in three subsections.” Id. at 1247.
The government mischaracterizes Maldonado-Palma. There, we didn’t rely on the
fact that the statutory alternatives appeared in separate subsections to conclude that they
were elements. Instead, we relied on the fact that those statutory alternatives were
elements—as established by a state-court decision indicating as much—to conclude that
the statute was divisible. See id. (citing State v. Armijo, 104 P.3d 1114, 1120 (N.M. Ct.
App. 2004)). Moreover, it doesn’t appear that the defendant in Maldonado-Palma even
argued on appeal that the statute at issue there wasn’t divisible. Instead, he argued that
even assuming the statute was divisible and the modified categorical approach therefore
applied, the government failed to produce any documents that might “demonstrate which
of the three possible forms of assault . . . supported the basis of [his] conviction.” Brief
for Appellant, Maldonado-Palma, 839 F.3d 1244 (No. 15-2146), 2015 WL 7565593,
at *28. Thus, it doesn’t appear that the means-or-elements question was ever at issue
there.
In any event, as Bruner makes clear, the fact that § 888(B)’s alternatives appear in
different subsections doesn’t demonstrate that they’re elements. One of the rape statutes
at issue in Bruner set forth its alternatives in separate subsections, and yet the OCCA held
that those alternatives were means. See § 1111 (listing alternative definitions of rape in
separate subsections); Bruner, 612 P.2d at 1380 (holding that jury need not agree on
particular statutory alternative to convict defendant of rape). Similarly, Oklahoma’s first-
degree-murder statute lists malice-aforethought murder and felony murder in separate
21
subsections of a single statute, see Okla. Stat. Ann. tit. 21, § 701.7, and yet a jury need
not unanimously agree on one alternative or the other to convict, see Crawford v. State,
840 P.2d 627, 640 (Okla. Crim. App. 1992) (describing these alternatives as different
“factual bas[e]s” on which jury need not unanimously agree; explaining that jury must
only be unanimous as to whether defendant committed “single crime” of “first[-]degree
murder”), overruled on other grounds by Malone v. State, 168 P.3d 185 (Okla. Crim.
App. 2007).
Because nothing on the statute’s “face” answers the means-or-elements question,
Mathis, 136 S. Ct. at 2256, we turn to the documents underlying Degeare’s convictions.
See id. at 2257 (“And if state law fails to provide clear answers, federal judges have
another place to look: the record of a prior conviction itself.”). But before we do, we
pause to recap. First, we will only treat § 888(B) as divisible if we are at least more
certain than not that its alternatives are elements. See supra note 1. Second, Bruner
strongly suggests that § 888(B)’s alternatives are means. Third, nothing “on [the] face” of
§ 888(B) suggests otherwise. Mathis, 136 S. Ct. at 2256. Thus, in light of Bruner, we will
only treat § 888(B) as divisible if the record documents “plainly” indicate that its
alternatives are elements. Id. at 2257 (explaining that when “record materials” don’t
“speak plainly,” we will be unable “to satisfy ‘Taylor’s demand for certainty’” (quoting
Shepard, 544 U.S. at 21)).
C. The Record Documents
Mathis lists three ways in which record documents can “speak plainly” as to
whether statutory alternatives constitute means or elements. Id. First, if the charging
22
document or jury instructions “reiterat[e] all the [statutory alternatives],” this “is as clear
an indication as any that each alternative is only a possible means of commission, not an
element that the prosecutor must prove to a jury beyond a reasonable doubt.” Id. Second,
the same is true if the charging document or jury instructions “use a single umbrella
term.” Id. Third, “an indictment and jury instructions could indicate, by” instead
“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. We begin by
applying these principles to the relevant jury instructions and then discuss the charging
documents.6
1. The Jury Instructions
The current version of Oklahoma’s Uniform Jury Instructions provides, in relevant
part, the following instruction for forcible sodomy:
No person may be convicted of forcible oral sodomy unless the State has
proved beyond a reasonable doubt each element of the crime. These
elements are:
First, penetration;
Second, of the mouth/vagina of the defendant/victim;
Third, by the mouth/penis of the defendant/victim;
6
Because Degeare didn’t go to trial, there was no jury and hence there were no
jury instructions. Nevertheless, “the state’s uniform jury instructions can provide insight
into the means/elements question.” Titties, 852 F.3d at 1270 n.15.
In Titties, we indicated that “Oklahoma’s Uniform Jury Instructions provide[d] an
additional source of state law guidance.” Id. at 1270 (emphasis added). We do not depart
from that characterization here. We simply opt to analyze the relevant uniform
instructions alongside the relevant charging documents because Mathis indicates the
same analysis applies to both. See 136 S. Ct. at 2257.
23
[Fourth, which is accomplished by means of force or violence, or threats of
force or violence that are accompanied by the apparent power of
execution.]
You are further instructed that any sexual penetration, however slight, is
sufficient to complete the crime.
OR
[Fourth, by a person over the age of eighteen on a child under the age of
sixteen.]
You are further instructed that any sexual penetration, however slight, is
sufficient to complete the crime.
OR
[Fourth, committed upon a person incapable through mental illness or any
unsoundness of mind of giving legal consent].
You are further instructed that any sexual penetration, however slight, is
sufficient to complete the crime.
Okla. Unif. Jury Instr. CR 4-128.7
7
As Degeare points out, it doesn’t appear that Oklahoma had a uniform
sodomy instruction at the time of his conviction. And we question whether the
current version of the instruction—whatever it might have to say about the current
status of the law—could possibly “speak plainly” as to whether Oklahoma treated
§ 888(B)’s alternatives as means or elements at the time of Degeare’s conviction. See
United States v. Starks, 861 F.3d 306, 317 (1st Cir. 2017) (recognizing that “state laws
can change over time” and holding that, “[i]n the ACCA context . . . the relevant question
is whether the crime was divisible at the time of the defendant’s prior conviction”);
United States v. Seabrooks, 839 F.3d 1326, 1348 (11th Cir. 2016), cert. denied, 137 S. Ct.
2265 (2017) (“If the state statute was divisible at the time the defendant was convicted of
violating it, and if at least one but not all of the different crimes created by the statute
count as violent felonies under the ACCA’s elements clause, then [court will apply
modified categorical approach].” (emphasis added)). But we need not resolve this
question; even assuming that we may rely on the current version of the instruction, it
doesn’t plainly indicate that § 888(B)’s alternatives are elements.
24
In arguing that this instruction indicates § 888(B)’s alternatives are elements, the
government first points to the “Notes on Use” following the instruction; those notes
expressly state that a “trial court should select the Fourth Element that is supported by the
evidence.” Okla. Unif. Jury Instr. CR 4-128 notes on use (emphasis added). But simply
calling a statutory alternative an element doesn’t make it so. Cf. Mathis, 136 S. Ct. at
2251 (“The label a State assigns to a crime—whether ‘burglary,’ ‘breaking and entering,’
or something else entirely—has no relevance to whether that offense is an ACCA
predicate.”). This much is clear from the fact that the “Notes on Use” following
Oklahoma’s first-degree-rape instruction likewise refer to § 1111’s alternatives—
alternatives that Bruner establishes are actually means, 612 P.2d at 1380—as
“element[s].” Okla. Unif. Jury Instr. CR 4-120 notes on use.8 Thus, the “Notes on Use”
following Okla. Unif. Jury Instr. CR 4-128 don’t plainly indicate that § 888(B)’s
alternatives are elements.
Next, the government argues that by setting forth § 888(B)’s alternatives in
separate subsections of the instruction, rather than “bunch[ing them] together,” the
instruction indicates that Oklahoma treats § 888(B)’s statutory alternatives as elements.
See Titties, 852 F.3d at 1271 (“The instruction bunches together the statutory purpose
alternatives into a single element. It does not suggest the jury would have to agree on a
particular alternative to satisfy the fifth element.”).
8
Consistent with the government’s reliance on the current version of Okla.
Unif. Jury Instr. CR 4-128, we cite the current version of Okla. Unif. Jury Instr. CR 4-120
as well.
25
But Oklahoma’s first-degree-rape instruction likewise doesn’t “bunch[] together”
§ 1111’s statutory alternatives. Id. Instead, like Oklahoma’s uniform forcible-sodomy
instruction, Oklahoma’s uniform rape instruction sets forth the relevant alternatives
separately and divides them by “OR.” Compare Okla. Unif. Jury Instr. CR 4-128, with
Okla. Unif. Jury Instr. CR 4-120. Nevertheless, the OCCA has held that those alternative
ways of committing rape are means rather than elements. Bruner, 612 P.2d at 1380.
Moreover, although Oklahoma’s forcible sodomy statute doesn’t “bunch[] together” the
statutory alternatives at issue here, Titties, 852 F.3d at 1271, neither does it provide
wholly separate instructions for each of those alternatives, cf. Pam, 867 F.3d at 1205
(holding that statutory alternatives were elements rather than means where New Mexico
provided “three separate and distinct instructions”—one for each of statute’s three
alternatives); Burtons, 696 F. App’x at 379 (holding that statutory alternatives were
elements rather than means where Oklahoma provided separate jury instruction for each
statutory alternative).
Finally, the “Notes on Use” following Oklahoma’s forcible-sodomy instruction do
indicate that a trial court should select the § 888(B) alternative “that is supported by the
evidence” in a particular case. Okla. Unif. Jury Instr. CR 4-128 notes on use. And this
could arguably suggest that those alternatives are elements. See Mathis, 136 S. Ct.
at 2257 (“[J]ury 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.”). But the “Notes on Use” don’t expressly preclude a trial court
from instructing the jury on more than one (or even all) of § 888(B)’s alternatives if the
26
evidence warrants such an instruction. Okla. Unif. Jury Instr. CR 4-128 notes on use. Nor
do they prohibit the trial court, in that scenario, from “bunch[ing] together” those
statutory alternatives “into a single element.” Titties, 852 F.3d at 1271; see also Mathis,
136 S. Ct. at 2257 (explaining that when jury instruction “reiterat[es] all” of statute’s
alternatives, “[t]hat is as clear an indication as any that each alternative is only a possible
means of commission, not an element that the prosecutor must prove to a jury beyond a
reasonable doubt”). Accordingly, we reject the government’s assertion that the jury
instructions “‘plainly’ treat the alternatives as elements, not means.” Aplee. Br. 21
(quoting Mathis, 136 S. Ct. at 2257).
2. The Charging Documents
Mathis leaves us with one final avenue for determining whether statutory
alternatives constitute means or elements: examination of the charging document. 136 S.
Ct. at 2257. If the charging document reiterates all the statutory alternatives, that
indicates those alternatives are means. But if it instead “referenc[es] one alternative term
to the exclusion of all others, that [indicates] the statute contains a list of elements, each
one of which goes toward a separate crime.” Id.
Here, the government points out, the charging document alleges that Degeare
“forcibly put[] his penis inside [one of the victim’s] mouths” and “forc[ed]” the other
victim “to place his penis inside [her] mouth.” R. vol. 1, 123. Thus, the government
concludes, the charging document references only a single § 888(B) alternative “to the
27
exclusion of all others,” Mathis, 136 S. Ct. at 2257: “sodomy accomplished with any
person by means of force,” § 888(B)(3).9
We agree this is one plausible interpretation of the charging document. But it’s not
the only one. As Degeare points out, the term “force” (and its variations) don’t appear
solely in § 888(B)(3). Instead, (1) the title of § 888 itself refers to “[f]orcible sodomy”;
(2) § 888(A) states that “[a]ny person who forces another person to engage in the
detestable and abominable crime against nature, . . . upon conviction, is guilty of a felony
punishable by imprisonment in the penitentiary for a period of not more than [20] years”;
(3) § 888(B) states that “[t]he crime of forcible sodomy shall include” certain acts; and
(4) § 888(B)(3) refers to “sodomy accomplished . . . by means of force.” § 888 (emphases
added).
9
We reproduce the language of Count 1 and Count 2 below:
28
Thus, it’s not at all clear to us that in alleging Degeare committed “forcible oral
sodomy” against one of his victims “by forcing her to place his penis inside [her] mouth”
and against his other victim by “by forcibly putting his penis inside [her] mouth,” the
charging document necessarily and specifically invokes § 888(B)(3). R. vol. 1, 123
(emphases added). Instead, it’s possible that each charge’s first use of the term is merely
a nod to the name of the offense charged, while its second reference is—as Degeare
argues—an effort to rope in the language of § 888(A). And in that case, Degeare points
out, the language of the charging document arguably indicates (by failing to charge a
specific § 888(B) alternative) that § 888(B)’s alternatives are simply “diverse means of
satisfying [§ 888(A)’s] single [force] element.” Mathis, 136 S. Ct. at 2249; see also id.
(explaining that when statute’s alternatives are merely “various factual ways of
committing some component of the offense,” those “ways” constitute means, not
elements); id. at 2256 (distinguishing between elements, “which . . . must be charged”
and means, “which need not be”).10
The government also points out that the charging document for Degeare’s 1990
forcible-sodomy conviction specifically alleges only the age of the victim, rather than
using the term “force.”11 And according to the government, this demonstrates that
§ 888(B)’s alternatives are elements. Again, we agree this is one plausible interpretation.
10
True, the charging document uses the phrases “by forcing her” and “by
forcibly.” R. vol. 1, 123 (emphasis added). And the phrase “by . . . force” appears
only in § 888(B)(3). But this hardly seems dispositive, especially when the charging
document only generally references § 888, rather than specifically citing § 888(B)(3).
11
We note that the charging document alleges Degeare “require[d]” his victim
to engage in sodomy. R. vol. 1, 121.
29
See Mathis, 136 S. Ct. at 2257 (explaining that if charging document “referenc[es] one
alternative term to the exclusion of all others,” that indicates “the statute contains a list of
elements, each one of which goes toward a separate crime”); § 888(B)(1) (defining
forcible sodomy, in relevant part, as “sodomy committed by a person over [18] years of
age upon a person under [16] years of age”). But again, it’s not the only plausible one. As
Degeare points out, the government’s argument overlooks the fact that Degeare’s 1990
forcible-sodomy conviction is based on conduct that occurred in 1989. And at that time,
Oklahoma’s forcible-sodomy statute (1) wasn’t divided into subsections and (2) didn’t
reference the victim’s age. Instead, it only generally prohibited “forc[ing] another person
to engage in the detestable and abominable crime against nature.” § 888 (1989).
Thus, by referencing the victim’s age—instead of expressly alleging that Degeare
“force[d]” the victim to engage in sodomy, id.—the charging document for Degeare’s
1990 forcible-sodomy conviction arguably indicates that engaging in sodomy with a
victim who was too young to consent was merely one of any number of “factual ways of
committing [the force] component of the [1989] offense.” Mathis, 136 S. Ct. at 2249; see
also Kimbro, 857 P.2d at 799 (holding that jury instruction stating that child under 16
can’t consent to sodomy didn’t “negate[]” § 888’s force requirement).
In any event, we need not decide which of the parties’ competing interpretations of
the charging documents is correct. We hold only that, whatever the charging documents
might have to say about the means-or-elements question in this case, they don’t say it
“plainly.” Mathis, 136 S. Ct. at 2257. And for the reasons discussed above, nothing else
the government points to “clear[ly]” indicates that § 888(B)’s alternatives are elements,
30
either. Id. at 2256. Accordingly, in light of Bruner, we can’t be more certain than not that
§ 888(B) is divisible. And that means the district court erred in applying the modified
categorical approach; in treating Degeare’s 1994 forcible-sodomy convictions as ACCA
predicates under the elements clause; and in denying his § 2255 motion.
Conclusion
In Bruner, the OCCA held that the alternative ways in which a defendant can
violate the Oklahoma rape statutes at issue in that case were means, not elements. 612
P.2d at 1379–80. We see no reason to think the OCCA would reach a different
conclusion about the similar ways of violating Oklahoma’s forcible sodomy statute. And
the government identifies none. Accordingly, we can’t be “certain”—under any plausible
definition of that term—that Oklahoma’s forcible-sodomy statute is “necessarily”
divisible. Titties, 852 F.3d at 1268 (quoting Huizar, 688 F.3d at 1195).
In light of this conclusion, we hold that the district court erred in relying on
the modified categorical approach to determine that forcible sodomy is a violent
felony. Id. at 1267. And because the government concedes that forcible sodomy isn’t
a violent felony under the pure categorical approach, we likewise hold that the
district court erred in treating Degeare’s 1994 convictions for forcible sodomy as
ACCA predicates. That leaves Degeare with only a single qualifying conviction: his
2003 conviction for possession with intent to distribute. Because that single
conviction isn’t sufficient to trigger the ACCA’s enhanced penalty, see § 924(e)(1),
Degeare’s ACCA sentence is illegal and he is entitled to relief. We therefore reverse
31
the district court’s order denying Degeare’s § 2255 motion, vacate his sentence, and
remand for resentencing.
32