                                                                              FILED
                                                                  United States Court of Appeals
                                      PUBLISH                             Tenth Circuit

                     UNITED STATES COURT OF APPEALS                       March 24, 2017

                                                                      Elisabeth A. Shumaker
                                  TENTH CIRCUIT                           Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 15-6236
 DAMINION T. TITTIES, a/k/a Damion
 Tyrone Tittle, a/k/a Damion Tyron Tittles,
 a/k/a Capone,

       Defendant - Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF OKLAHOMA
                      (D.C. No. 5:15-CR-00018-R-1)


Michael L. Brooks, The Brooks Law Firm, Oklahoma City, Oklahoma, appearing for
Appellant.

Steven W. Creager, Assistant United States Attorney (Mark A. Yancey, United States
Attorney, and Kerry Blackburn, Assistant United States Attorney, with him on the brief),
Office of the United States Attorney, Oklahoma City, Oklahoma, appearing for Appellee.


Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.


MATHESON, Circuit Judge.
       Damion Tittle1 pled guilty to violating 18 U.S.C. § 922(g)(1), which bars felons

from possessing firearms. This crime carries a maximum sentence of 10 years, see 18

U.S.C. § 924(a)(2), but the Government argued Mr. Tittle’s sentence should be enhanced

under the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e)(1). The

enhancement—a mandatory minimum term of 15 years—applies when a defendant has

“three previous convictions . . . for a violent felony or a serious drug offense, or both.”

18 U.S.C. § 924(e)(1). The district court concluded Mr. Tittle had three qualifying

offenses and sentenced him to a prison term of 188 months, more than 15 years.

       On appeal, Mr. Tittle argues he is not subject to an ACCA-enhanced sentence

because one of his three prior convictions is not a qualifying offense. We agree.

Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we vacate his

sentence and remand for resentencing.

                                    I. BACKGROUND

       In August 2015, Mr. Tittle pled guilty to being a felon in possession of firearms.

The written plea agreement specified that Mr. Tittle faced a penalty “based on the

possible application of [the ACCA]” of “not less than fifteen years up to life

imprisonment.” App., Vol. 1 at 45. The agreement further provided that “[i]f [the

ACCA] is found not to apply, the maximum penalty is up to ten years imprisonment.” Id.



       1
       Like the parties and the district court, we refer to the defendant by his proper last
name of Tittle.

                                             -2-
       The Government argued for an ACCA sentence because Mr. Tittle had three

qualifying Oklahoma state convictions:

   1. unlawful distribution of cocaine;

   2. unlawful trafficking in cocaine within 1,000 feet of a public park; and

   3. feloniously pointing a firearm.

       Mr. Tittle conceded the two cocaine convictions qualified as “serious drug

offenses” under the ACCA, see 18 U.S.C. § 924(e)(2)(A), but he argued his conviction

for feloniously pointing a firearm did not constitute a “violent felony” as defined by the

ACCA, see 18 U.S.C. § 924(e)(2)(B).

       Deciding whether a prior conviction qualifies as an ACCA predicate offense

requires comparing the crime’s elements to the ACCA. This elements-based comparison

is known as the “categorical approach,” which we discuss in detail below. Under it, if a

crime’s elements satisfy the ACCA definition, the offense counts as an ACCA predicate.

       Mr. Tittle’s 1996 firearm conviction was based on Okla. Stat. tit. 21 § 1289.16

(1995).2 We considered this statute in United States v. Hood, 774 F.3d 638 (10th Cir.


       2
         At the time of Mr. Tittle’s underlying conduct on June 7, 1995, the statute
read in relevant part:

       It shall be unlawful for any person to willfully or without lawful cause
       point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or
       not, at any person or persons for the purpose of threatening or with the
       intention of discharging the firearm or with any malice or for any purpose
       of injuring, either through physical injury or mental or emotional
       intimidation, or for purposes of whimsy, humor or prank . . . .
                                                                              Continued . . .
                                             -3-
2014), and held it could be violated in both violent and nonviolent ways. Id. at 646. As

such, Hood said a sentencing court must consult documents from the record of a

defendant’s prior conviction under § 1289.16 to discern whether the conviction was

violent and therefore qualifies as an ACCA predicate. Id. at 645.

      This process of examining the record is known as the “modified categorical

approach.” Described more fully below, this approach looks to the record documents to

identify the relevant elements for the defendant’s crime of conviction. Hood required

application of the modified categorical approach to § 1289.16 convictions. Id.

      When Hood was decided, the law in our circuit held that sentencing courts should

apply the modified categorical approach when a defendant’s statute of conviction

contained alternative terms, regardless of whether those terms described different means

of committing a single crime or different elements delineating separate crimes. See

United States v. Trent, 767 F.3d 1046, 1058-61 (10th Cir. 2014), abrogated by Mathis v.
______________________________________
Cont.


Okla. Stat. tit. 21 § 1289.16 (1995). The statute was amended, effective September 1,
1995, by adding after the “whimsy, humor or prank” language: “or in anger or
otherwise.” 1995 Okla. Sess. Laws 1205-06. The parties sometimes refer to the
amended version of the law, see Aplt. Br. at 11 (Mr. Tittle); Oral Arg. at 29:30-41
(Government), but we focus on the law as it applied to Mr. Tittle when he committed the
offense. See United States v. Sturm, 672 F.3d 891, 897 n.5 (10th Cir. 2012) (en banc)
(“Our analysis is limited to the version of the statute in effect at the time of the
Defendants’ conduct.”). And in any event, this amendment does not affect our
conclusion that Mr. Tittle’s conviction for violating § 1289.16 does not qualify as a
“violent felony” under the ACCA because consideration of the amendment would only
strengthen our conclusion.

                                           -4-
United States, 136 S. Ct. 2243, 2251 n.1 (2016). In 2016, the Supreme Court held in

Mathis that the distinction between means and elements is important and that the

modified categorical approach is available only when a statute lists alternative elements.

136 S. Ct. at 2253.

       Because Mr. Tittle’s sentencing occurred in 2015 before Mathis was decided, the

parties and the district court relied upon Hood. Mr. Tittle argued his § 1289.16

conviction was non-violent and thus not an ACCA offense. The Government argued Mr.

Tittle had violated § 1289.16 in a violent fashion because the factual summary in his state

plea agreement included the following handwritten statement: “I pointed a weapon at

[the victim] and threatened her life.” App., Vol. 1 at 94.3

       The district court followed Hood and applied the modified categorical approach by

examining record materials from Mr. Tittle’s state case to learn how he had violated

§ 1289.16. Based on the handwritten admission in the plea agreement, the court ruled

Mr. Tittle had been convicted under the violent portion of § 1289.16 and that he therefore

had three qualifying ACCA offenses. Applying the ACCA enhancement, the court

sentenced Mr. Tittle to 188 months in prison.




       3
         The plea agreement’s factual summary includes other statements that were
stricken by hand. Because we apply the categorical approach, we have no reason to
examine this plea document or glean significance from these markings.

                                             -5-
       Mr. Tittle filed a timely notice of appeal in December 2015. See Fed. R. App. P.

4(b)(1)(A)(i).4

       On June 23, 2016, the Supreme Court decided Mathis, 136 S. Ct. 2243, which the

parties have addressed in their briefs. Mathis’s effect on our Hood decision is the central

issue in this appeal.

                                    II. DISCUSSION

       We begin with our standard of review. We then address relevant case law,

including Mathis, on how courts should determine whether a defendant’s past convictions

warrant an ACCA enhancement. Applying the law to Mr. Tittle’s conviction under

§ 1289.16, we conclude it is not a qualifying ACCA offense and remand for resentencing.

       4
         The Government initially argued Mr. Tittle could not appeal his sentence
because his plea agreement waived his right to appeal. The Government filed a motion
asking us to enforce the waiver and dismiss Mr. Tittle’s appeal. See generally 10th Cir.
R. 27.3(A)(1)(d); United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)
(discussing enforcement of appeal waivers).
       A separate motions panel of this court denied the Government’s motion. It
determined Mr. Tittle’s waiver did not bar this appeal because “whether [his] sentence
exceeds the applicable statutory maximum depends on the disposition of his challenge to
the ACCA enhancement.” United States v. Titties, No. 15-6236, at 4 (10th Cir. May 18,
2016) (order denying motion to enforce appeal waiver). The motions panel invited the
Government to raise the waiver issue again “for fresh consideration and definitive
disposition by the merits panel.” Id. at 5.
       The Government accepted that invitation in its merits briefing. See Aplee. Br.
at 10-20. Mr. Tittle replied that the motions panel had correctly determined the waiver
was unenforceable. See Aplt. Reply Br. at 1-3. After briefing, the Government filed a
motion asking us to strike the appeal-waiver arguments from its brief and “proceed
directly to the merits of the appeal.” Mtn. to Strike at 2. Mr. Tittle has expressed no
objection.
       We grant the Government’s motion to strike and decline to address the appeal
waiver. We proceed to the merits of Mr. Tittle’s sentencing appeal.

                                            -6-
                                  A. Standard of Review

       Whether a prior conviction satisfies the ACCA’s violent felony definition is a

legal question we review de novo. United States v. Ridens, 792 F.3d 1270, 1272 (10th

Cir. 2015). But we typically review for plain error when on appeal “a defendant objects

to an ACCA enhancement on grounds different from those presented in the trial court.”

Hood, 774 F.3d at 645; see Fed. R. Crim. P. 52(b).

       The parties disagree about the standard of review. Mr. Tittle asserts our review

should be de novo because Mathis had not been decided when he was sentenced and

Hood foreclosed the argument he makes now—that we should apply the categorical

approach to § 1289.16 convictions. See Hood, 774 F.3d at 645 (holding modified

categorical approach applies to § 1289.16). The Government agrees that whether a prior

conviction qualifies under the ACCA is a legal question but argues our review should be

for plain error because Mr. Tittle did not object to the district court’s use of the modified

categorical approach under Hood.5



       5
          We reject the Government’s separate contention that we should not consider Mr.
Tittle’s argument at all because he invited error. See United States v. DeBerry, 430 F.3d
1294, 1302 (10th Cir. 2005) (“The invited-error doctrine prevents a party who induces an
erroneous ruling from being able to have it set aside on appeal.” (quotations omitted)).
The Government contends that Mr. Tittle invited any error because he requested that the
district court use the modified categorical approach.
        Mr. Tittle responds he did not invite error when he correctly informed the district
court that Hood required use of the modified categorical approach. He argues the
invited-error doctrine does not apply when a party relied on settled law that changed
while the case was on appeal.
                                                                              Continued . . .
                                             -7-
       We need not resolve this dispute. An illegal sentence—one “where the term of

incarceration exceeds the statutory maximum”—“trigger[s] per se, reversible, plain

error.” United States v. Gonzalez-Huerta, 403 F.3d 727, 739 n.10 (10th Cir. 2005) (en

banc). As we will show, Mr. Tittle received an illegal sentence. We would therefore

vacate his sentence under either standard of review.

                                  B. Legal Background

       In this section, we (1) describe the ACCA enhancement, (2) explain the

approaches courts use to determine whether a prior conviction is an ACCA-qualifying

offense, and (3) discuss selection of the applicable approach.

1. The ACCA Enhancement

       Absent an enhancement under the ACCA, “the felon-in-possession statute sets a

10-year maximum penalty.” Mathis, 136 S. Ct. at 2248 (citing 18 U.S.C. § 924(a)(2)).


______________________________________
Cont.

        We agree with Mr. Tittle. We rejected a similar invited-error argument in Ray v.
Unum Life Insurance Co., 314 F.3d 482, 486-87 (10th Cir. 2002). In Ray, the parties had
assumed in the district court that one legal standard applied, but the law changed after
appellate briefing. Id. at 486. We said “an intervening change in the law permits
appellate review of an issue not raised below.” Id. at 487; see also Anixter v. Home-Stake
Prod. Co., 77 F.3d 1215, 1222 (10th Cir. 1996) (“Although this argument was not raised
below, inasmuch as [a new Supreme Court case] was decided after appellant filed her
notice of appeal, we may consider changes in governing law arising during the pendency
of the appeal.”). We also find persuasive the Eleventh Circuit’s refutation of the invited-
error argument in United States v. Jones, 743 F.3d 826, 827-28 & n.1 (11th Cir. 2014)
(rejecting government’s invited error argument, addressing defendant’s new argument
based on intervening Supreme Court and circuit precedent, reviewing for plain error, and
vacating defendant’s ACCA sentence).

                                            -8-
But the “ACCA prescribes a 15-year mandatory minimum sentence if a defendant is

convicted of being a felon in possession of a firearm following three prior convictions for

a ‘violent felony.’” Id. “Serious drug offenses” can also count as ACCA predicate

convictions. See 18 U.S.C. § 924(e)(1). Convictions by guilty plea qualify as ACCA

offenses. See Shepard v. United States, 544 U.S. 13, 19 (2005). The government must

show a past offense qualifies as an ACCA predicate. See United States v. Delossantos,

680 F.3d 1217, 1219 (10th Cir. 2012).

       There is no dispute that Mr. Tittle has two “serious drug offenses.” He is subject

to the ACCA’s 15-year mandatory minimum only if his 1996 Oklahoma conviction for

feloniously pointing a firearm under § 1289.16 qualifies as a violent felony.

       The ACCA’s “force clause” defines violent felony as follows:

       (B) [T]he term “violent felony” means any crime punishable by
       imprisonment for a term exceeding one year . . . that—

              (i)    has as an element the use, attempted use, or threatened use of
                     physical force against the person of another[.]

18 U.S.C. § 924(e)(2)(B)(i).6 “[P]hysical force” in this definition “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); see also United States v. King, 979 F.2d 801,

803 (10th Cir. 1992) (“[T]hreatened use of physical force means both an intent to use

       6
        The ACCA’s definition of violent felony also includes an “enumerated-offenses
clause” and a “residual clause.” See 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court
invalidated the residual clause as unconstitutionally vague in Johnson v. United States,
135 S. Ct. 2551, 2563 (2015). Only the force clause is at issue here.

                                            -9-
force and a communication of that intent.” (quotations omitted)).7

2. The Categorical and Modified Categorical Approaches

       The categorical and modified categorical approaches are not mutually exclusive

alternatives. Courts always apply the categorical approach to determine whether a prior

offense qualifies as an ACCA violent felony by comparing the elements of the crime of

conviction to the ACCA. The modified categorical approach, by contrast, is not used in

every case, but, when the statute of conviction is divisible in that it contains more than

one crime, the modified categorical approach reveals the relevant elements for the

comparison under the categorical approach.8

       a. The categorical approach

       To determine whether a prior conviction is categorically an ACCA violent felony,

courts do not consider the facts underlying the prior conviction, however violent those

facts may be. Instead, the inquiry is whether the crime’s elements satisfy the ACCA’s

definition of violent felony. If 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, regardless of whether the conduct that led

       7
        The parties do not dispute that a conviction under § 1289.16 may be punished by
more than a year in prison. See Okla. Stat. tit. 21 § 1289.17 (1995) (setting penalty of
imprisonment for “not less than one (1) year nor more than ten (10) years”).
       8
         The categorical and modified categorical approaches are also used outside the
ACCA context such as in applying Sentencing Guideline and immigration provisions.
See, e.g., United States v. Taylor, 843 F.3d 1215 (10th Cir. 2016) (Sentencing
Guidelines); Rangel-Perez v. Lynch, 816 F.3d 591 (10th Cir. 2016) (immigration).

                                            -10-
to the defendant’s prior conviction was in fact violent.

       In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court established

this elements-based approach to determine whether a conviction qualifies as an ACCA

offense. The Court said, “Congress intended that the [ACCA] enhancement provision be

triggered by crimes having certain specified elements.” Id. at 588. This “formal

categorical approach” looks to the elements of the statutes of conviction “and not to the

particular facts underlying those convictions.” Id. at 600. A prior conviction is an

ACCA predicate only if the elements of the prior crime necessarily satisfy the ACCA

definition. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013); see also id. at

2287 (“Congress . . . meant ACCA to function as an on-off switch, directing that a prior

crime would qualify as a predicate offense in all cases or in none.”).

       “[I]f the statute sweeps more broadly” than the ACCA definition—that is, if some

conduct would garner a conviction but would not satisfy the definition—then any

“conviction under that law cannot count as an ACCA predicate.” Id. at 2283; see also

Mathis, 136 S. Ct. at 2251 (“We have often held, and in no uncertain terms, that a state

crime cannot qualify as an ACCA predicate if its elements are broader than those of a

listed generic offense.”). This is so even when the defendant’s conduct leading to the

underlying conviction would satisfy the ACCA’s violent felony definition. “[T]he

mismatch of elements saves the defendant from an ACCA sentence,” Mathis, 136 S. Ct.

at 2251, because “[t]he key . . . is elements, not facts,” Descamps, 133 S. Ct. at 2283.


                                            -11-
       b. The modified categorical approach

       Taylor left open the possibility that “in a narrow range of cases” the sentencing

court “may . . . go beyond the mere fact of conviction.” 495 U.S. at 602. The modified

categorical approach allows a court to peer around the statute of conviction and examine

certain record documents underlying the defendant’s prior offense, but this is done only

for a limited purpose.

       Courts employ the modified categorical approach when a prior conviction is based

on “a so-called ‘divisible statute,’” one that “sets out one or more elements of the offense

in the alternative.” Descamps, 133 S. Ct. at 2281. For these statutes, “[n]o one could

know, just from looking at the statute, which version of the offense [the defendant] was

convicted of,” and there can be no categorical comparison of elements when the statute is

unclear about which of the alternative elements formed the basis of the defendant’s

conviction. Id. at 2284. For courts faced with a divisible statute, “the modified approach

serves—and serves solely—as a tool to identify the elements of the crime of conviction

when a statute’s disjunctive phrasing renders one (or more) of them opaque.” Mathis,

136 S. Ct. at 2253. Once the relevant elements are identified, the court applies the

categorical approach.

       Courts consult record documents from the defendant’s prior case for the limited

purpose of identifying which of the statute’s alternative elements formed the basis of the




                                            -12-
prior conviction. Descamps, 133 S. Ct. at 2284-85.9 Although the record may reveal

factual details of the offense, “[a] court may use the modified approach only to determine

which alternative element in a divisible statute formed the basis of the defendant’s

conviction.” Id. at 2293 (emphasis added). With the elements (not the facts) identified,

courts “can then do what the categorical approach demands” and compare those elements

to the ACCA definition. Id. at 2281.

       Thus, “the modified approach merely helps implement the categorical approach

when a defendant was convicted of violating a divisible statute.” Id. at 2285. “[I]t

preserves the categorical approach’s basic method” of comparing elements to the ACCA,

but it “adds . . . a mechanism” to identify the relevant elements and thereby facilitates the

categorical comparison “when a statute lists multiple, alternative elements, and so

effectively creates several different . . . crimes.” Id. (second ellipsis in original)

(quotations omitted).

3. Mathis—Means and Elements

       “The modified approach . . . has no role to play” when the statute of conviction is

indivisible—i.e., when it lacks alternative elements. Id. at 2285; see also id. at 2282

(“[S]entencing courts may not apply the modified categorical approach when the crime of

which the defendant was convicted has a single, indivisible set of elements.”). Thus,


       9
        The Supreme Court has said courts may consult “charging documents, plea
agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a
bench trial, and jury instructions and verdict forms.” Johnson, 559 U.S. at 144.

                                              -13-
choosing the right initial approach is an essential step and depends on discerning whether

the statute of conviction is “divisible.” In Mathis, the Supreme Court clarified how

courts should take this step.

       a. Elements as the key to divisibility

       A statute is divisible only if it “sets out one or more elements of the offense in the

alternative.” Id. at 2281 (emphasis added). It is not enough that a statute is framed in the

disjunctive. As the Court stressed in Mathis, the statutory phrases listed in the alternative

must be elements, not means. Mathis, 136 S. Ct. at 2256; see also United States v.

Edwards, 836 F.3d 831, 833 (7th Cir. 2016) (“The Supreme Court recently clarified that a

statute is considered divisible only if it creates multiple offenses by setting forth

alternative elements.”); United States v. Gardner, 823 F.3d 793, 802 (4th Cir. 2016) (“A

crime is not divisible simply because it may be accomplished through alternative means,

but only when alternative elements create distinct crimes.”).

       In Mathis, the Supreme Court defined the key distinction between “elements” and

“means.” “Elements are the constituent parts of a crime’s legal definition—the things the

prosecution must prove to sustain a conviction.” Mathis, 136 S. Ct. at 2248 (quotations

omitted). “[T]hey are what the defendant necessarily admits when he pleads guilty.” Id.

By contrast, means are “various factual ways of committing some component of the

offense.” Id. at 2249. Beyond these definitional differences, in determining whether a

prior conviction is an ACCA offense, elements matter and means do not. A past

conviction counts “if, but only if, its elements” satisfy the ACCA. Id. at 2247.
                                             -14-
       If the listed items are alternative means of satisfying an element, then the statute is

not divisible and the categorical approach must be applied. Id. at 2253. If the

alternatives are elements, then the modified categorical approach should be applied. Id.

       Because the choice of approach hinges on whether the statute is divisible and

because a statute’s divisibility depends on the means/elements distinction, the Supreme

Court in Mathis instructed that a court’s “first task” when “faced with an alternatively

phrased statute is . . . to determine whether its listed items are elements or means.” Id. at

2256; see also id. at 2248 (“Distinguishing between elements and facts is . . . central to

ACCA’s operation.”).

       b. Separating elements and means

       The Mathis decision identified several tools for deciding whether an alternatively

phrased criminal law lists elements or means.

       First, in some instances, the statute on its face will provide the answer. Id. at

2256. For example, “[i]f statutory alternatives carry different punishments, then under

Apprendi [v. New Jersey, 530 U.S. 466 (2000),] they must be elements.” Id.

“Conversely, if a statutory list is drafted to offer ‘illustrative examples,’ then it includes

only a crime’s means of commission.” Id. Or sometimes the “statute may itself identify

which things must be charged (and so are elements) and which need not be (and so are

means).” Id.

       Second, state-court decisions may answer the question. “When a ruling of that

kind exists, a sentencing judge need only follow what it says.” Id.
                                              -15-
       Third, when “state law fails to provide clear answers,” federal courts “have

another place to look: the record of a prior conviction itself.” Id.10 For instance, if an

indictment or the jury instruction includes the statute’s alternative terms, “[t]hat is as

clear an indication as any that each alternative is only a possible means of commission,

not an element.” Id. at 2257.11 “Conversely, an 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.” Id.

       If these tools—statutory text, state law authority, and record documents—do not

answer the means/elements question, then a court “will not be able to satisfy Taylor’s

demand for certainty” that the offense qualifies as an ACCA conviction. Id. (quotations

omitted); see also United States v. Huizar, 688 F.3d 1193, 1195 (10th Cir. 2012) (stating


       10
           This “peek” at the record is different from the modified categorical approach.
See Mathis, 136 S. Ct. at 2256-57. Unlike the modified categorical approach, which
courts use to identify the particular elements in a divisible statute that underlie a
defendant’s conviction, this look at the record addresses a threshold issue: whether the
statute is divisible. Thus, this “peek at the record documents is for the sole and limited
purpose of determining whether the listed items are elements of the offense.” Id.
(brackets and quotations omitted). “Only if the answer is yes can the court make further
use of the materials” by applying the modified categorical approach. Id. at 2257.
       11
          Likewise, the use of “a single umbrella term” in the charging document or
instructions can reveal that the specific alternatives are means of satisfying a single
element. Id. The dissent places great weight on the presence or absence of an “umbrella
term,” see Dissent at 13 & n.13, but Mathis says this is just one of several ways the
means/elements inquiry might be settled, see 136 S. Ct. at 2256-57. In Mathis itself, the
Court took a different route and relied on a state supreme court decision holding the
statutory alternatives were means. See 136 S. Ct. at 2256. We do not rely on an
“umbrella term” for our analysis.

                                             -16-
we must be “certain” the prior conviction “necessarily” qualifies under the ACCA to

apply the enhancement).

                                      *   *    *   *

       In sum, the Supreme Court’s decisions instruct courts to decide first whether an

alternatively phrased statute is comprised of elements or means and then, if the former,

use the modified categorical approach to identify the relevant elements before applying

the categorical approach.

                                       C. Analysis

       We begin with Mathis’s impact on our conclusion in Hood that § 1289.16 is

subject to the modified categorical approach. We conclude that we erred in Hood

because § 1289.16 lists alternative means, not alternative elements. That conclusion

compels us to use only the categorical approach and not use the modified categorical

approach. Doing so, we find § 1289.16 is not categorically a violent felony. Although

Hood failed to consider the means/elements distinction, Hood’s conclusion that

§ 1289.16 can be violated in non-violent ways survives Mathis. Under the categorical

approach, therefore, § 1289.16 is not an ACCA violent felony. Because his § 1289.16

conviction does not count, Mr. Tittle does not have three qualifying offenses to warrant

an ACCA enhancement. His sentence, therefore, is illegal.

1. The Effect of Mathis

       Mr. Tittle acknowledges that Hood determined the modified categorical approach

applies to § 1289.16, but he argues that Mathis “requires reexamination of that
                                           -17-
conclusion” because Hood did not consider whether § 1289.16’s alternative phrases are

means or elements. Aplt. Br. at 13. Mr. Tittle contends § 1289.16 lists alternative means

and that we must vacate his sentence because Mathis is intervening, contrary Supreme

Court authority relative to Hood. See United States v. Brooks, 751 F.3d 1204, 1209

(10th Cir. 2014) (explaining we are not bound by past panel decisions “when the

Supreme Court issues an intervening decision that is contrary to or invalidates our

previous analysis” (quotations omitted)). The Government contends “the rationale of

Mathis does not plainly abrogate Hood.” Aplee. Br. at 39.

       We agree with Mr. Tittle. Hood bypassed the means/elements question and

applied the modified categorical approach. But Mathis shows we erred in Hood to the

extent we failed to consider whether § 1289.16’s disjunctive phrases are means or

elements. The Supreme Court requires us to begin the analysis where Mathis does—at

the means/elements inquiry. See Mathis, 136 S. Ct. at 2256 (describing the

means/elements issue as the “threshold inquiry” and a court’s “first task”).12


       12
          When Hood was decided, Tenth Circuit law held the modified categorical
approach applied regardless of whether a statute’s alternatives were elements or means.
See Trent, 767 F.3d at 1058-61. Trent understood the Supreme Court’s discussion of
“elements” in earlier cases to refer not to the “traditional view of what an element is” but
rather to a broader meaning. Id. at 1059. In Mathis, the Supreme Court embraced the
traditional view of elements and specifically abrogated Trent. See 136 S. Ct. at 2251 n.1,
2254.
        The Government attempts to defend Hood’s use of the modified categorical
approach by arguing that an “Alternative Analysis” section of Trent survived Mathis.
But whether Trent’s alternative analysis survives is irrelevant here. What matters is the
Supreme Court’s holding in Mathis that “[t]he first task” is “to determine whether [the
                                                                               Continued . . .
                                            -18-
2. Okla. Stat. tit. 21 § 1289.16 Is Not Divisible

       Mr. Tittle argues the text of § 1289.16 and state law are consistent with and

arguably supportive of his view that the alternative statutory phrases in § 1289.16 are

means, but he bases his argument primarily on the record materials, specifically the

charging document from his 1996 conviction.

       The Government’s brief does not take a clear position on whether the alternative

phrases in § 1289.16 are means or elements. Instead, the Government argues Mr. Tittle’s

conviction qualifies under the ACCA regardless of whether the categorical or modified

categorical approach is used and that we need not address whether the alternatives are

means or elements. Pressed at oral argument, the Government agreed with Mr. Tittle that

the statutory phrases “probably are means.” Oral Arg. at 27:54-57. The Government

bases that conclusion on how § 1289.16 offenses are alleged—charging documents tend

to include more than one of the alternative statutory phrases. Id. at 30:16-31:09.13 As we

show below, that is true of Mr. Tittle’s charging document.

       Using the three tools the Supreme Court identified in Mathis, we conclude

§ 1289.16 lists alternative means and is thus not a divisible statute.

       First, we agree with the parties that the text of § 1289.16 does not answer the
______________________________________
Cont.

statute’s] listed items are elements or means.” Id. at 2256. Hood did not undertake that
task, but we do in this opinion.
       13
            This was true of the charging document in Hood. See 774 F.3d at 646.

                                             -19-
means/elements question on its own. The statute contains disjunctive phrases. At issue

here are the terms listed after the words “for the purpose of.” With that in mind,

§ 1289.16 provides in relevant part:

       It shall be unlawful for any person to willfully or without lawful cause
       point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or
       not, at any person or persons for the purpose of threatening or with the
       intention of discharging the firearm or with any malice or for any purpose
       of injuring, either through physical injury or mental or emotional
       intimidation, or for purposes of whimsy, humor or prank . . . .

Okla. Stat. tit. 21 § 1289.16 (1995) (emphasis added). The phrases are plainly

alternatives, but it is not clear whether they 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.14

       Second, the Oklahoma Court of Criminal Appeals (“OCCA”) has not specifically

decided the divisibility question. But Oklahoma case law at least suggests § 1289.16 lists

alternative means to satisfy a single purpose element. In Thompson v. State, 169 P.3d

1198 (Okla. Crim. App. 2007), the court explained, “The language of § 1289.16 makes

clear that this crime is about the act of pointing a firearm at another person or persons

with some kind of improper purpose.” Id. at 1202 (second emphasis added). The court

       14
          We limit our discussion to the alternative phrases addressing purpose because
they are the source of the parties’ dispute and because resolution of this case requires us
to go no further. We conclude the purpose phrases are alternative means. Because at
least one of these means is non-violent under the ACCA, § 1289.16 can be violated
without committing an ACCA violent felony. We therefore need not consider whether
the other disjunctive phrases in the statute would similarly show that § 1289.16 is not
categorically a violent felony.

                                            -20-
described “this crime” in the singular, not different crimes comprised of different

elements, and the court appeared, by using the words “some kind,” to lump together all of

the alternative phrases into a single improper purpose element.

       Additional support comes from Wade v. State, 624 P.2d 86 (Okla. Crim. App.

1981), in which the OCCA said, “Section 1289.16 requires that the act be done with at

least one of several specified intents or purposes, including to threaten, or to injure by

mental or emotional intimidation.” Id. at 89 (emphasis added). The court’s listing of

some, but not all, of the purpose alternatives suggests they are illustrative examples

satisfying the statute’s purpose requirement. See Mathis, 136 S. Ct. at 2256 (“[I]f a

statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s

means of commission.”).

       Oklahoma’s Uniform Jury Instructions provide an additional source of state law

guidance.15 The relevant instruction provides:

       No person may be convicted of pointing a firearm unless the State has
       proved beyond a reasonable doubt each element of the crime. These
       elements are:

       15
          In cases like Mr. Tittle’s where the defendant pled guilty and no jury
instructions were given, the state’s uniform jury instructions can provide insight into the
means/elements question. See, e.g., United States v. Harris, 844 F.3d 1260, 1266 n.2
(10th Cir. 2017) (consulting Colorado jury instructions to conclude statute was
indivisible); Gardner, 823 F.3d at 802-03 (consulting North Carolina pattern instructions
to conclude offense was indivisible); United States v. Hamilton, __ F. Supp. 3d __, No.
06-CR-188-TCK, 2017 WL 368512, at *10 (N.D. Okla. Jan. 25, 2017) (consulting
Oklahoma Uniform Jury Instructions in means/elements analysis); United States v.
Bouziden, No. CR-08-251-02-C, 2017 WL 149988, at *2 (W.D. Okla. Jan. 13, 2017)
(same), appeal filed, No. 17-6031 (10th Cir. Jan. 31, 2017).

                                              -21-
       First, willfully;

       Second, pointing a shotgun/rifle/pistol/(deadly weapon), whether loaded
       or unloaded;

       Third, at any person(s);

       Fourth, without lawful cause;

       Fifth, (for the purpose of threatening)/(with the intention of discharging
       the firearm)/(with any malice)/(for any purpose of injuring, either
       through physical injury or mental or emotional intimidation)/(for
       purposes of whimsy/humor/[a prank]/(in anger or otherwise).16

Okla. Unif. Jury Instr. CR 6-42 (alterations in original). 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.

       On their own, none of these state law sources conclusively resolves the

means/elements question, but together they all but establish that § 1289.16’s purpose

alternatives are means. We need not rest our conclusion only on these state law sources

because Mathis’s third tool settles the issue.

       Third, the record documents confirm that § 1289.16’s alternative purpose phrases

are means.17 The charging instrument in Mr. Tittle’s § 1289.16 case alleged:



       16
       The “in anger or otherwise” alternatives were added in a September 1995
amendment to the statute. See supra note 2.
       17
        Recall that this “peek” at the documents does not constitute application of the
modified categorical approach. It merely helps answer the means/elements question,
                                                                           Continued . . .
                                             -22-
       That the said DAMION TYRONE TITTLE did wilfully [sic], feloniously
       and without lawful cause point a .380 caliber pistol . . . at [the victim], for
       the purpose of threatening and intimidating her, and with the unlawful,
       malicious and felonious intent then and there on the part of said defendant
       to injure the said [victim] physically, or for the purpose of mental or
       emotional intimidation, or whimsey [sic], humor or prank,

       ....

       contrary to the form of the statute in such case made and provided and
       against the peace and dignity of the State.

App., Vol. 1 at 78. The presence of several of the statutory purpose alternatives in the

charging document is significant. Mathis explained that when a charging document

reiterates the alternatives from the statute, “[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.” 136 S. Ct. at 2257.18

       Based on the foregoing analysis of the Mathis tools, we conclude the alternative

statutory phrases in § 1289.16 are means, not elements. Accordingly, § 1289.16 is not a
______________________________________
Cont.

which in turn answers whether the modified categorical approach should be used at all.
See Mathis, 136 S. Ct. at 2256-57; see also supra note 10.
       18
          As the dissent sees it, a prosecutor hoping to maximize the state’s chances of
winning a conviction might be expected to charge multiple statutory alternatives if each
one is merely a means of committing the crime. See Dissent at 10-12. Regardless of
what may have motivated the prosecutor in this case, Oklahoma clearly did charge
multiple alternatives. We consider this significant because the dissent is right that
“Mathis tells us to pay attention to whether the State has charged more than one
alternative.” Id. at 10. Indeed, Mathis states this “is as clear an indication as any that
each alternative is only a possible means of commission, not an element.” 136 S. Ct.
at 2257.

                                              -23-
divisible statute. Our conclusion in Hood that § 1289.16 is subject to the modified

categorical approach must yield to Mathis’s rule that if a statute’s alternatives are means,

then “the court has no call to decide which of the statutory alternatives was at issue in the

earlier prosecution” by using the modified categorical approach. Id. at 2256. Because

§ 1289.16 is indivisible, we apply the categorical approach.19


       19
          The Government argues that even if the district court erred in applying the
modified categorical approach, it did not plainly err when it reasonably relied on Hood.
We reject this argument because, as already discussed, an illegal sentence “trigger[s] per
se, reversible, plain error.” Gonzalez-Huerta, 403 F.3d at 739 n.10.
        And in any event, the Government’s plain error arguments miss the mark. The
district court’s reasonable reliance on Hood is beside the point. When the law changes on
appeal, “it is enough that an error be ‘plain’ at the time of appellate consideration.”
Johnson v. United States, 520 U.S. 461, 468 (1997); see also United States v. Madrid,
805 F.3d 1204, 1212 (10th Cir. 2015) (explaining an error is plain “when case law alters
the legal analysis between the time of trial and the time of appeal”); Morales-Fernandez
v. INS, 418 F.3d 1116, 1123-24 (10th Cir. 2005) (holding the district court plainly erred
under a new Supreme Court decision handed down while the case was pending on
appeal). Mathis makes plain that the means/elements inquiry is the “threshold inquiry,”
136 S. Ct. at 2256, and Hood did not take that step.
        The Government also contends that, even though § 1289.16’s alternatives
“probably are means,” the statutory phrases may not plainly be means because the OCCA
has not definitively answered the means/elements question. Oral Arg. at 27:54-28:22; see
also Aplee. Br. at 37. But 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. See 136 S. Ct. at 2256-57 (instructing federal courts to examine record
documents “if state law fails to provide clear answers”). More generally, the
Government’s argument overstates the importance of having an on-point decision to
satisfy the plain error standard. See Madrid, 805 F.3d at 1212 n.10 (“[A]n error may be
plain even if . . . there are no . . . cases that have directly opined on the question. Indeed,
even if there is a split among our sister circuits . . . that would not necessarily prevent us
from concluding that . . . [there] was clear or obvious error.” (alterations in original)
(quotations omitted)). Further, the Government’s point about uncertainty favors Mr.
Tittle because the Government bears the burden of proving a prior conviction qualifies
under the ACCA, see Delossantos, 680 F.3d at 1219, and we do not count a prior
                                                                                  Continued . . .
                                              -24-
3. Applying the Categorical Approach

       We conclude that a conviction under § 1289.16 does not qualify as an ACCA

offense because the statute’s elements can be satisfied without “the use, attempted use, or

threatened use of physical force against the person of another.” 18 U.S.C.

§ 924(e)(2)(B)(i). We decided this question in Hood. 774 F.3d at 646. Hood, although

mistakenly using the word “elements” when it should have said “means,” concluded that

the “statute contains some alternative elements [i.e., ‘means’] that would not require a

threatened use of physical force.” Id. Mathis does not affect Hood’s conclusion that

§ 1289.16 can be violated in non-violent ways. Hood correctly determined that

§ 1289.16, viewed as a whole, does not always “require a threatened use of physical

force.” Id.; see also Johnson, 559 U.S. at 140 (defining “physical force” in the ACCA as

“violent force—that is, force capable of causing physical pain or injury to another

person”). Hood arrived at this conclusion through its consideration of § 1289.16’s

purpose alternatives, which were the focus of (1) the parties’ briefs20 and (2) Hood’s


______________________________________
Cont.

conviction if its ACCA qualification is suspect, Mathis, 136 S. Ct. at 2257 (discussing
“Taylor’s demand for certainty”).
        In sum, the district court erred, though understandably so in light of Hood, by
applying the modified categorical approach to this indivisible statute. The Government’s
efforts to use the plain error standard to insulate that error are unavailing.
       20
       See Brief for Appellant at 46-47, Hood, 774 F.3d 638 (No. 13-6182), 2013 WL
6910087, at *46-47; Brief for Appellee at 46, Hood, 774 F.3d 638 (No. 13-6182), 2014
WL 1400517, at *46.

                                            -25-
analysis of the charging document when the court applied the modified categorical

approach. 774 F.3d at 646.

       Hood’s holding that some of the purpose alternatives “would not require a

threatened use of physical force” is enough, under the categorical approach, to disqualify

§ 1289.16 convictions as predicates for an ACCA sentence. Id. Our own examination of

the statute leads us to agree. Indeed, as the government conceded in Hood, the “whimsy,

humor or prank” alternatives are non-violent. See Brief for Appellee at 46, Hood, 774

F.3d 638 (No. 13-6182), 2014 WL 1400517, at *46. Because § 1289.16 can be violated

without the “use, attempted use, or threatened use of physical force,” 18 U.S.C.

§ 924(e)(2)(B)(i), it is not categorically a violent felony. Hood’s conclusion to that effect

ends our inquiry. The Government’s contrary arguments are unpersuasive.

4. Government’s Arguments

       First, the Government argues we should disregard as dictum our language from

Hood that § 1289.16 can be violated in non-violent ways. We disagree. “[D]icta are

statements and comments in an opinion concerning some rule of law or legal proposition

not necessarily involved nor essential to determination of the case at hand.” In re Tuttle,

291 F.3d 1238, 1242 (10th Cir. 2002) (quotations omitted). “[A] panel of this Court is

bound by a holding of a prior panel of this Court but is not bound by a prior panel’s

dicta.” Bates v. Dep’t of Corr., 81 F.3d 1008, 1011 (10th Cir. 1996). Our determination

in Hood that a person could violate § 1289.16 in both violent and non-violent ways was

essential to our analysis. That conclusion preceded our application of the modified
                                            -26-
categorical approach, and we made clear our resort to the record documents was based on

that determination. 774 F.3d at 646 (“Since this statute contains some alternative

elements that would not require a threatened use of physical force, the modified

categorical approach requires that we look to additional charging documents to determine

the specific crime to which Hood pleaded guilty.” (emphasis added)). Our decision that

§ 1289.16 was not categorically a violent felony was thus critical to our judgment in

Hood.

        Second, the Government argues that Hood left open § 1289.16’s status under the

categorical approach because we relied on the parties’ agreement that the modified

categorical approach was appropriate. But we did not decide that § 1289.16 failed the

categorical approach just because the parties said so. We explained: “[B]oth parties

believe that a modified categorical approach applies, and we agree.” Id. at 645

(emphasis added); see also id. (“When a statute of conviction contains alternative

elements—some of which do not require the threatened use of physical force—we use a

modified categorical approach . . . .”).

        Third, the Government argues Mr. Tittle’s conviction should count as an ACCA

predicate because § 1289.16 is categorically a crime of violence. In Hood, the

Government argued the opposite position. See Brief for Appellee at 46, 2014 WL

1400517, at *46 (conceding some alternatives are non-violent).

        The Government contends our pre-Hood decision in United States v. Ramon Silva,

608 F.3d 663 (10th Cir. 2010), supports its new position. We disagree. Ramon Silva
                                           -27-
does not stand for the proposition that pointing a gun at a person inherently involves the

threatened use of violent physical force, such that § 1289.16 must categorically be a

violent felony.

       Ramon Silva considered New Mexico’s crime of “‘apprehension causing’

aggravated assault” under N.M. Stat. § 30-3-2(A). Id. at 669. We held the crime

qualified under the ACCA because state court decisions interpreting the offense required

“proof that [the] defendant threatened or engaged in menacing conduct with a deadly

weapon toward a victim, causing the victim to believe he or she was about to be in danger

of receiving an immediate battery.” Id. at 670 (alteration in original) (quoting State v.

Bachicha, 808 P.2d 51, 54 (N.M. 1991)). Convictions under the New Mexico statute also

required proof the defendant acted purposefully or engaged in conscious wrongdoing. Id.

at 673 (citing State v. Campos, 921 P.2d 1266, 1277 n.5 (N.M. 1996)). We rejected the

defendant’s argument that the crime needed a specific intent element “to assault, injure or

frighten” the victim. Id. at 672. It was enough that the proscribed conduct

“communicates to [the] victim that [the offender] will potentially use ‘violent force’

against the victim in the near-future” and “always has the potential to lead to ‘violent

force.’” Id. at 670-71.

       Ramon Silva is not instructive here. The New Mexico statute required

“threatening” or “menacing” conduct done purposefully or with conscious wrongdoing

that actually caused the victim to fear an imminent battery. Section 1289.16 can be

violated by threats of physical injury, but it is far broader, reaching actions taken for
                                             -28-
“purposes of whimsy, humor or prank.” Okla. Stat. tit. 21 § 1289.16 (1995).

       As part of its argument that § 1289.16 should be considered a categorically violent

felony, the Government reminds us that Moncrieffe v. Holder, 133 S. Ct. 1678 (2013),

declared that courts applying the categorical approach must “focus on the minimum

conduct criminalized by the state statute” without applying “legal imagination” to

consider hypothetical situations that technically violate the law but have no “realistic

probability” of falling within its application. Id. at 1684-85 (quotations omitted).21 It

contends Mr. Tittle cannot prevail because he has not supplied “any case in which

Oklahoma has prosecuted someone under § 1289.16 for pointing a firearm in obvious

jest.” Aplee. Br. at 27 n.7 (quotations omitted). Again, we disagree.

       This is not a case where we need to imagine hypothetical non-violent facts to take

a statute outside the ACCA’s ambit. Section 1289.16 reaches conduct undertaken for

purposes of “whimsy, humor or prank” because the statute specifically says so. The

Government gives no persuasive reason why we should ignore this plain language to

pretend the statute is narrower than it is. It cites United States v. Castillo, 811 F.3d 342

(10th Cir. 2015), and, in a Rule 28(j) letter,22 United States v. Harris, 844 F.3d 1260


       21
         Moncrieffe and the case it relied on, Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007), arose in the immigration context, but we have applied the “realistic
probability” test in ACCA cases. See Harris, 844 F.3d at 1264; United States v.
Cummings, 531 F.3d 1232, 1234 (10th Cir. 2008).
       22
            See Fed. R. App. P. 28(j).


                                             -29-
(10th Cir. 2017). But both cases found that crimes under the statutes at issue

categorically qualified for sentence enhancements. Castillo, 811 F.3d at 349; Harris, 844

F.3d at 1270. Here, no legal imagination is required to see that the threatened use of

physical force is not necessary for a conviction under § 1289.16. Where, as here, the

statute lists means to commit a crime that would render the crime non-violent under the

ACCA’s force clause, any conviction under the statute does not count as an ACCA

violent felony.

       Mathis is instructive. The Court did not apply—or even mention—the “realistic

probability” test. It found (1) the statute at issue listed alternative means and (2) some of

those means did not satisfy the ACCA’s generic burglary definition. 136 S. Ct. at 2250.

The Court concluded, “Under our precedents, that undisputed disparity resolves this

case.” Id. at 2251. The Court did not seek or require instances of actual prosecutions for

the means that did not satisfy the ACCA. The disparity between the statute and the

ACCA was enough.23


       23
          Persuasive case law from other circuits is against the Government as well. See
Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017) (“[The] sensible caution against crediting
speculative assertions regarding the potentially sweeping scope of ambiguous state law
crimes has no relevance to a case like this. The state crime at issue clearly does apply
more broadly than the federally defined offense.”); Ramos v. U.S. Att’y Gen., 709 F.3d
1066, 1072 (11th Cir. 2013) (“The statute’s language . . . creates the ‘realistic probability’
that [the state] will punish crimes that do qualify . . . and crimes that do not.”); Jean-
Louis v. Att’y Gen., 582 F.3d 462, 481 (3d Cir. 2009) (“[N]o application of ‘legal
imagination’ to the Pennsylvania simple assault statute is necessary. The elements of [the
crime] are clear . . . .”); United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en
banc) (“Where . . . a state statute explicitly defines a crime more broadly than the generic
                                                                                 Continued . . .
                                             -30-
                                        *    *   *    *

       As Hood recognized, § 1289.16 does not necessarily require “the use, attempted

use, or threatened use of physical force against the person of another.” 18 U.S.C.

§ 924(e)(2)(B)(i); see Hood, 774 F.3d at 646. Section 1289.16 is therefore not

categorically a violent felony.

5. Mr. Tittle’s Sentence Is Illegal

        Mr. Tittle received an illegal, over-maximum sentence. Section 1289.16 is not

categorically a violent felony under the ACCA. It “swe[eps] more broadly” than the

ACCA definition, and, under the categorical approach, no conviction for an overbroad

statute can count as an ACCA predicate. Mathis, 136 S. Ct. at 2248-49. Because Mr.

Tittle’s § 1289.16 conviction does not qualify as an ACCA “violent felony,” he lacks the

three convictions required to trigger the ACCA enhancement. Without the enhancement,

the maximum sentence for Mr. Tittle’s offense is 120 months, see 18 U.S.C. § 924(a)(2),

which means his sentence of 188 months is illegal. See Gonzalez-Huerta, 403 F.3d at

739 n.10 (explaining that a sentence is illegal “where the term of incarceration exceeds
______________________________________
Cont.

definition, no ‘legal imagination’ is required to hold that a realistic probability exists that
the state will apply its statute to conduct that falls outside the generic definition of the
crime. The state statute’s greater breadth is evident from its text.” (citation omitted));
accord United States v. Aparicio-Soria, 740 F.3d 152, 158 (4th Cir. 2014) (en banc)
(“We do not need to hypothesize about whether there is a ‘realistic probability’ that
Maryland prosecutors will charge defendants engaged in non-violent offensive physical
contact with resisting arrest; we know that they can because the state’s highest court has
said so.” (emphasis added)).

                                             -31-
the statutory maximum”).

       Mr. Tittle is entitled to resentencing even under a plain error standard because

illegal sentences “trigger per se, reversible, plain error.” Id.; see also United States v.

Catrell, 774 F.3d 666, 669 (10th Cir. 2014) (applying per se plain error rule and

remanding for correction of illegal sentence); cf. United States v. Shipp, 589 F.3d 1084,

1091 (10th Cir. 2009) (holding improper application of ACCA sentence violated due

process and “inherently result[ed] in a complete miscarriage of justice”).

                                    III. CONCLUSION

       We vacate Mr. Tittle’s sentence and remand for resentencing in conformity with

the relevant statutory maximum of 120 months. See 18 U.S.C. § 924(a)(2).24




       24
         In light of our disposition, we do not address Mr. Tittle’s argument that his
sentence violates due process.

                                             -32-
15-6236, United States v. Tittle

PHILLIPS, Circuit Judge, dissenting.

       Though I agree with most of the majority’s well-crafted opinion, I disagree with

its conclusion that Mr. Tittle’s Oklahoma statute of conviction provides means, rather

than elements, for its alternative purposes and intents. Because of this view, I would

apply the modified categorical approach as set out in United States v. Hood, 774 F.3d 638

(10th Cir. 2014), find that Mr. Tittle’s plea documents show that he was necessarily

convicted of a predicate “violent felony,” and affirm the district court’s sentence.

                                     BACKGROUND

       In 2015, Mr. Tittle pleaded guilty to a Superseding Information charging a single

violation of 18 U.S.C. § 922(g)(1).1 Though facing a sentence under the Armed Career

Criminal Act (the ACCA), 18 U.S.C. § 924(e), Mr. Tittle elected to plead guilty to the

Superseding Information’s sole charge. Doing so kept Mr. Tittle from a much higher

sentence had the jury convicted him on the methamphetamine charge. At sentencing, Mr.

Tittle objected to his recommended sentence, contending that his Oklahoma conviction

for feloniously pointing a firearm at another person did not qualify as a predicate violent

felony under the ACCA.

       In 1995, the State of Oklahoma charged Mr. Tittle with “willfully, feloniously and

without lawful cause point[ing] a .380 caliber pistol, serial number 031625 at one


       1
         In exchange, the government abandoned its Superseding Indictment charging
possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A), and four counts of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1).
Carolyn Williams, for the purpose of threatening and intimidating her, and with the

unlawful, malicious and felonious intent then and there on the part of said defendant to

injure the said Carolyn Williams physically, or for the purpose of mental or emotional

intimidation, or whimsey [sic], humor, or prank[.]” App., Vol.1 at 78. In his written

“Summary of Facts” in support of his guilty plea to this charge, Mr. Tittle wrote, “I was

struck in the head with a skillet by Carolyn Ann Williams and then I turned and pointed a

.380 pistol in [stricken word] direction unknown.” App., Vol. 1 at 94. Mr. Tittle ran a line

through this portion of his written statement. In unstricken language, Mr. Tittle

continued, “I pointed a weapon at Carolyn A Williams and threatned [sic] her crazy2 life

DTT.” Id.

                                        DISCUSSION

1.     Elements or Means?

       Now the question is whether Mr. Tittle’s Oklahoma conviction for feloniously

pointing a pistol at Ms. Williams qualifies as a violent felony under the ACCA. It does so

if it has “as an element the use, attempted use, or threatened use of physical force against

the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The majority rules that the purpose

and intent alternatives listed in Okla. Stat. tit. 21 § 1289.16 are means of committing the

crime, not elements. This, the majority concludes, requires it to apply the categorical

approach and go no further. Then, under the categorical approach, the majority declares

that the Oklahoma crime doesn’t qualify as a predicate violent felony because one of the



       2
           The word crazy was stricken from the sentence but is legible.
                                              2
means—whimsy, humor, or prank—does not involve the threatened use of violent

physical force. Majority Op. at 14.

       The main issue before us is whether Hood remains good law. As the majority

notes, we declared in Hood that the purpose and intent alternatives in Okla. Stat. tit. 21, §

1289.16 are elements, freeing us to apply the modified categorical approach. Hood, 774

F.3d at 645. Mr. Tittle argues that Mathis v. United States, 136 S. Ct. 2243 (2016), has

abrogated Hood, rendering the alternatives listed in § 1289.16 as means rather than

elements. If that’s so, we cannot apply the modified categorical approach to resolve

whether Mr. Tittle was necessarily convicted of an alternative requiring a purpose other

than whimsy, humor, or prank.

       In Mathis, the Court added another level atop its framework used to determine

what convictions count as predicate violent felonies under the ACCA—whether the

statute of conviction lists alternative means or alternative elements. Hood had no need to

consider that question. See United States v. Trent, 767 F.3d 1046, 1058-61 (10th Cir.

2014) (abrogated by Mathis, 136 S. Ct. 2243, 2251 n.1) (holding that modified

categorical approach applied whether a statute’s alternatives were either elements or

means). In determining where § 1289.16 stands after Mathis, it helps to examine that

statute’s language in place when Mr. Tittle committed the crime. I have marked the

purpose and intent alternatives with my own brackets and numbers separating them:

       It shall be unlawful for any person to willfully or without lawful cause
       point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or
       not, at any person or persons [1] for the purpose of threatening or [2] with
       the intention of discharging the firearm or [3] with any malice or [4] for any


                                              3
       purpose of injuring, either through physical injury or mental or emotional
       intimidation, or [5] for purposes of whimsy, humor or prank . . . .

Okla. Stat. tit. 21 § 1289.16 (1995). In his written plea statement, Mr. Tittle admitted the

first alternative—pointing a gun at Carolyn Williams and threatening to kill her. We must

decide whether the purpose and intent alternatives are means under Mathis, compelling

the categorical approach and cordoning from the ACCA’s reach Mr. Tittle’s violent

felony that his own admission proves he necessarily committed.3

2.     Mathis and Shepard

       In Mathis, the Court considered whether a conviction of this Iowa burglary statute

qualified as a violent felony under the ACCA:

       Any person, having the intent to commit a felony, assault or theft therein,
       who, having no right, license or privilege to do so, enters an occupied
       structure, such occupied structure not being open to the public, or who
       remains therein after it is closed to the public or after the person’s right,
       license or privilege to be there has expired, or any person having such
       intent who breaks an occupied structure, commits burglary.

Iowa Code § 713.1. A separate section of the Iowa statutes defines “occupied structure”

as follows:

       An “occupied structure” is any building, structure, appurtenances to
       buildings and structures, land, water or air vehicle, or similar place adapted
       for overnight accommodation of persons, or occupied by persons for the
       purpose of carrying on business or other activity therein, or for the storage
       or safekeeping of anything of value. Such a structure is an “occupied

       3
         In Taylor v. United States, 495 U.S. 575, 602 (1990), the Court allowed the
modified categorical approach “in a narrow range of cases where a jury was actually
required to find all the elements of generic burglary.” In other words, the elements-based
test ensured that a defendant had necessarily been convicted of a violent felony as defined
in the ACCA. Mathis goes past that useful mechanism, disallowing violent-felony
convictions even when a single qualifying means is charged. See 136 S. Ct. at 2259, 2266
(Breyer, J. dissenting).
                                              4
       structure” whether or not a person is actually present. However, for
       purposes of chapter 713, a box, chest, safe, changer, or other object or
       device which is adapted or used for the deposit or storage of anything of
       value but which is too small or not designed to allow a person to physically
       enter or occupy it is not an “occupied structure”.

Id. § 702.12.

       Because occupied structures such as “land, water or air vehicles” are not buildings

or structures, they do not meet the location element of generic burglary as referenced in

Taylor v. United States, 495 U.S. 575, 599 (1990) (concluding that generic burglary has

an element of “unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime”). As does Iowa Code § 713.1, the Massachusetts

statute exceeds generic burglary, covering unlawful entries into more locations than

buildings and structures, that is, into a “vessel or vehicle.” Shepard v. United States, 544

U.S. 13, 31 (2005).

       In Shepard, because the government had no charging or plea documents that

necessarily proved Shepard had been convicted of unlawful entry into a building or

structure, the government attempted to show this with documents beyond those allowed

in Taylor, 495 U.S. 575. Id. at 16. For instance, the government wanted to use police

reports and complaint applications to make that showing. Id. The Court refused to extend

Taylor to include these sorts of records. Id. at 26.

       I note this language from Shepard: “In this particular pleaded case, the record is

silent on the generic element, there being no plea agreement or recorded colloquy in

which Shepard admitted the generic fact.” Id. at 25 (emphasis added). From this, we can


                                              5
see that the Shepard Court treated buildings, structures, vehicles, and vessels as separate

elements. That leaves us two questions: (1) did Shepard survive Mathis?, and (2) if it did,

is Okla. Stat. tit. 21 § 1289.16 more like the Massachusetts breaking-and-entering statute

in Shepard, or more like the Iowa burglary statute in Mathis?

       For the first question, I note that Mr. Tittle does not contest that Shepard survived

Mathis. This makes sense because Mathis neither claims to overrule Shepard nor casts

doubt upon it. In fact, as I read Mathis, it approves of Shepard’s use of the modified

categorical approach, because that approach is “for use with statutes having multiple

alternative elements.” Mathis, 136 S. Ct. at 2249 (emphasis added) (citing Shepard, 544

U.S. at 26). And the Court’s language was no accident. In contrasting the Iowa burglary

statute to the Massachusetts statute, Mathis declared that “[t]his case [Mathis] concerns a

different kind of alternatively phrased law: not one that lists multiple elements

disjunctively, but instead one that enumerates various factual means of committing a

single element.” Id. (citing Schad v. Arizona, 501 U.S. 624, 636 (1991)).4




       4
         In Schad, a 5-4 decision, the Court affirmed a first-degree murder conviction
even though the jury instructions did not require the jurors to agree “whether the
defendant was guilty of premeditated murder or felony murder.” 501 U.S. at 627. The
Court rejected the dissent’s view that the jury must say what separate statutory means of
committing a crime it relied upon to find guilt. Id. at 635-37. The Court reasoned that
statutory alternatives are not always “independent elements defining independent crimes
under state law.” Id. at 636. The Court looked to whether a State court had determined
“that certain statutory alternatives are mere means of committing a single offense, rather
than independent elements of the crime.” Id. Thus, 13 years before Shepard, the Court
had fully addressed the elements/means question. That it saw no need to apply this test in
Shepard further supports the view that Shepard’s finding of elements remains good law.

                                             6
       Addressing the second question, I conclude that Oklahoma’s statute is more like

Massachusetts’s statute, not Iowa’s. Neither the Massachusetts statute nor the Oklahoma

statute contains a broad statutory element with separately listed statutory examples, as

does the Iowa statute with “occupied structures.” And, as seen below, Mathis itself

recognized the importance of this distinction.

3.     The Mathis Tools

       In Mathis, the Court set out a framework to determine whether statutory

alternatives are elements, or instead means. The framework breaks broadly into two

general categories—state-law sources and non-state-law sources. Each has subparts to

use in resolving the elements/means issue.

       a.     State-Law Sources

       The first Mathis tool asks whether the courts of the State of conviction have

determined that the statutory alternatives in question are means or elements. In Mathis,

beating the odds, the Court found an Iowa Supreme Court case holding that the statutorily

listed burglary locations are means of committing the crime.5 Id. at 2256 (citing State v.

Duncan, 312 N.W.2d 519, 523 (Iowa 1981)). In particular, the Iowa court held that the

statutorily defined list of “occupied structures” are “‘alternative method[s]’ of

committing one offense, so that a jury need not agree whether the burgled location was a


       5
         The Mathis dissent notes that “there are very few States where one can find
authoritative judicial opinions that decide the means/element question.” 136 S. Ct. at
2264 (Breyer, J. dissenting). In fact, addressing the question in Mathis, the government
found just two States whose courts had answered the elements/means question for their
burglary statutes. Id.

                                             7
building, other structure, or vehicle.” Id. (quoting Duncan, 312 N.W.2d at 523). This

meant that the jury could convict Duncan of a single burglary charge even if the jurors

disagreed about whether he had burgled the marina or, instead, a boat.6 See Iowa Code

§ 702.12. So Mathis had its answer at the start of its analysis—its conclusion was “easy”

because “a state court decision definitively answer[ed] the question.” 136 S. Ct. at 2256

(citing Duncan, 312 N.W.2d at 523).

       Addressing this same first tool, the majority acknowledges that Oklahoma courts

have not spoken so plainly. Even so, the majority cites Thompson v. State, 169 P.3d 1198

(Okla. Crim. App. 2007), for support that Oklahoma might lean toward finding the

alternatives to be means and not elements. In particular, the majority relies on this

sentence from Thompson: “The language of § 1289.16 makes clear that this crime is

about the act of pointing a firearm at another person or persons with some kind of

improper purpose.” Majority Op. at 20 (quoting 169 P.3d at 1202). I don’t see how the

reference to “this crime” means much. I’d expect that a court would use those words any

time it refers to a single criminal statute. Nor do I see how the reference to “some kind of

improper purpose” suggests means instead of elements. After all, a court applying

Shepard’s breaking-and-entering statute could just as easily have described the statutorily

listed burglary places as “some kind of specified location.”




       6
         In Duncan, the Iowa court’s tolerance for lack of jury unanimity exceeded that at
issue in Schad. In Duncan, the court permitted the jury to convict a defendant of “one
overall burglary” even if jurors split over whether the defendant had burgled a marina or
instead a boat in the dock, two different events. 312 N.W.2d at 520, 523-24.
                                             8
       The second Mathis tool asks what the state statute’s text reveals on the

elements/means question. Mathis, 136 S. Ct. at 2256. If the statute punishes statutory

alternatives differently, that shows elements. Id. But if the statute’s alternatives are

“illustrative examples,” that shows means. Id. (citing United States v. Howard, 742 F.3d

1334, 1348 (11th Cir. 2014)). And, finally, if the statute dictates what the prosecutor must

charge, that may answer the elements/means question. Id. (citing Cal. Penal Code Ann.

§ 952).7

       To support its view that the Oklahoma statute’s alternatives are “illustrative

examples,” and thus means, the majority relies in part on this sentence from Wade v.

State, 624 P.2d 86, 89 (Okla. Crim. App. 1981): “Section 1289.16 requires that the act be

done with at least one of several specified intents or purposes, including to threaten, or to

injure by mental or emotional intimidation.” Majority Op. at 20. From this, the majority

reasons that listing some purpose or intent alternatives “suggests they are illustrative

examples satisfying the statute’s purpose requirement.” Id. at 20-21 (citing Mathis, 136 S.

Ct. at 2256). I disagree. The quoted language doesn’t rule out either elements or means. If

the alternatives are elements, the prosecution can charge one alternative or more. If the

prosecutor charges multiple alternatives, the verdict form will simply have to ensure that

the jury unanimously finds the individual alternatives (however many) beyond a

reasonable doubt. I’d expect a prosecutor to charge all of the alternatives if they’re


       7
        In part, this California statute requires that charging language must be “in
ordinary and concise language without any technical averments or any allegations of
matter not essential to be proved.” Cal. Penal Code Ann. § 952. Neither party has
directed us to any similar Oklahoma statute.
                                               9
merely means. If individual jurors may pick and choose which alternative is proved, it

seemingly would favor the government to have as many choices as possible.

       b.     Non-State-Law Sources

       The first Mathis tool under the non-state-law category looks to the record of the

earlier conviction—for instance, the charging document and jury instructions. Here,

Mathis declared that a defendant’s charge for burgling a “building, structure, or vehicle”

would be “as clear an indication as any that each alternative is only a possible means of

commission, not an element that the prosecutor must prove beyond a reasonable doubt.”8

136 S. Ct. at 2257. Moreover, the Court said, the same would be true if the state-court

documents “use a single umbrella term like ‘premises.’” Id. Conversely, Mathis noted,

“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.

       Here, as the majority notes, Mr. Tittle’s charging document includes “several of

the statutory purpose alternatives . . . .” Majority Op. at 23. Though Mathis tells us to pay

attention to whether the State has charged more than one alternative, I can’t see how this

charging language should matter so much.9 After all, different prosecutors will charge the


       8
        This approach yields much authority to prosecutors to say what the law is. And,
as we know from other ACCA cases, some prosecutors aren’t precise in their charging
documents, using forms incorporating the entire criminal statute underlying the charge.
       9
          I recognize that when “pressed” at oral argument, the government’s attorney
(after a long pause) agreed with the questioning judge that the Oklahoma statute provides
means and not elements, relying on the charging document’s listing multiple alternatives.
Majority Op. at 19. I remain puzzled by this concession.
                                             10
same crime narrowly or broadly. Here, the prosecutor charged some alternatives, and not

others.10 The prosecutor’s choices limited the State to alternatives it could rely on to

convict. But had Mr. Tittle gone to trial, he could have demanded a special-verdict form

itemizing each charged element (the purpose and intent alternatives), leaving a space for

the jury to mark which, if any, it unanimously found applied beyond a reasonable

doubt.11 In a future case, we might see an Oklahoma prosecutor charge just one of the

alternatives (say, pointing a firearm at a woman and threatening to kill her, as Mr. Tittle

admitted doing). Would we switch positions there to say that the Oklahoma alternatives

suddenly became elements?

       In addition, though Mr. Tittle pleaded guilty, we can still look for guidance to

Oklahoma’s uniform jury instruction, which provides in part as follows: “Fifth, (for the

purpose of threatening)/(with the intention of discharging the firearm)/(with any

malice)/(for any purpose of injuring, either through physical injury or mental or

emotional intimidation)/(for purposes of whimsy/humor/[a prank]/(in anger or




       10
          Again, Mr. Tittle was charged with pointing a weapon at Carolyn Williams “[1]
for the purpose of threatening and intimidating her,” “[2] with the unlawful, malicious
and felonious intent then and there on the part of said defendant to injure the said Carolyn
Williams physically, or [3] for the purpose of mental or emotional intimidation, or [4]
whimsey [sic], humor, or prank.” App., Vol. 1 at 78.
       11
          In Shepard, all five complaints from his Massachusetts burglaries “merely
charged Shepard in the boilerplate language of the statutes, leaving it unclear just what
kind of structure Shepard had entered.” United States v. Shepard, 348 F.3d 308, 309 (1st
Cir. 2003). The two Massachusetts statutes forbade breaking and entering into a building,
ship, vessel, or vehicle, with intent to commit a felony. Id.
                                             11
otherwise).”12 Id. at 21-22 (quoting Okla. Unif. Jury Inst. CR 6-42). From this language

and format, the majority concludes that “[t]he instruction bunches together the statutory

purpose alternatives into a single element.” Id. at 22. It further notes that “[the

instruction] does not suggest the jury would have to agree on a particular alternative to

satisfy the fifth element.” Id.

       I read the uniform instruction differently. If the alternatives are simply means, the

instruction would have no need for the slash marks or parentheses. If the five alternatives

are means, prosecutors might shortchange the State by not charging all of them. To me,

the careful separation of the alternatives suggests that the government may charge one

alternative alone as an element. And in that circumstance, the jury must unanimously

agree that the government has proved that element beyond a reasonable doubt. Had

Oklahoma meant for the five alternatives to be means, I would have expected it to list the

alternatives as an unbroken group.

       In addition, I see elements instead of means for two other reasons. First, the

“whimsy, humor, prank” alternative is mutually exclusive from the others. Under a

sensible reading, Mr. Tittle could not playfully point his gun at Ms. Williams and

kiddingly say, “I’m going to kill you,” and have a purpose to threaten. A joking “threat”

isn’t a threat. Second, not all of the means will apply in every instance. Here, I note that a




       12
         As noted by the majority, the last alternative—in anger or otherwise—was
added in September 1995, after Mr. Tittle’s criminal conduct on June 7, 1995. Majority
Op. at 22 n.14, 3-4 n.2.

                                              12
defendant can violate the statute by pointing a dangerous weapon that is not a firearm (for

instance, a knife?), yet the second alternative covers only an intent to discharge a firearm.

       On this same point, as mentioned, Mathis directs us to look to whether the

charging document or jury instructions “use a single umbrella term like ‘premises.’” 136

S. Ct. at 2257. Here, they did not—and for a reason that strongly favors the government.

Unlike the Iowa burglary statute considered in Mathis, which does contain an umbrella

term (“occupied structure”), Oklahoma’s statute contains no corresponding umbrella

term.13 Though an Iowa prosecutor can charge burglary of an “occupied structure,” an

Oklahoma prosecutor cannot charge pointing a gun with an “improper purpose.”

                                      CONCLUSION

       Applying Mathis’s tools, I conclude that Hood correctly held that Okla Stat. tit. 21

§ 1289.16 lists alternative elements. Thus, under Hood, we employ the modified

categorical approach to the alternative elements, and Mr. Tittle, as part of his state plea,

admitted to one of the alternative elements—pointing a firearm at Ms. Williams with a

purpose of threatening her. His admission proves he necessarily was convicted of a

violent felony—one with an element of the threatened use of physical force. In sum,

       13
          Nor do the purpose-intent alternatives in the Oklahoma statute have a statutory
umbrella term as in Mathis’s hypothetical of “a statute [that] requires use of a ‘deadly
weapon’ as an element of a crime and further provides that the use of a ‘knife, gun, bat,
or similar weapon’ would all qualify.” 136 S. Ct. at 2249 (citing Descamps v. United
States, 133 S. Ct. 2276, 2289 (2013); Richardson v. United States, 526 U.S. 813, 817
(1999)). Mathis described this kind of list as “merely specif[ying] diverse means of
satisfying a single element of a single crime—or otherwise said, spells out various factual
ways of committing some component of the offense—a jury need not find (or a defendant
admit) any particular item.” Id. For me, this says it all. Unlike this hypothetical element
of “deadly weapon” or the “occupied structure” element in the Iowa statute in Mathis,
Oklahoma’s statute has no general statutory component.
                                             13
because I conclude that the Oklahoma statute’s purpose and intent alternatives are

elements, and because applying the modified categorical approach reveals that Mr. Tittle

necessarily admitted to an alternate element qualifying his Oklahoma crime as a violent

felony, I would affirm the district court’s sentence imposed under the ACCA.




                                           14
