                                                                        FILED
                                                            United States Court of Appeals
                                  PUBLISH                           Tenth Circuit

                UNITED STATES COURT OF APPEALS                      May 4, 2018

                                                               Elisabeth A. Shumaker
                       FOR THE TENTH CIRCUIT                       Clerk of Court
                       _________________________________

UNITED STATES OF AMERICA,

       Plaintiff - Appellant,

v.                                                   No. 17-5035

RAYMOND MARK HAMILTON,

       Defendant - Appellee.
                      _________________________________

               Appeal from the United States District Court
                   for the Northern District of Oklahoma
     (D.C. Nos. 4:16-CV-00516-TCK-TLW and 4:06-CR-00188-TCK-1)
                         _________________________________

William A. Glaser, Attorney, Appellate Section, Criminal Division, United
States Department of Justice, Washington, D.C. (R. Trent Shores, United
States Attorney, Leena Alam, Assistant United States Attorney, Tulsa,
Oklahoma; Kenneth A. Blanco, Acting Assistant Attorney General, Trevor
N. McFadden, Deputy Assistant Attorney General, United States
Department of Justice, Washington, D.C., with him on the briefs), for
Plaintiff-Appellant.

Barry L. Derryberry, Assistant Federal Public Defender (Julia L.
O’Connell, Federal Public Defender, with him on the brief), Office of the
Federal Public Defender, Tulsa, Oklahoma, for Defendant-Appellee.
                      _________________________________

Before BRISCOE, LUCERO, and BACHARACH, Circuit Judges.
                  _________________________________

BACHARACH, Circuit Judge.
                  _________________________________
      This appeal grew out of the sentencing of Mr. Raymond Hamilton for

possession of a firearm after a felony conviction. See 18 U.S.C. 922(g)(1).

Mr. Hamilton was sentenced to 190 months’ imprisonment under the

Armed Career Criminal Act (ACCA) based in part on three Oklahoma

convictions for second-degree burglary. Mr. Hamilton moved to vacate his

sentence under 28 U.S.C. § 2255, arguing that the district court had

improperly applied a mandatory minimum based on the ACCA’s

unconstitutional Residual Clause. The district court granted the motion and

resentenced Mr. Hamilton to time served. The government appeals, and we

affirm.

I.    Mr. Hamilton’s Prior Convictions

      If a defendant has three prior convictions for violent felonies, the

ACCA creates a mandatory minimum sentence of 15 years’ imprisonment.

18 U.S.C. § 924(e)(1). Mr. Hamilton had seven prior felony convictions:

      1.    a 1975 Louisiana conviction for burglary,

      2.    a 1975 Oklahoma conviction for second-degree burglary,

      3.    a second Oklahoma conviction for second-degree burglary in
            1975,

      4.    a 1978 Oklahoma conviction for robbery with firearms,

      5.    a 1991 California conviction for assault with a deadly weapon,

      6.    a 1993 California conviction for driving under the influence,
            and



                                      2
      7.    a third Oklahoma conviction for second-degree burglary in
            2005.

The resulting issue is whether three or more of these convictions involved

violent felonies.

      Mr. Hamilton does not dispute that two of his prior convictions

involved violent felonies: (1) his 1978 Oklahoma conviction for robbery

with firearms and (2) his 1991 California conviction for assault with a

deadly weapon. One more prior conviction for a violent felony would

trigger the ACCA’s mandatory minimum.

      The government does not argue that a third violent felony could be

based on (1) his 1975 Louisiana conviction for burglary 1 or (2) his 1993

California conviction for driving under the influence. Thus, the

applicability of the ACCA’s mandatory minimum turned on the three

remaining convictions in Oklahoma for second-degree burglary.

II.   Classification as a Violent Felony Under the Enumerated-Offense
      Clause

      To count as a violent felony under the ACCA, a prior conviction

must involve a violent felony under the Elements Clause, the Enumerated-

Offense Clause, or the Residual Clause. These clauses provide alternative

definitions of a violent felony:


1
     In district court, the government argued that the ACCA’s mandatory
minimum could be based on the 1975 Louisiana conviction. But the
government waived this argument on appeal.

                                     3
      1.    Elements Clause: An element of the offense includes the use,
            attempted use, or threatened use of physical force against
            another person. 18 U.S.C. § 924(e)(2)(B)(i).

      2.    Enumerated-Offense Clause: The offense is burglary, arson,
            extortion, or a crime involving the use of explosives. 18 U.S.C.
            § 924(e)(2)(B)(ii).

      3.    Residual Clause: The crime otherwise creates “a serious
            potential risk of physical injury to another.” Id.

      The Residual Clause is unconstitutionally vague, 2 and the government

does not invoke the Elements Clause. Instead, the government argues that

the Oklahoma offense of second-degree burglary fits the Enumerated-

Offense Clause.

      The Enumerated-Offense Clause would fit only if the Oklahoma

version of second-degree burglary had met the definition of generic

burglary. Taylor v. United States, 495 U.S. 575, 598 (1990). Generic

burglary requires “an unlawful or unprivileged entry into, or remaining in,

a building or other structure, with intent to commit a crime.” Id.

      A.    The Categorical Approach

      To determine whether a crime constitutes generic burglary, we use

the categorical approach. Id. at 600. Under this approach, the court must

decide whether the elements of the prior conviction match the elements of

a generic burglary. See id. at 600, 602.


2
     Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2556-63
(2015).

                                      4
      Oklahoma’s statute for second-degree burglary provides:

            Every person who breaks and enters any building or any
      part of any building, room, booth, tent, railroad car,
      automobile, truck, trailer, vessel or other structure or erection,
      in which any property is kept, or breaks into or forcibly opens,
      any coin operated or vending machine or device with intent to
      steal any property therein or to commit any felony, is guilty of
      burglary in the second degree.

Okla. Stat. tit. 21, § 1435. In district court, the government conceded that

the Oklahoma statute reaches not only generic burglaries but also non-

generic burglaries. But the government insists that Mr. Hamilton’s

Oklahoma convictions involved generic burglaries.

      B.    The Modified Categorical Approach

      For this argument, the government relies on the modified categorical

approach. Under this approach, we consider a limited class of charging

documents to determine whether Mr. Hamilton necessarily admitted the

elements of an offense that would constitute a generic burglary. See

Shepard v. United States, 544 U.S. 13, 26 (2005). But this approach is

permissible only if the statute of conviction is divisible. See Descamps v.

United States, ___ U.S. ___, 133 S. Ct. 2276, 2284 (2013).

      To be divisible, a statute must “comprise[] multiple, alternative

versions of the crime.” Id. A statute comprises “multiple, alternative

versions of the crime” if the statutory options constitute elements rather

than means. Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243, 2248-49

(2016). “Elements” are the parts of a statute that the prosecution must

                                      5
prove; “means” are alternative factual methods of committing a single

element. Id. Thus, we must determine whether the locational alternatives in

the Oklahoma statute for second-degree burglary constitute elements or

means.

      To distinguish between the two, we may consider three sources:

      1.    state-court opinions,

      2.    the text of the statute, and

      3.    the record of conviction.

See id. Each source may definitively show whether the locational

alternatives constitute elements or means. Id. at 2256. After considering

the three sources, however, the court might remain uncertain on whether

the locational alternatives constitute elements or means. This uncertainty

would

           require us to treat the locational alternatives as means,
            rendering the Oklahoma statute indivisible, and

           preclude use of the Oklahoma convictions to trigger the
            ACCA’s mandatory minimum under the Enumerated-Offense
            Clause.

See United States v. Degeare, 864 F.3d 1241, 1248 (10th Cir. 2018)

(“[U]nless 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.”)




                                        6
III.   Indivisibility

       After considering the state-court opinions, the text of the statute, and

the record of conviction, we remain uncertain on whether the locational

alternatives constitute elements or means. In light of this uncertainty, we

must regard the locational alternatives in Oklahoma’s statute for second-

degree burglary as means rather than elements. As a result, Mr. Hamilton’s

sentence was not subject to the mandatory minimum under the ACCA’s

Enumerated-Offense Clause. 3

       A.     Standard of Review

       We review de novo whether Mr. Hamilton’s prior convictions qualify

as violent felonies. United States v. Cartwright, 678 F.3d 907, 909 (10th

Cir. 2012).

       B.     Oklahoma Opinions

       The government argues that

             Oklahoma’s case law classifies location as an element of
              second-degree burglary and




3
      We addressed this issue in United States v. Taylor, stating that the
modified categorical approach could not be used for Oklahoma’s crime of
second-degree burglary. United States v. Taylor, 672 F. App’x 860, 863
(10th Cir. 2016) (unpublished). But Taylor was unpublished, and our
statement constituted dicta because we resolved the case on timeliness
rather than the merits. Id. at 864-65.


                                       7
           Oklahoma’s uniform jury instructions demonstrate that location
            constitutes an element of the offense. 4

Like Oklahoma case law, the Oklahoma uniform jury instructions provide

useful guidance on the content of state law. See United States v. Titties,

852 F.3d 1257, 1270 (10th Cir. 2017) (“Oklahoma’s Uniform Jury

Instructions provide an additional source of state law guidance” to

distinguish between means and elements.); see also De Leon v. Lynch, 808

F.3d 1224, 1231 n.9 (10th Cir. 2015) (“[T]he uniform jury instructions

have often guided both the [Oklahoma Court of Criminal Appeals] and our

court in defining the bounds of Oklahoma criminal law.”). But Oklahoma’s

case law and uniform jury instructions do not definitively require

classification as an element.

      The Oklahoma Court of Criminal Appeals has referred to the

locational alternatives as different ways of satisfying a single element. See

Maines v. State, 264 P.2d 361, 363 (Okla. Crim. App. 1953) (“The first

requisite of burglary is the breaking and entering of a building, booth, tent,

railroad car, vessel or other structure or erection in which any property is

kept.”). Nonetheless, the government contends that Oklahoma courts treat


4
      The government contends that the uniform jury instructions should be
considered as part of the inquiry into the record of conviction. But in
Oklahoma, the trial judge can independently determine whether the
uniform jury instructions accurately state the law. Okla. Stat. tit. 12,
§ 577.2. As a result, Oklahoma’s uniform jury instructions do not
necessarily bear on the record of conviction.

                                      8
locational alternatives as elements of the offense. For this contention, the

government relies primarily on Ross v. State, 147 P.2d 797 (Okla. Crim.

App. 1944). There the Oklahoma Court of Criminal Appeals stated that “an

indictment or information for burglary . . . must allege every fact and

circumstance necessary to constitute the offense, including the time, place,

ownership, and a description of the premises.” Ross, 147 P.2d at 799.

Because the charging document must allege the place being burgled, the

government contends that the place must constitute an element.

      But Oklahoma law requires charging documents to allege not only the

elements but also enough facts for a defendant to prepare for trial and to

defend against double jeopardy. See id. at 799 (noting that an indictment

must enable a defendant “‘to prepare for his trial’” and “‘to defend himself

against any subsequent prosecution for the same offense’” (quoting

Sparkman v. State, 93 P.2d 1095, 1096 (Okla. Crim. App. 1939))); see also

World Publ’g Co. v. White, 32 P.3d 835, 843 (Okla. 2001) (“Although an

information need not allege each element of a crime to withstand a due

process attack, it must give the defendant notice of the charges sufficient

to mount a defense.”). Thus, Ross does not require us to treat location as

an element.

      The government also relies on Oklahoma opinions referring to the

type of burgled property as an element of the offense. E.g., Williams v.

State, 762 P.2d 983, 986 (Okla. Crim. App. 1988) (“The elements of

                                      9
second degree burglary of an automobile are: (1) breaking; (2) entering;

(3) an automobile . . . .”); Willard v. State, 744 P.2d 1276, 1277 (Okla.

Crim. App. 1987) (“Elements of the crime of second degree burglary are

(1) breaking; (2) entering; (3) a building . . . .”). This reliance is misguided

for two reasons.

      First, these opinions were not addressing the distinction between

elements and means. Thus, these opinions are not “binding precedent on

[that] point.” United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 38

(1952).

      Second, in these cases, the prosecutors charged just one of the

locational alternatives and the jury found guilt on that alternative. Because

only one statutory alternative was charged, “it [did] not matter for that

particular case whether the State, as a general matter, would categorize

that fact . . . as an ‘element’ or as a ‘means.’” Mathis v. United States, ___

U.S. ___, 136 S. Ct. 2243, 2264 (2016) (Breyer, J., dissenting).

      For both reasons, the references to the type of burgled property are

not definitive. But the government also points to Oklahoma’s uniform jury

instructions. For second-degree burglary, the uniform jury instructions list

the following elements:

      First, breaking;

      Second, entering;



                                      10
      Third, a/an building/room/booth/tent/(railroad car)/
      automobile/truck/trailer/vessel/structure/erection;

      Fourth, of another;

      Fifth, in which property is kept;

      Sixth, with the intent to steal/(commit any felony).

Okla. Unif. Jury Instr. CR 5-13 (emphases in original).

      An introductory provision states that “[s]lashes are used to indicate

that the judge should select all alternatives that are supported by the

evidence.” Okla. Unif. Jury Instr. CR Cross Reference. The provision adds

that “[i]n some cases, there may have been evidence offered for more than

one alternative, and if so, the trial judge should include them in the

disjunctive.” Id.

      The locational alternatives in the uniform jury instructions are

separated by slashes. Thus, when supported by the evidence, the judge can

instruct the jury on more than one location. The ability to instruct jurors in

the alternative suggests that the listed locations may constitute means

rather than elements. See Mathis v. United States, ___ U.S. ___, 136 S. Ct.

2243, 2249 (2016) (stating that alternatives constitute means when they

“itemize the various places that crime could occur as disjunctive factual




                                      11
scenarios rather than separate elements, so that a jury need not make any

specific findings . . . on that score”). 5

      The government questions whether locations can be charged in the

alternative, pointing to Instruction 5-11. This instruction states that a

defendant is charged with burglary “of [Description of Premises], located

at [Address or Location], [Name of County] County, Oklahoma . . . on

[Date].” Okla. Unif. Jury Instr. CR 5-11 (emphases omitted). The

committee comments explain that “[t]he time, place, date, and description

of the premises . . . must be proved by the State to sustain the conviction.”

Id. According to the government, this instruction shows that a judge can

instruct the jury on only one location.

      But even if the government must prove the location being burgled,

the court can still instruct the jury on alternative locations. For example,

when the burgled location fits two of the listed locations, such as a “booth”

and “tent,” the State could charge the defendant with burgling “a booth or

a tent.” The State would still need to prove the place burgled. But the jury




5
       The government admits that “[t]hese preliminary instructions,
standing alone, may suggest that the locations in § 1435 are merely
different means of satisfying the same element.” Appellant’s Opening Br.
at 24.


                                        12
would not need to decide whether the location being burgled was a “booth”

or a “tent.” 6

      By bunching the locational alternatives into a single element, the

uniform jury instructions suggest that location may involve only a means

of satisfying an element. We addressed a similar issue in United States v.

Titties, 852 F.3d 1257 (10th Cir. 2017). There we concluded that the

Oklahoma criminal statute for pointing a deadly weapon is indivisible

because the statutory alternatives constitute means. Titties, 852 F.3d at

1271. For this conclusion, we relied in part on Oklahoma’s uniform jury

instructions, which state:

      “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).”

Id. (emphasis omitted) (quoting Okla. Unif. Jury Instr. CR 6-42

(alterations in original)). Because the uniform jury instruction bunches the


6
      The government points out that Mr. Hamilton has not cited any
Oklahoma burglary cases where the charging document alleged multiple
alternative locations. The absence of such a citation could support
classification of location as an element. But the absence of such a citation
could also reflect only the charging practices among Oklahoma
prosecutors. See United States v. Diaz, 865 F.3d 168, 177 (4th Cir. 2017)
(rejecting a similar argument by the government, stating that the
“government’s choices in how it charges” a given offense should not
“dictate our legal interpretation of the statute”). As a result, the State’s
alleged practice of charging burglary based on a single locational
alternative would not prove dispositive.

                                     13
statutory alternatives into a single element, we concluded that the jury

would likely not need to agree on a particular alternative to satisfy the

element. Id.

      Similarly, Oklahoma’s uniform jury instruction for second-degree

burglary bunches the locational alternatives into a single element. Okla.

Unif. Jury Instr. CR 5-13 (identifying the third element as “a/an

building/room/booth/tent/(railroad car)/automobile/truck/trailer/vessel/

structure/erection” (emphasis omitted)). The bunching of the locational

alternatives may suggest that the jury would not need to agree on a

particular location to satisfy this element. The uniform jury instructions

therefore do not definitively require us to treat the locational alternatives

in Oklahoma’s statute for second-degree burglary as elements rather than

means.

                                     * * *

      Because Oklahoma’s case law and uniform jury instructions do not

show with certainty whether the locational alternatives constitute elements

or means, we must look elsewhere. See Mathis v. United States, ___ U.S.

___, 136 S. Ct. 2243, 2256 (2016) (noting that “if state law fails to provide

clear answers,” courts should continue with the analysis).




                                      14
     C.    The Text of the Statute

     We therefore turn to the text of the Oklahoma statute. The

government makes two textual arguments for classifying the locational

alternatives as elements:

     1.    The statute does not contain an umbrella term encompassing all
           of the listed alternatives.

     2.    The Oklahoma burglary statute does not resemble the burglary
           statute at issue in Mathis.

Both arguments fail.

     1.    Omission of an Umbrella Term

     An “umbrella term” is a broad term, like “premises,” that

encompasses the other terms in a series. See id. at 2257. The use of an

umbrella term could indicate that the locational alternatives constitute

means rather than elements. See id.

     The district court concluded that the Oklahoma statute for second-

degree burglary does not contain an umbrella term. The absence of an

umbrella term, according to the government, implies that the locational

alternatives are distinct elements. This implication is unclear and weak

when applied to Oklahoma’s statute for second-degree burglary. Cf. United

States v. Titties, 852 F.3d 1257, 1268 n.11 (10th Cir. 2017) (stating that

under Mathis, the presence or absence of an umbrella term is just one of

several ways to differentiate between means and elements).



                                      15
      This statute criminalizes breaking and entering a set of listed

locations, followed by the phrase “other structure or erection.” Okla. Stat.

tit. 21, § 1435. This phrase includes “structure,” a broad term defined as

“[a]ny construction, production, or piece of work artificially built up or

composed of parts purposefully joined together . . . .” Structure, Black’s

Law Dictionary (10th ed. 2014). 7 Based on this definition, the phrase

“other structure or erection” unquestionably encompasses at least some of

the locations named in the statutory list. 8 Because some of the listed

locations are considered a “structure or erection,” use of this phrase could

suggest that some of the listed locations overlap. As a result, some of the

listed locations might be considered examples of a “structure or erection,”

which could support classification as means rather than elements. See

Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243, 2256 (2016) (“[I]f a




7
      In Oklahoma, Black’s Law Dictionary supplies an accepted reference
for definitions of statutory terms. See, e.g., Virgin v. State, 792 P.2d 1186,
1188 (Okla. Crim. App. 1990) (using Black’s Law Dictionary to define
statutory terms).
8
      The government concedes that the term “other structure or erection”
“can embrace some of the other locations.” Appellant’s Opening Br. at 19;
see also Appellant’s Reply Br. at 1-2 (stating that a “structure or erection”
“embraces some, but not all, of the other locational alternatives”); id. at 9
(“[T]he term ‘structure or erection’ can embrace some of the other listed
locations.”).




                                      16
statutory list is drafted to offer ‘illustrative examples,’ then it includes

only a crime’s means of commission.”).

      In light of the broad phrase (“structure or erection”), the locational

alternatives might simply reflect different means of committing a second-

degree burglary.

      2.    Comparison to the Law Involved in Mathis

      In Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243 (2016), the

Supreme Court considered whether the locational alternatives constituted

elements or means under Iowa’s burglary statute. There the Court

classified the location as a means. See Mathis, 136 S. Ct. at 2256-57. In

light of this classification, Mr. Hamilton asserts that Iowa’s burglary

statute resembles Oklahoma’s; the government underscores the differences.

In our view, the Iowa burglary statute bears both similarities to and

differences with the Oklahoma statute.

      Focusing on the similarities, Mr. Hamilton points out that

           a disjunctive list appears in both the Iowa statute and the
            Oklahoma statute and

           Iowa’s statute contains a catch-all term (“occupied structure”),
            resembling the Oklahoma catch-all term (“other structure or
            erection”).

But differences exist as well. For example, Iowa’s statute contains a

separate statutory definition of the broad term; Oklahoma’s statute does

not. Id. at 2259 (Breyer, J., dissenting).


                                       17
      The government persuasively argues that the similarities tell us little.

For example, though the Iowa statute contains a broad term (“occupied

structure”), the Mathis majority never referred to that term. See id. at 2250

(majority op.).

      But Mr. Hamilton also points out that the differences between the

Iowa and Oklahoma statutes may tell us little, for Mathis did not suggest

that the format of Iowa’s statute was the only way to list alternatives as

means. See United States v. Lobaton-Andrade, 861 F.3d 538, 543-544 (5th

Cir. 2017) (per curiam) (stating that even though Mathis had regarded the

existence of illustrative examples as a characteristic of means, Mathis did

not hold that the converse would require classification as an element); see

also United States v. Gundy, 842 F.3d 1156, 1174 (11th Cir. 2016) (Jill

Pryor, J., dissenting) (“Although state statutes with a single locational

element defined separately have been held to be indivisible in Mathis . . . ,

there is no truth to the converse, that the lack of a single locational

element with a separate definition section means a disjunctively phrased

statute is divisible.”).

                                     * * *

      The statutory differences leave room to distinguish Mathis. But

differences alone do not compel a difference in result. Thus, we cannot

determine whether the Oklahoma statute is divisible by comparing and



                                      18
contrasting the Iowa and Oklahoma statutes. 9 In these circumstances, we

remain uncertain over whether Oklahoma’s locational alternatives

constitute elements or means.

      D.    The Record of Conviction

      We have one more place to look: “the record of a prior conviction

itself.” Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243, 2256 (2016).

We can “peek” at the record of conviction to determine whether the

locational alternatives constitute elements or means. Id. at 2256-57

(internal quotation marks omitted). The government argues that the

charging documents show that the locational alternatives constitute

elements rather than means. We disagree.

      The charging documents in the two 1975 Oklahoma burglaries

alleged a break-in into a “certain building.” Appellant’s App’x at 45, 48.

The charging document for the 2005 burglary alleged a break-in into a

“residence.” Id. at 51. According to the government, specification of the

locations in the charging documents must mean that location constitutes an

element of the offense.

9
      The government analogizes the Oklahoma statute to the Georgia
burglary statute in United States v. Gundy, 842 F.3d 1156 (11th Cir. 2016).
There the Eleventh Circuit Court of Appeals concluded that the text of the
statute—which listed several locational terms in the disjunctive—
establishes that the locational terms constitute elements rather than means.
Gundy, 842 F.3d at 1166-67. To the extent that the Georgia statute
resembles Oklahoma’s statute, we disagree with Gundy’s conclusion.


                                      19
      But as previously discussed, charging documents often allege

additional facts that are not elements of the crime. See United States v.

Edwards, 836 F.3d 831, 838 (7th Cir. 2016) (“[B]ecause the charging

documents may allege additional facts, the inclusion of ‘dwelling’ tells us

nothing about whether it’s an element of burglary or simply a factual

description.”). Moreover, it is unsurprising that the burgled locations were

included in the charging documents because these locations had not been

contested. As a result, “inclusion of the uncontested locations tells us little

about whether the State of Oklahoma would regard the location as an

element or a means if the location were contested.” See Mathis, 136 S. Ct.

at 2264 (Breyer, J., dissenting).

      In addition, the charging document for the 2005 burglary alleged the

burglary of a “residence.” But Oklahoma’s statute for second-degree

burglary does not use the term “residence.” And a residence can consist of

a fixed building (like a conventional house) or a vehicle (like a trailer).

Indeed, Oklahoma courts have referred to the burglary of a trailer as a

residential burglary. See Chambers v. State, 720 P.2d 741, 742 (Okla.

Crim. App. 1986) (referring to the defendant’s conviction of burglary of a

“trailer residence”); see also Anderson v. State, 658 P.2d 501, 502 (Okla.

Crim. App. 1983) (referring to the search of a “residence trailer”). Thus,

the charging document’s mention of a “residence” does not clarify whether

the statutory location would constitute an element or means.

                                      20
      The government downplays use of the term “residence,” contending

that other allegations in the charging document establish that the

“residence” was a “building.” Appellant’s Reply Br. at 16. But the nature

of the residence does not remove the uncertainty on classification as an

element or means: If location were an element, why would the charging

document use a term (“residence”) absent from the statutory list of

locations? See United States v. Ritchey, 840 F.3d 310, 321 (6th Cir.

2016). 10 The use of this term in the charging document leaves us with

uncertainty over whether the locational alternatives constitute means or

elements.

                                    * * *

      Neither Oklahoma case law, the text of the Oklahoma statute, nor the

record of conviction establishes with certainty whether the locational

alternatives constitute elements or means. In light of the uncertainty, we

must treat the Oklahoma statute as indivisible.

10
      In Ritchey, the burglary statute listed pieces of property that could be
burgled: “‘a tent, hotel, office, store, shop, warehouse, barn, granary,
factory or other building, structure, boat, ship, shipping container, or
railroad car.’” United States v. Ritchey, 840 F.3d 310, 320 (6th Cir. 2016)
(emphasis omitted) (quoting Mich. Comp. Laws § 750.110). In addressing
whether these pieces of property constituted elements or means, the
Ritchey court consulted the records of the defendant’s past convictions. Id.
at 321. But the term “garage,” which the defendant was charged with
burgling, was not one of the pieces of property listed in the burglary
statute. Id. The court reasoned that it was therefore “implausible that this
language identifies a particular statutory alternative, much less treats it as
an element.” Id.

                                      21
      Because the statute is indivisible, we cannot use the modified

categorical approach to determine whether Mr. Hamilton committed an

offense satisfying the generic definition of burglary. See Mathis v. United

States, ___ U.S. ___, 136 S. Ct. 2243, 2256 (2016) (explaining that if

statutory alternatives are means, the court cannot apply the modified

categorical approach). Thus, we conclude that

            Mr. Hamilton’s sentence was not subject to the ACCA’s
             mandatory minimum under the Enumerated-Offense Clause and

            application of the ACCA’s mandatory minimum must have been
             based on the constitutionally infirm Residual Clause.

IV.   Conclusion

      Mr. Hamilton’s three Oklahoma convictions for second-degree

burglary could have been based on conduct falling outside the generic

definition of burglary. Thus, the district court could apply the ACCA’s

mandatory minimum only if the court concludes with certainty that

Oklahoma’s statute for second-degree burglary is divisible. We lack such

certainty.

      We must therefore regard the Oklahoma statute as indivisible,

precluding use of the modified categorical approach. Without that

approach, we conclude that the Oklahoma offense of second-degree

burglary does not fit the Enumerated-Offense Clause. As a result, the

ACCA’s mandatory minimum could have been based only on the Residual



                                      22
Clause. Because the Residual Clause is unconstitutionally vague, we affirm

the grant of Mr. Hamilton’s § 2255 motion.




                                    23
17-5035, United States v. Hamilton
BRISCOE, Circuit Judge, concurring in the result.

       I agree with the majority that we should affirm the district court. However, I reach

that result after concluding that Okla. Stat. tit. 21, § 1435 is indivisible, which differs

from the majority’s conclusion that a Mathis analysis is inconclusive on the question of

divisibility.

                                               I

       To determine whether a predicate offense qualifies as a violent felony under

§ 924(e)(2)(B)(ii)’s enumerated offenses clause, we begin by addressing whether the

statute is broader than the generic version of the crime. See Mathis v. United States, 136

S. Ct. 2243, 2248 (2016). If the statute “sets out a single (or ‘indivisible’) set of elements

to define a single crime,” Mathis, 136 S. Ct. at 2248, we apply the categorical approach

and compare the least of the acts criminalized by the state statute to the generic definition

of the offense. United States v. Titties, 852 F.3d 1257, 1265 (10th Cir. 2017). But “when

the statute 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.” Id.

       There are three ways to discern whether a statute is divisible. See Mathis, 136 S.

Ct. at 2256. “First, in some instances, the statute on its face will provide the answer.”

Titties, 852 F.3d at 1267. That is, “if statutory alternatives carry different punishments,”

then these alternatives must be elements. Mathis, 136 S. Ct. at 2256. But “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)). Alternatively, “a statute may itself identify which things must be charged (and so

are elements) and which need not be (and so are means).” Id. Second, a state court

decision may provide the answer to divisibility, as it did in Mathis. Id. (citing State v.

Duncan, 312 N.W.2d 519, 523 (Iowa 1981)). And third, “if state law fails to provide

clear answers,” the court may “peek” at the underlying record to see whether it indicates

whether the listed items are elements of the offense. Id. at 2256–57.

       “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.” Titties, 852

F.3d at 1268 (quoting Mathis, 136 S. Ct. at 2257).

       In this case, we apply the principles set out in Mathis to Okla. Stat. tit. 21, § 1435,

which states:

                Every person who breaks and enters any building or any part
                of any building, room, booth, tent, railroad car, automobile,
                truck, trailer, vessel or other structure or erection, in which
                any property is kept, or breaks into or forcibly opens, any
                coin-operated or vending machine or device with intent to
                steal any property therein or to commit any felony, is guilty
                of burglary in the second degree.

Okla. Stat. tit. 21, § 1435 (1961).

                                              II

       In the absence of any on-point ruling from the Oklahoma courts (or a prior

decision from this court deciding the question), we must analyze whether § 1435 is



                                              2
divisible. After conducting that analysis, I agree with the majority and the district court

that § 1435 is indivisible, though I reach that result by a somewhat different route.

        At the outset, I conclude the text of § 1435 points in favor of indivisibility, though

it is not alone determinative. Like the Iowa burglary statute at issue in Mathis—Iowa

Code § 713.1, which gets its definitions from Iowa Code § 702.12—§ 1435 includes a list

of locations where the perpetrator could break and enter to commit a burglary. At first

blush, it would then appear that § 1435 is indivisible, just as Mathis concluded Iowa’s

burglary statute was indivisible.

        Yet, there is a distinction between § 1435 and the statute at issue in Mathis. And

the distinction prevents the text of § 1435 from being determinative. The text of Iowa

Code § 702.12 included an “umbrella term” to define a category of locations, Mathis, 136

S. Ct. at 2257, followed by a list of “illustrative examples.”1 Id. at 2256. The umbrella

term in Iowa’s burglary statute is “occupied structure,” Iowa Code § 713.1, and the

“illustrative examples” are “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.”

Iowa Code § 702.12. Critically, all of the illustrative examples fit under the umbrella

term.


        1
         Mathis included the discussion of an “umbrella term” within its peek at the state
court record, and left it unclear whether umbrella term analysis was limited to merely that
part of the divisibility analysis. I believe it is not so limited.

                                               3
       Further, Mathis provided another hypothetical example of an umbrella term in an

indivisible statute. Mathis, 136 S. Ct. at 2249. The Court stated, “[t]o use a hypothetical

adapted from two of our prior decisions, suppose a statute 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.” Id. (citing Descamps v. United States, 570

U.S. 254 (2013); Richardson v. United States, 526 U.S. 813, 817 (1999)). The umbrella

term there (“deadly weapon”) also encompasses all of the illustrative examples (“knife,

gun, bat, or similar weapon”). Therefore, it is clear from Mathis that to be an umbrella

term the provision or phrase at issue must encompass all of the illustrative examples.

       Section 1435 does not fit that rule. Instead, it lists ten locations,2 and this listing is

not preceded or succeeded by an all-encompassing umbrella term. Hamilton argues that

one of the locations—“structure or erection”—is broad enough to also describe other

locations in the list. But because some of the terms in the list, such as “automobile” or

“vessel,” are not structures or erections, there is no umbrella term here as is described in

Mathis.

       Therefore, an examination of the statutory text of § 1435 points in favor of

indivisibility, but does not definitively answer the question because of distinctions

between the phraseology in § 1435 and the statute at issue in Mathis.




       2
         Those terms being (1) “building,” (2) “room,” (3) “booth,” (4) “tent,” (5)
“railroad car,” (6) “automobile,” (7) “truck,” (8) “trailer,” (9) “vessel,” and (10) “other
structure or erection.”

                                               4
       However, when we consider the text of § 1435 in conjunction with state law

sources, it becomes clear that the locational alternatives in § 1435 are means of the same

element in an indivisible statute. Most critically, the Oklahoma Uniform Jury

Instructions point us in this direction. Titties, 852 F.3d at 1270 (“Oklahoma’s Uniform

Jury Instructions provide . . . [a] source of state law guidance.”).3 Oklahoma’s Uniform

Jury Instructions for second-degree burglary state that:

              No person may be convicted of burglary in the second degree
              unless the State has proved beyond a reasonable doubt each
              element of the crime. These elements are:
                     First, breaking;
                     Second, entering;

       3
         There is some confusion about where the uniform jury instructions fit within
Mathis’ three prongs. See Titties, 852 F.3d at 1270 (analyzing the uniform jury
instructions as a source of state law); United States v. Degeare, 884 F.3d 1241, 1254 n.6
(10th Cir. 2018) (analyzing the uniform jury instructions in the peek at the state court
record); United States v. Pam, 867 F.3d 1191, 1205 (10th Cir. 2017) (analyzing the
uniform jury instructions alongside the statutory text). I believe that when a defendant
pled guilty to the offense at issue—as Hamilton did with the burglaries at issue here—it
is proper to look at the uniform jury instructions as a source of state law. Titties, 852
F.3d at 1270 n.15 (noting that when “the defendant pled guilty and no jury instructions
were given, the state’s uniform jury instructions can provide insight into the
means/elements question”). It is true that uniform jury instructions are not mandatory in
every state. Compare State v. Wilson, 867 P.2d 1175, 1177 (N.M. 1994) (holding New
Mexico’s Uniform Jury Instructions are mandatory and presumptively correct if adopted
by the New Mexico Supreme Court) with Okla. Stat. tit. 12, § 577.2 (stating “the OUJI
instructions shall be used unless the court determines that it does not accurately state the
law”). Nonetheless, state trial courts use the uniform jury instructions in the vast
majority of trials, and the uniform instructions are a helpful guide to determining what
proofs are required to convict. In that way, uniform jury instructions can elucidate
“which things must be charged (and so are elements) and which need not be (and so are
means).” Mathis, 136 S. Ct. at 2256. If however, the defendant went to trial on the
underlying offense, then we look to uniform jury instructions only if those were the
instructions actually given. If the instructions given varied from the uniform instruction,
the instructions given would fall under Mathis’ third prong, which examines the record
documents. Id.

                                              5
                      Third, a/an building/room/booth/tent/(railroad
                         car)/automobile/truck/trailer/ vessel/structure/erection;
                      Fourth, of another;
                      Fifth, in which property is kept;
                      Sixth, with the intent to steal/(commit any felony).

Okla. Unif. Jury Instrs. – Crim. 5-13 (emphasis in original) (citing § 1435).

       As the majority notes, Op. at 11, an introductory provision explains that “[s]lashes

are used in an instruction to indicate that the judge should select all the alternatives that

are supported by the evidence.” Okla. Unif. Jury Instrs. Crim. Cross Reference; see also

Titties, 852 F.3d at 1271 (noting that some Oklahoma Uniform Jury Instructions “bunch[]

together [a list of] alternatives into a single element”). “Boldface type is used whenever

the judge is required to select among alternatives or fill in names.” Okla. Unif. Jury

Instrs. Crim. Cross Reference.

       In Mathis, the Court concluded “[t]he listed premises in Iowa’s burglary [statute]

. . . are ‘alternative method[s]’ of committing one offense, so that a jury need not agree

whether the burgled location was a building, other structure, or vehicle.” Mathis, 136 S.

Ct. at 2256 (quoting Duncan, 312 N.W.2d at 523). Here, the Oklahoma Uniform Jury

Instructions also refer to the list of locations in a burglary statute as “alternative[s].” And

the Oklahoma Uniform Jury Instructions further permit the trial judge to instruct on “all

the alternatives that are supported by the evidence.” Okla. Unif. Jury Instr. Crim. Cross

Reference. The similarities between the way Iowa and Oklahoma treat their respective

burglary statutes confirms what the text of § 1435 indicated: the alternative locations for

burglary are means of the same element.



                                               6
       Nothing in Oklahoma case law undermines this conclusion. The government

points out that the Oklahoma Court of Criminal Appeals (OCCA)4 has noted that “an

indictment or information for burglary . . . must allege every fact and circumstance

necessary to constitute the offense, including the time, place, ownership, and a

description of the premises.” Ross v. State, 147 P.2d 797, 799 (Okla. Crim. App. 1944)

(citing Simpson v. State, 113 P. 549 (Okla. Crim. App. 1911)). And the OCCA held these

“fact[s] and circumstance[s]”—including the “description of the premises”—are the

“essential ingredients of the crime of burglary in the second degree.” Id. According to

the government, this aligns with Mathis, which noted that if a statutory alternative “must

be charged” and “prove[n] to a jury,” then it is an element. Mathis, 136 S. Ct. at 2256–57.

       Yet, for two reasons, Ross and Simpson do not preclude the conclusion that § 1435

is indivisible. First, the facts and circumstances described in Ross and Simpson are

required “to inform the accused of the particular crime of which he is charged.” Simpson,

113 P. at 550. Oklahoma prosecutors have to identify specific characteristics of the

location burglarized, not because each location is part of a unique crime, but rather

because a description of the location enables the defendant to prepare a defense to the

charge. Therefore, as the district court put it, Ross and Simpson “were not directly

addressing the means/elements distinction.” ROA, Vol. I at 73.

       Second, Ross and Simpson do not undermine the conclusion that the locational

alternatives in § 1435 are means because they leave open the possibility of charging

       4
      Prior to 1959, this court was the Oklahoma Criminal Court of Appeals. I use
OCCA for all references to this court.

                                             7
multiple locational alternatives in the same case. And if a prosecutor can charge multiple

alternatives in the same case, that “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.” Mathis, 136 S. Ct. at 2257.

       The possibility of charging multiple alternatives from § 1435’s locational list is

best seen by example. For instance, say a perpetrator broke into a Chevrolet El Camino

and stole items. An Oklahoma prosecutor could charge that person with burglarizing an

“automobile,” or with burglarizing a “truck,” at a particular location on a certain date,

and could specifically identify the vehicle by listing the license plate information and

owner. Ross and Simpson tell us the “indictment or information for burglary . . . must

allege every fact and circumstance necessary to constitute the offense, including the time,

place, ownership, and a description of the premises.” Ross, 147 P.2d at 799; Simpson,

113 P. at 550. And Ross goes on to say that the “location” of the burglary is “essential.”

Ross, 147 P.2d at 799.

       An indictment charging the defendant with burglarizing a Chevrolet El Camino by

breaking and entering a “truck or automobile” at 11 p.m. on January 1, 2018, with the

license plate of ABC123 with intent to steal items inside sufficiently alleges “every fact

and circumstance” of the burglary and describes the premises in detail. And there is

nothing in Ross or Simpson that indicates the jury must agree on the location burglarized.




                                               8
That is, the conviction in the hypothetical case just described would be valid even if six

jurors found the Chevrolet El Camino was a truck, and six found it to be an automobile.5

       The government points out that there is no evidence that an Oklahoma prosecutor

has ever charged multiple locations in the same burglary prosecution. Gov’t Reply Br. at

8–9; but cf. Titties, 852 F.3d at 1271 n.18 (“Oklahoma clearly did charge multiple

alternatives.”). But our inquiry into state sources of law is not an inquiry to determine the

charging practices of Oklahoma prosecutors. Rather, we are asked to decide the legal

question of whether the statutory alternatives contained in § 1435 are elements or means.

As regards Oklahoma’s requirement of specifically identifying the location burglarized,

§ 1435 does not appear to limit an indictment to listing only one of the statute’s locational

alternatives.

       Aside from its arguments based on Ross and Simpson, the government argues that

before the Supreme Court began to speak of a distinction between means and elements in

criminal statutes, the OCCA stated that the “[e]lements of the crime of second degree

burglary are (1) breaking; (2) entering; (3) a building; (4) of another; (5) in which

property is kept; (6) with intent to steal.” Willard v. State, 744 P.2d 1276, 1277 (Okla.

Crim. App. 1987) (emphasis added). Like the majority, Op. at 9–10 (citing United States

v. L.A. Tucker Truck Lines, 344 U.S. 33, 38 (1952)), I do not believe Willard answers the

divisibility question or undercuts the view that a prosecutor could charge multiple

       5
       Courts have used both “automobile” and “truck” to refer to a Chevrolet El
Camino. See, e.g., State v. Vandouris, 84 Wash. App. 1071 (1997) (“a 1976 Chevrolet El
Camino automobile”); State v. Wyrick, 241 S.E.2d 355, 356–57 (N.C. 1978) (“a green
1972 Chevrolet El Camino truck”).

                                              9
locations in the same burglary prosecution. Just because the OCCA happened to use the

magic word (“elements”) does not mean it was discussing the divisibility question at

issue here or referring to “a building” as a unique element. If anything, the OCCA’s

holding that “a building” is but one element of § 1435 indicates that Oklahoma courts

treat the locational alternatives in § 1435 as interchangeable means that can be referred to

in shorthand as “a building.”

       Therefore, there is nothing in the OCCA case law to undermine the conclusion that

§ 1435 is an indivisible statute.6

                                            III

       Since § 1435 is indivisible, we must apply the categorical approach and ask

whether § 1435 “‘sweeps more broadly’ than the ACCA definition—that is, if some

conduct would garner a conviction but would not satisfy the [enumerated offenses clause]

definition.’” Titties, 852 F.3d at 1266 (alteration omitted) (quoting Descamps, 133 S. Ct.

at 2283). We have already answered this question, holding that because § 1435 “defines

burglary in terms broader than the [generic] definition, [a prior § 1435] conviction cannot

as a categorical matter provide a basis for enhancement under the ACCA.” United States

v. Green, 55 F.3d 1513, 1516 (10th Cir. 1995).7


       6
        Because a review of the text of § 1435 and the corresponding state law sources
provides a “clear answer[]” on the divisibility question, there is no need to turn to a
“peek” at the record. See Mathis, 136 S. Ct. at 2256.
       7
        In Green, we applied the modified categorical approach without first considering
whether § 1435 is divisible. Green, 55 F.3d at 1516. Green has thus been overruled by
subsequent case law such as Descamps and Mathis to the extent it stands for the
                                                                         (Continued . . .)
                                            10
       Therefore, Hamilton’s three predicate offenses under § 1435 should not have

counted as violent felonies for an ACCA enhancement. I would affirm the district court.




(cont’d)
proposition that a court can analyze § 1435 under the modified categorical approach
without first determining whether the statute is divisible. Yet, Green remains good law
for its holding that, on its face, the text of § 1435 “defines burglary in terms broader than
the [generic] definition.” Id. at 1516 (noting that the list of locations in § 1435 is broader
than the generic definition of burglary, which is “any crime . . . having the basic elements
of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent
to commit a crime” (quoting Taylor v. United States, 495 U.S. 575, 599 (1990)). Further,
the parties here do not appear to contest that § 1435’s text is broader than generic
burglary.


                                             11
