                                                                                   FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        December 18, 2017

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

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 17-1025

THOMAS JEREMY ABEYTA,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                         (D.C. No. 1:16-CR-00213-WYD-1)
                       _________________________________

 Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public

 Defender, with him on the briefs), Office of the Federal Public Defender for the District

                of Colorado, Denver, Colorado, appearing for Appellant.


Michael C. Johnson, Assistant United States Attorney (Robert C. Troyer, Acting United
States Attorney, with him on the brief), Office of the United States Attorney for the
District of Colorado, Denver, Colorado, appearing for Appellee.

                         _________________________________

Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges.
                   _________________________________

BRISCOE, Circuit Judge.
                     _________________________________
      This is a direct criminal appeal in which Defendant Thomas Jeremy Abeyta

(“Abeyta”) challenges his sentence. Abeyta pled guilty to being a previously

convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The

district court enhanced Abeyta’s sentence pursuant to United States Sentencing

Guidelines (the “U.S.S.G.” or the “guidelines”) § 4A1.2(c), counting Abeyta’s prior

conviction for “damaging, defacing or destruction of private property” under Denver

Revised Municipal Code (“Den.”) § 38-71 as a local ordinance violation that also

violates state criminal law. Abeyta now appeals the sentencing enhancement.

Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we

remand with direction to vacate Abeyta’s sentence and resentence him.

                                           I

      On October 12, 2016, Abeyta pled guilty to being a previously convicted felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In Abeyta’s

Presentence Investigation Report (the “PSR”), the probation office determined that

Abeyta’s prior conviction for “damaging, defacing or destruction of private property”

under Denver ordinance, Den. § 38-71, counted for one criminal history point

pursuant to U.S.S.G. § 4A1.2(c)(1), (d)(2)(B). The PSR also noted that Abeyta

committed the instant offense while on probation for his Den. § 38-71 conviction,

which led to an additional 2-point increase under U.S.S.G. § 4A1.1(d).

      Because the PSR counted Abeyta’s conviction under Den. § 38-71, his

criminal history points increased from 7 to 10. This is due to the 1-point increase for

the Den. § 38-71 conviction itself, and the 2-point increase for committing the instant

                                           2
offense (violation of 18 U.S.C. § 922(g)(1)) while on probation for a countable

conviction (violation of Den. § 38-71).1 These three points increased his criminal

history points from 7 to 10, with the resulting change in criminal history category

from category IV to category V and an increased guideline range from 21–27 months

to 27–33 months.

      Generally, the guidelines count misdemeanors and petty offenses for purposes

of calculating a defendant’s criminal history score, but § 4A1.2(c)(2) provides a list

of exceptions:

             (c) Sentences Counted and Excluded

             Sentences for all felony offenses are counted. Sentences for
             misdemeanor and petty offenses are counted, except as follows:
                   ....
                   (2) Sentences for the following prior offenses and offenses
                   similar to them, by whatever name they are known, are
                   never counted:
                          ...
                          Local ordinance violations (except those violations
                          that are also violations under state criminal law)[.]

U.S.S.G. § 4A1.2(c). More specifically, subsection (c)(2) lists “[l]ocal ordinance

violations” as an offense that is not counted under the guidelines, but there is an

exception to this exception: “(except those violations that are also violations under

state criminal law).” Id. Because a Den. § 38-71 offense is a local ordinance

violation, it qualifies as an exception under § 4A1.2(c)(2), meaning that it does not


      1
        That is, the 2-point increase is dependent upon first finding that a violation of
Den. § 38-71 is a countable conviction—otherwise, Abeyta would not have
committed the instant offense while on probation for a countable conviction.

                                           3
count toward Abeyta’s criminal history score. But, if a Den. § 38-71 offense also

violates state criminal law, then the exception to the exception applies, meaning that

it does count under the guidelines.

      On December 27, 2016, Abeyta filed a written objection to the PSR, arguing

(among other things) that his Den. § 38-71 conviction is a local ordinance violation

that does not necessarily violate state criminal law. He noted that Colorado has a

similar offense, Colo. Rev. Stat. (“Colo.”) § 18-4-501 (making it “unlawful for any

person knowingly to damage, deface, destroy or injure” another person’s property),

but argued that the Colorado statute only criminalizes conduct that actually damages

property, whereas Den. § 38-71 criminalizes broader conduct, including defacement

that does not cause damage. Because a violation of Den. § 38-71 does not

necessarily violate Colo. § 18-4-501, Abeyta argued, the “exception to the exception”

does not apply.

      On January 17, 2017, the district court held a sentencing hearing. At the

hearing, Abeyta repeated his objection to the PSR. The government responded by

arguing that a Den. § 38-71 violation also violates Colo. § 18-4-501 under a

“common sense approach,” referencing text in the commentary of the guidelines.

Aplt. App., Vol. III at 42. The district court agreed with the government and

overruled Abeyta’s objection, holding “because destruction of property could be

charged under the state statute for criminal mischief, that there is sufficient similarity

between the two that, using a common sense approach, it’s okay to count as

Probation did.” Id. at 43.

                                            4
      The district court determined that the PSR correctly calculated the sentencing

guideline range as 27–33 months. The district court sentenced Abeyta to 27 months

imprisonment and 3 years of supervised release.

                                           II

      Abeyta now appeals, arguing that the district court erred by applying a

“common sense approach,” and that, after correctly applying the categorical

approach, his Den. § 38-71 conviction should not count toward his criminal history

score. He argues that since this error affected his guideline range, the error is not

harmless. See United States v. Kieffer, 681 F.3d 1143, 1169 (10th Cir. 2012).

      “We review the district court’s interpretation and application of the Sentencing

Guidelines de novo.” United States v. Martinez-Villalva, 232 F.3d 1329, 1332 (10th

Cir. 2000) (quoting United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th

Cir. 1999)).

A.    The district court erred by applying a “common sense approach.”

      The parties appear to agree that the district court erred in applying a “common

sense approach.” Aplt. Br. at 10; Aple. Br. at 14 (“Abeyta correctly notes that the

district court counted the local ordinance violation under § 4A1.2(c)(2) on the theory

that there was ‘sufficient similarity’ between the ordinance violation and the state

criminal law, ‘using a common sense approach[.]’ That was not the correct method

to resolve the issue.” (internal citations omitted)). We hasten to add here, however,

that the district court was drawn into this “common sense approach” at the urging of

the government.

                                            5
      Indeed, the “common sense approach” does not apply in this context. U.S.S.G.

§ 4A1.2(c)(2) states that “[s]entences for the following prior offenses and offenses

similar to them, by whatever name they are known, are never counted.”

§ 4A1.2(c)(2) (emphasis added). The phrase “and offenses similar to them” is open

to interpretation, so Comment 12(A) explains, in relevant part: “In determining

whether an unlisted offense is similar to an offense listed in subsection (c)(1) or

(c)(2), the court should use a common sense approach[.]” U.S.S.G. § 4A1.2 cmt.

12(A). As the comment states, this approach applies when determining whether an

unlisted offense is similar to a listed offense. Here, a Den. § 38-71 offense is a local

ordinance violation—a listed offense under § 4A1.2(c)(2)—so the “common sense

approach” does not apply.

      Thus, our focus for comparison here is whether a listed offense (a local

ordinance violation) is also a violation of state law, which would qualify as an

exception to the listed offense.

B.    The categorical approach applies.

      To compare the Denver ordinance at issue here with any parallel state criminal

statute, we must first determine the applicable framework for that comparison, i.e.,

whether the categorical approach or the factual approach applies. This determination

of the applicable approach is a question of statutory interpretation. See Taylor v.

United States, 495 U.S. 575, 600 (1990) (interpreting 18 U.S.C. § 924(e) to require a

categorical approach).



                                            6
      “Depending on the language of the enhancement,” we have employed either

the “categorical approach” or the “factual approach.” United States v. Martinez-

Hernandez, 422 F.3d 1084, 1086–87 (10th Cir. 2005). We employ the categorical

approach “when the language of the enhancement confines the court’s inquiry to the

terms of the statute of conviction.” Id. at 1086 (internal quotation marks and

citations omitted). This approach “look[s] not to the particular facts of the prior

conviction but to the terms of the underlying statute.” Id. On the other hand, we

employ the factual approach “when the language of the enhancement requires courts

to look at the specific facts underlying the prior offense.” Id. at 1087 (internal

quotation marks and citations omitted). Unlike the categorical approach, the factual

approach “look[s] not only at the terms of the statute of conviction, but also at the

underlying facts.” Id.

      Here, the guideline at issue does not make any reference to the underlying

facts of the prior conviction. Rather, § 4A1.2(c)(2) simply excepts “[l]ocal ordinance

violations (except those violations that are also violations under state criminal law).”

Comment 12(B), which speaks directly to the local ordinance exception, explains that

the exception to the exception exists because some local ordinances are exactly the

same as state criminal statutes, and were only enacted to give local municipalities

jurisdiction over the same conduct.2 U.S.S.G. § 4A1.2 cmt. 12(B). This too



      2
          In full, Comment 12(B) states:

                                                                         (continued . . .)
                                            7
supports the applicability of the categorical approach, as it suggests the exception to

the exception exists to account for local ordinance offenses that mirror state criminal

offenses. Which, in turn, suggests that our task is to compare the language of the

ordinance to the language of the statute.

       Because § 4A1.2(c)(2) appears to confine the court’s inquiry to the statute of

conviction, rather than allowing the court to examine the underlying conduct, we

conclude that the categorical approach applies when determining whether local

ordinance violations “are also violations under state criminal law.” U.S.S.G.

§ 4A1.2(c)(2).

C.     Den. § 38-71 is not divisible.

       In applying the categorical approach, a court must determine whether the

modified categorical approach is appropriate. “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.’”

United States v. Titties, 852 F.3d 1257, 1266 (10th Cir. 2017) (quoting Descamps v.

(continued . . .)

              A number of local jurisdictions have enacted ordinances covering
              certain offenses (e.g., larceny and assault misdemeanors) that are
              also violations of state criminal law. This enables a local court
              (e.g., a municipal court) to exercise jurisdiction over such
              offenses. Such offenses are excluded from the definition of local
              ordinance violations in § 4A1.2(c)(2) and, therefore, sentences
              for such offenses are to be treated as if the defendant had been
              convicted under state law.

U.S.S.G. § 4A1.2 cmt. 12(B).

                                            8
United States, 133 S. Ct. 2276, 2281(2013)). “A statute is divisible only if it ‘sets

out one or more elements of the offense in the alternative,’” id. at 1267 (quoting

Descamps, 133 S. Ct. at 2281), but “[i]t is not enough that a statute is framed in the

disjunctive,” id. Rather, “the statutory phrases listed in the alternative must be

elements, not means.” Id.

      Den. § 38-71 is an alternatively phrased ordinance. In relevant part, the

ordinance makes it “unlawful for any person knowingly to damage, deface, destroy

or injure the real property of one (1) or more other persons.” Den. § 38-71 (emphasis

added).

      Where, as here, the court is faced with an alternatively phrased statute, the

“first task” is “to determine whether its listed items are elements or means.” Mathis

v. United States, 136 S. Ct. 2243, 2256 (2016). “Elements are the constituent parts of

a crime’s legal definition—the things the prosecution must prove to sustain a

conviction.” Id. at 2248 (internal quotation marks and citations omitted). The

means, however, “are mere real-world things—extraneous to the crime’s legal

requirements.” Id. Stated differently, they are “[h]ow a given defendant actually

perpetrated the crime.” Id. at 2251. If the listed items are “elements,” the statute is

divisible, and the court considers the particular elements that were necessarily proven

to support the defendant’s prior conviction (i.e., the court applies the modified

categorical approach). Titties, 852 F.3d at 1266–67. If the listed items are “means,”

the statute is indivisible, and the court considers all items when considering the prior

conviction. Id. at 1267-68.

                                            9
      There are three general tools courts use to decide whether listed items in an

alternatively phrased criminal law are elements or means: (1) the statutory text;

(2) state court decisions; and (3) the record of the prior conviction itself. Id. at 1267–

68. The text of Den. § 38-71 is not particularly helpful here. First, Den. § 38-71

does not separate the listed items into different subsections; the listed items appear in

the same sentence in the same paragraph. Second, the listed items do not “carry

different punishments,” which would have indicated that they were elements.

Mathis, 136 S. Ct. at 2256. Nor is there “a state court decision [that] definitively

answers the question.” Id. The parties have not cited any Colorado case that would

apply here, and we likewise could fine none.

      Instead, the government relies on the third tool—“the record of a prior

conviction itself.” Titties, 852 F.3d at 1268 (quoting Mathis, 136 S. Ct. at 2256).

This third inquiry is limited to a narrow set of record documents approved by the

Supreme Court in Shepard v. United States, 544 U.S. 13 (2005): “the terms of the

charging document, the terms of a plea agreement or transcript of colloquy between

judge and defendant in which the factual basis for the plea was confirmed by the

defendant, or some comparable judicial record of this information.”3 Id. at 26; see

also Titties, 852 F.3d at 1266 n.9 (listing “charging documents, plea agreements,

      3
        Although the Supreme Court has not held that this list is exhaustive, it has
rebuffed “argu[ments] for a wider evidentiary cast . . . going beyond conclusive
records made or used in adjudicating guilt and looking to documents submitted to
lower courts even prior to charges.” Shepard v. United States, 544 U.S. 13, 21
(2005).


                                           10
transcripts of plea colloquies, findings of fact and conclusions of law from a bench

trial, and jury instructions and verdict forms”) (quoting Johnson v. United States, 559

U.S. 133, 144 (2010)).

      Here, the government contends that “Abeyta’s municipal violation record

confirms that specific conduct is an element.” Aple. Br. at 12. More precisely, the

government relies on a docket sheet that describes Abeyta’s Den. § 38-71 conviction

as “DESTRUCTION OF PRIVATE PROPERTY.” Id.; Aplt. App., Vol. I at 46. A

docket sheet, however, is insufficient to show that a listed item in an alternatively

phrased statute is an element (rather than a means) of a crime. See United States v.

Enrique-Ascencio, 857 F.3d 668, 677 (5th Cir. 2017) (“Docket sheets and case

summaries also are not Shepard-approved documents because they were prepared by

court clerical staff not judges.” (internal quotation marks omitted)). This is because

Shepard documents are limited to “conclusive records made or used in adjudicating

guilt.” 544 U.S. at 21. Docket sheets fall far short of this standard.

      Because the docket sheet does not “satisfy ‘Taylor’s demand for certainty’

when determining whether a defendant was convicted of a generic offense,” Mathis,

136 S. Ct. at 2257 (quoting Shepard, 544 U.S. at 21), we cannot employ the modified

categorical approach here. Consequently, we must examine Den. § 38-71 as a whole,

under the categorical approach.




                                           11
D.    Abeyta’s Den. § 38-71 conviction should not have counted toward his
      guideline calculation.

      Before the district court, the government argued that Abeyta’s local ordinance

violation is also a violation under state criminal law (thus, meeting the exception to

the exception) because a violation of Den. § 38-71 is also a violation of Colo. § 18-4-

501, entitled “Criminal mischief.” That statute states:

             A person commits criminal mischief when he or she knowingly
             damages the real or personal property of one or more other
             persons, including property owned by the person jointly with
             another person or property owned by the person in which another
             person has a possessory or proprietary interest, in the course of a
             single criminal episode.

Colo. § 18-4-501(1) (the “Colorado criminal mischief statute”). On appeal, the

government also relies on Colo. § 18-4-509, entitled “Defacing property—

definitions,” which states:

             Any person who defaces or causes, aids in, or permits the
             defacing of public or private property without the consent of the
             owner by any method of defacement, including but not limited to
             painting, drawing, writing, or otherwise marring the surface of
             the property by use of paint, spray paint, ink, or any other
             substance or object, commits the crime of defacing property.

Colo. § 18-4-509(1)(b) (the “Colorado defacing property statute”).

      Although the government failed to raise the Colorado defacing property statute

before the district court, the government points out that we can exercise our

discretion to consider an alternative theory when “the appellant has had a fair

opportunity to address that ground.” United States v. Damato, 672 F.3d 832, 844

(10th Cir. 2012) (quoting Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir.


                                          12
2009)). We exercise our discretion to reach the government’s alternative argument

because, even considering both Colorado statutes, the elements of Den. § 38-71 are

broader than Colorado criminal law. See id. at 845 (“Because we reject the

government’s theory on appeal, . . . we exercise our discretion to consider [the

government’s alternative theory].”).

      Applying the categorical approach, the government argues that the elements of

Den. § 38-71 fit within the elements of the Colorado criminal mischief statute and the

Colorado defacing property statute. In essence, the government argues that the two

Colorado statutes, together, cover all possible illegal conduct under Den. § 38-71.4

      In relevant part, Den. § 38-71(a) makes it “unlawful for any person knowingly

to damage, deface, destroy or injure” another person’s property. And Den. § 38-

71(b) defines “deface” as “writing, painting, inscribing, drawing, scratching or

scribbling upon any wall or surface owned, operated or maintained by any person,

unless there is written permission for said writing, painting, inscribing, drawing,

scratching or scribbling.”

      The government essentially breaks the alternatively phrased part of Den. § 38-

71(a) into two parts: (1) “damage, . . . destroy or injure,” and (2) “deface.” The first

part, the government argues, is covered by the Colorado criminal mischief statute,



      4
        The government does not cite any authority for its ability to combine two
separate criminal statutes as the umbrella state law, under which all of Den. § 38-71
(arguably) fits. Because Abeyta does not contend otherwise, we do not reach this
question.


                                           13
which makes it a crime to “knowingly damage the real or personal property of one or

more other persons.”5 Colo. § 18-4-501. The second part, the government argues, is

covered by the Colorado defacing property statute, which criminalizes “the defacing

of public or private property without the consent of the owner.” Colo. § 18-4-

509(1)(b).

      Abeyta’s appeal focuses on the second part, and how it sweeps more broadly

than the Colorado defacing property statute:

             Section 38-71 criminalizes defacing property unless “there is
             written permission for” the defacement (emphasis added). The
             statute newly raised by the government, on the other hand,
             criminalizes defacement “without the consent of the owner.”
             [Colo.] § 18-4-509(1)(b) (emphasis added).

Aplt. Reply at 1–2. Thus, Abeyta argues that the Colorado defacing property

statute’s phrase “without the consent of the owner,” Colo. § 18-4-509(1)(b),

encompasses forms of consent beyond written consent, criminalizing less conduct

than Den. § 38-71. For example, “one who defaces property with the oral (or

implied) consent of the owner has violated [Den. §] 38-71 but would also escape

liability under [Colo. §] 18-4-509(1)(b).” Id. at 2.

      We agree. The term “consent” usually encompasses more than written

permission. See, e.g., Consent, Black’s Law Dictionary (10th ed. 2014) (defining

“consent” as a “voluntary yielding to what another proposes or desires; agreement,

      5
        The government does not explain how “damage, . . . destroy or injure” in
Den. § 38-71 can all fit under “damage” in Colo. § 18-4-501. Because Abeyta does
not argue otherwise, we do not reach this question.


                                           14
approval, or permission regarding some act or purpose, esp. given voluntarily by a

competent person; legally effective assent”). And, as Abeyta notes, “when the

Colorado legislature wants to limit consent to written consent, it does so expressly.”

Aplt. Reply at 3 (citing Colo. §§ 18-4-511(2)(c), 18-5-504, among other Colorado

statutes).

       At oral argument, the government cited Gonzales v. Duenas-Alvarez, 549 U.S.

183 (2007), for the proposition that Abeyta must show a realistic probability that the

City of Denver would prosecute a defendant who violated Den. § 38-71 and had

previously obtained oral, but not written, permission. In relevant part, Duenas-

Alvarez held:

                [T]o find that a state statute creates a crime outside the generic
                definition of a listed crime in a federal statute requires more than
                the application of legal imagination to a state statute’s language.
                It requires a realistic probability, not a theoretical possibility, that
                the State would apply its statute to conduct that falls outside the
                generic definition of a crime. To show that realistic probability,
                an offender, of course, may show that the statute was so applied
                in his own case. But he must at least point to his own case or
                other cases in which the state courts in fact did apply the statute
                in the special (nongeneric) manner for which he argues.

Id. at 193 (emphasis added).

       But “[t]his is not a case where we need to imagine hypothetical . . . facts to

take [Den. § 38-71] outside [the Colorado defacing property statute’s] ambit.”

Titties, 852 F.3d at 1274 & n.21 (rejecting the government’s reliance on Duenas-

Alvarez). The local ordinance explicitly states that written permission would excuse

the defacement, whereas the Colorado defacing property statute states that


                                               15
“consent”—without qualification—would excuse the defacement. Compare Den. §

38-71, with Colo. § 18-4-509(1)(b). And “[t]he Government gives no persuasive

reason why we should ignore this plain language to pretend the statute is narrower

than it is.” Titties, 852 F.3d at 1274.

       Because a Den. § 38-71 violation is a local ordinance violation that does not

necessarily violate Colorado state criminal law, Abeyta’s prior conviction does not

qualify as a countable misdemeanor or a petty offense under U.S.S.G. § 4A1.2(c).

And because Abeyta’s Den. § 38-71 conviction is not a countable offense, he did not

commit the instant offense while on probation for a countable offense under U.S.S.G.

§ 4A1.1(d).

                                          III

       We remand with direction to vacate Abeyta’s sentence and to resentence him.




                                          16
