                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        April 22, 2011
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                    TENTH CIRCUIT


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                             No. 10-6118
                                                      (D.C. No. 09-CR-00267-R-1)
 v.
                                                           (W. Dist.of Okla.)
 LONNIE LONTESE BOWLER,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before KELLY, HOLLOWAY and LUCERO, Circuit Judges**


       Defendant-Appellant Lonnie Lontese Bowler1 brings this direct criminal appeal in

which he challenges only the sentence imposed by the district court. Mr. Bowler was

sentenced to fifteen years’ imprisonment after the district court had determined that his

criminal history made him subject to that term as a mandatory minimum under the Armed


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
       1
      The record includes documents with other spellings of Mr. Bowler’s middle
name. For consistency, we use the spelling that appears in the district court record.
Career Criminal Act (ACCA). This appeal challenges that determination by the district

court. Our jurisdiction is based on 28 U.S.C. § 1291, and our review is guided by 18

U.S.C. § 3742(e) & (f).

                                             I

       On April 3, 2009, Mr. Bowler lost control of the car he was driving and crashed

into a roadside barrier. An Oklahoma Highway Patrol trooper investigated the accident

and, based on his observations at the scene, arrested Mr. Bowler for driving under the

influence of alcohol. A loaded pistol was found in the subsequent search of Mr. Bowler’s

car. Mr. Bowler admitted that the gun was his and that he had previously been convicted

of a felony. He was later indicted by a federal grand jury on one count of possession of a

firearm after a former felony conviction, a violation of 18 U.S.C. § 922(g)(1).

       Mr. Bowler pleaded guilty to the charge without benefit of a plea agreement. The

presentence report (PSR) showed that Mr. Bowler had a number of juvenile offenses,

beginning with a deferred sentence arising from a burglary committed when Mr. Bowler

was ten years old. We need not recite all of the offenses in the record but will note the

two that are relevant to this appeal. In December 1992, Mr. Bowler was adjudged

delinquent after having pleaded guilty to two offenses, one that he committed while he

was still eleven and one that he committed just days after his twelfth birthday. The

second of those offenses is discussed at some length below. For now, we note that the

PSR reflected that Mr. Bowler had pleaded guilty to assault and battery with a dangerous

weapon.

                                            -2-
       In April 1993, Mr. Bowler was again adjudicated delinquent based on his guilty

plea to the offense of manufacturing an explosive device. The conduct on which that

adjudication was based had occurred in June 1992, when Mr. Bowler was eleven years

old. As we shall discuss, either one of these two adjudications – for assault and battery

with a dangerous weapon or for manufacturing an explosive device – when combined

with two qualifying adult convictions may put Mr. Bowler in the category of an armed

career criminal, thus requiring the mandatory prison term imposed by the district court.

The ACCA does not permit courts to consider Mr. Bowler’s extremely youthful age at the

time of the juvenile offenses.

       We need not list details of seven subsequent juvenile offenses but note that one

was for first-degree robbery. Among Mr. Bowler’s adult convictions are some apparently

minor offenses but also a drug offense, a conviction for robbery in the first degree

(committed when he was seventeen years old), and one for domestic abuse by

strangulation.

       The PSR concluded that the advisory guidelines range was 151 to 188 months.

More importantly for our purposes, the PSR also concluded that the ACCA required the

mandatory minimum sentence of fifteen years based on two of the prior adult convictions

– robbery in the first degree and domestic abuse by strangulation; and two of the juvenile

adjudications – manufacturing an explosive device and assault and battery with a

dangerous weapon.

       During the sentencing proceedings, counsel for Mr. Bowler challenged the use of

                                            -3-
the two listed juvenile adjudications as predicate offenses for application of the ACCA’s

mandatory minimum sentence. The district judge rejected the arguments and sentenced

Mr. Bowler as recommended in the PSR. On appeal, Mr. Bowler again challenges the

determination that the two juvenile adjudications qualified as predicate offenses and

mandated the fifteen-year sentence.

                                              II

       Mr. Bowler’s appellate arguments raise issues of statutory construction which we

review de novo. The statute under which he was sentenced provides in pertinent part:

              (e)(1) In the case of a person who violates section 922(g) of this title
       and has three previous convictions by any court referred to in section
       922(g)(1) of this title for a violent felony or a serious drug offense, or both,
       committed on occasions different from one another, such person shall be
       fined under this title and imprisoned not less than fifteen years . . . .

              (2) As used in this subsection –

              ....

              (B) the term “violent felony” means any crime punishable by
       imprisonment for a term exceeding one year, or any act of juvenile
       delinquency involving the use or carrying of a firearm, knife, or destructive
       device that would be punishable by imprisonment for such term if
       committed by an adult, that –

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

                     (ii) is burglary, arson, or extortion, involves use of explosives,
       or otherwise involves conduct that presents a serious potential risk of
       physical injury to another; and

            (C) the term “conviction” includes a finding that a person has
       committed an act of juvenile delinquency involving a violent felony.

                                              -4-
18 U.S.C. § 924(e).

                                              A

       Mr. Bowler does not dispute that the two specified adult convictions were “violent

felonies” within the meaning of the statute. Because the fifteen-year sentence is the

mandatory minimum for any defendant with three qualifying convictions, if either one of

the juvenile offenses was properly counted, then the sentence must be affirmed. The

issue, then, is whether one of the two juvenile offenses was a “violent felony” within the

meaning of the statute. We first address the assault and battery with a dangerous weapon

charge and conclude that it was not shown to come within the ACCA’s definition of a

violent felony.

       Although common sense might seem at first blush to resolve this question – assault

and battery with a dangerous weapon certainly sounds like a violent crime – our inquiry

must go deeper. As quoted supra, the statute provides that a juvenile offense counts as a

“violent felony” only if it is one “involving the use or carrying of a firearm, knife, or

destructive device” (and if the offense meets other criteria as well, ones which we need

not repeat as they are not at issue before us). We turn, then, to the statute proscribing

assault and battery with a dangerous weapon.

       The Oklahoma law applicable at the time to that crime provided:

               Every person who, with intent to do bodily harm and without
       justifiable or excusable cause, commits any assault, battery, or assault and
       battery upon the person of another with any sharp or dangerous weapon, or
       who, without such cause, shoots at another, with any kind of firearm or air
       gun or other means whatever, with intent to injure any person, although

                                              -5-
       without the intent to kill such person or to commit any felony, upon
       conviction is guilty of a felony . . . .

21 Okla. Stat. § 645 (1991). Under that statute, a dangerous weapon could be metal

“knucks,” Reardon v. Oklahoma, 51 Okla. Crim. 432, 2 P.2d 100 (1931), or a beer bottle,

Bald Eagle v. Oklahoma, 355 P.2d 1015 (Okla. Crim. App. 1960). Thus it is obvious that

the statute does not require, as an element, the use of a firearm.

       Mr. Bowler’s challenge focuses on how the district court reached its determination

that the juvenile adjudication nevertheless involved the use of a firearm. This is a legal

question, not a question of fact, because of the limited nature of the inquiry the court is to

undertake:

       In addressing that argument and determining whether a prior conviction
       falls under the ACCA, we apply a categorical approach, generally looking
       only to the fact of conviction and the statutory definition of the prior
       offense, and do not generally consider the particular facts disclosed by the
       record of conviction. That is, we consider whether the elements of the
       offense are of the type that would justify its inclusion within the ACCA,
       without inquiring into the specific conduct of this particular offender.

United States v. West, 550 F.3d 952, 957 (10th Cir. 2008) (internal citations and quotation

marks omitted; emphasis in original). This categorical approach will not suffice in this

case, however, because it is clear that the Oklahoma statute which forbids assault and

battery with a dangerous weapon does not require the use of a “firearm, knife, or other

destructive device” as the ACCA requires.

       When, as here, a criminal statute encompasses conduct within the ACCA’s

definition of “violent felony” and also conduct that would not satisfy the definition, then


                                             -6-
we employ a modified categorical approach. Id. Using that approach with a prior

conviction obtained by way of a guilty plea, as was the conviction we deal with here, we

may refer to “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 to some comparable judicial record of this information.”

Shepard v. United States, 544 U.S. 13, 26 (2005).

       We must determine what judicial records from the juvenile adjudication may

inform our inquiry. The original charging document, which carries the generic label of

“Petition” and which is the only one in our record, alleges that Mr. Bowler had committed

the offense of shooting with intent to kill in violation of 21 Okla. Stat. § 652.

       The disposition of the case, however, came upon the filing of a document, signed

by Mr. Bowler, his mother, his attorney, the state’s attorney and the judge. That

document is styled “Summary of Facts[:] Stipulation to Delinquent Petition.” In that

document (Stipulation), Mr. Bowler stated that he was charged with the felony of assault

and battery with a dangerous weapon. The government’s position on appeal – its only

argument that the sentence can be affirmed based on this assault and battery with a

dangerous weapon adjudication – is that Mr. Bowler admitted in this Stipulation that he

committed the delinquent act charged in the Petition. And the Petition charged that Mr.

Bowler and another “acting jointly, intentionally and wrongfully shot” a named victim

with a specifically described pistol and “with the intent to kill . . . .” This was the basis

for the district court’s ruling that the adjudication qualified as a violent felony under the

                                              -7-
ACCA.

       If we were persuaded by that argument, we would need go no further because such

an admission is the type of record that courts are to consider in the modified categorical

analysis. But the admission on which the government relies is by no means clear.

Further examination of the Stipulation shows ambiguity.

       First, we note that the admission on which the government relies is contained in

paragraph 11 of the Stipulation, which is a pre-printed, form document with blanks filled

in by hand. The pre-printed part of paragraph 11 asks: “Do you understand that by

stipulating to the petition you are admitting you did the delinquent act alleged?” The

hand-written response is: “Yes.” But there is no specific reference to the original

Petition in the document. Instead, the paragraph immediately preceding this admission

refers not to the original charge of shooting with intent to kill but to the charge of assault

and battery with a dangerous weapon. Paragraph 10 of the pre-printed form asks: “Do

you understand that you are charged with a delinquent act which if committed by an adult

would be the felony/misdemeanor act of” with a blank space left for description of the

charge. The response includes a circling of “felony” in the pre-printed question and this

statement: “A & B w/ Dangerous Weapon, and Breaking and Entering.”2

       Later in the Stipulation there is a question whether there has been an agreement

about the disposition of the case and, if so, “what is the agreement?” The hand-written


       2
       The breaking and entering charge was based on different conduct but resolved in
the same disposition. It is not relevant to the issue we address.

                                              -8-
response here states, in pertinent part: “92-2220 amended to A & B w/ dangerous

weapon.” The reference to 92-2220 is clearly to the Petition that charged shooting with

intent to kill. But how was 92-2220 amended? The record is silent but for a statement by

Mr. Bowler’s counsel at sentencing in the federal district court that there was no amended

charge. III R. 12. The basis for that statement is not explained.

       We faced a very similar situation in United States v. Bennett, 108 F.3d 1315 (10th

Cir. 1997). In the prior proceeding that was at issue in that case, Mr. Bennett had

originally been charged with first-degree burglary of a dwelling house, a charge that we

said clearly fit the applicable definition of “crime of violence.”3 But Mr. Bennett had

pleaded guilty to the reduced charge of second-degree burglary, which under Oklahoma

law is not limited to burglaries of dwellings. In that case, as in this one, our record did

not have the amended charging document which might have shed additional light on the

circumstances of the prior case. Noting the possibility that Mr. Bennett had pleaded to an

offense that did not fit the definition of crime of violence, we said that this meant that the

government had not met its burden of proving the sentence enhancement it sought. 108

F.3d at 1319.

       This case is not distinguishable from Bennett in any meaningful way. Here the


       3
        The sentence enhancement at issue in Bennett was not the one at issue here.
Rather, Mr. Bennett had been sentenced as a “career offender” pursuant to United States
Sentencing Guidelines § 4B1.1. 108 F.3d at 1316. That enhancement provision used the
term “crime of violence” rather than “violent felony.” Nevertheless, because the
modified categorical approach applies in the same way, we conclude that Bennett is
relevant precedent for applying that approach here.

                                              -9-
Stipulation strongly suggests that Mr. Bowler was pleading to an amended petition not in

the record, and not to the original Petition that appears in our record. Here, as in Bennett,

we may not speculate as to the content of any amended petition. See id. at 1318 (“even

knowledgeable speculation should not be added” to the analysis). Here, as in Bennett, we

cannot overlook the possibility that the defendant pleaded to an offense that did not fit the

description required by the sentencing enhancement measure at issue. Here, as in

Bennett, the government therefore failed to carry its burden of proof that the sentencing

enhancement was appropriate.

       The district court erred by basing its ruling on the assumption that Mr. Bowler had

admitted doing the acts alleged in the original Petition (shooting with intent to kill) in

disregard of the facts we have noted that cast grave doubt on that assumption. Mr.

Bowler did not admit that he was guilty of shooting with intent to kill, and it is unclear

what underlying facts, if any, were admitted because of the ambiguities in the Stipulation

that we have set out supra.

                                              B

       As we have noted, however, we must still affirm the sentence if the other juvenile

adjudication on which the government relies was shown to be for a violent felony within

the meaning of the statute. That adjudication was for the offense of manufacturing an

incendiary device with the intent to kill or injure another or to damage the property of




                                             -10-
another.4 In this case, we have no problem with an amended charge. Nor is there any

ambiguity in the “Summary of Facts [:] Stipulation To Delinquent Petition,” which is on

the same printed form as the Stipulation just discussed. The only question then, is

whether the acts alleged in the Petition and admitted in the Stipulation bring that offense

within the coverage of the ACCA.

       As quoted, supra, the ACCA’s definition of “violent felony” includes “any act of

juvenile delinquency involving the use or carrying of a . . . destructive device” that would

be punishable by more than one year in prison if committed by an adult. Comparing that

language with the language of the Petition in question, we see that the Petition does not

allege “use” or “carrying” of a destructive device. The Petition charged Mr. Bowler (and

another) with “manufacturing an incendiary device” and alleged that the two juveniles did

so “with the intent to kill, injure or intimidate a person, or damage the real or personal

property of another . . . .” Assuming arguendo that an “incendiary device” is a

“destructive device” within the meaning of the ACCA, we still have the problem that the

Petition does not allege the “use or carrying” of the device. Although this was brought to

the district judge’s attention by the argument by counsel for Mr. Bowler, the judge in his

oral ruling did not specifically address the point, saying only that “[c]learly, the statute is

       4
         The Petition cites 21 Okla. Stat. § 1767. No such statute existed at the time, a
substantial impediment to our task of reviewing the elements set out by the statute. The
district judge found that this was simply due to a typographical error, and the language of
the Petition does track closely the language of 21 Okla. Stat. § 1767.1(A)(4) (1991), as
the district judge noted. Given our disposition of this issue, we need not reach the
propriety of the district court’s assumption. We caution, however, that making
assumptions in this area is fraught with peril, as we discussed in Bennett.

                                              -11-
a charge that qualifies under the ACCA.” We must respectfully disagree with the district

judge because as we have noted, the language of the presumptively applicable Oklahoma

statute does not on its face qualify under the ACCA because it does not require the use or

carrying of the device.

       The government contends that the ACCA requires only that the juvenile

adjudication involve the use or carrying of the destructive device, not the actual use or

carrying of the device. The government relies on United States v. Nevels, 490 F.3d 800,

808 (10th Cir. 2007), but the government’s attempt to apply the holding and language of

that case to the instant case stretches past the breaking point. In that case Mr. Nevels had

committed two aggravated robberies at age eleven which were charged in a single

petition. In both counts, our court noted, it was alleged that Mr. Nevels and another had

committed robbery by “use of force, threats and intimidation with a deadly weapon, to-

wit: GUN” and thereby had put the victim “in reasonable fear of death.” 490 F.3d at

807.

       On appeal, Mr. Nevels argued that those adjudications should not have been used

as a predicate for the ACCA enhancement unless the district court determined that

Nevels, and not his companion, had carried or used the gun and that the gun had actually

been involved during the crimes. We first noted that the determinations that Mr. Nevels

contended should have been made were factual determinations that are outside the scope

of, and so in fact forbidden by, the modified categorical analysis we employ to decide

these issues. Id. at 808. The language the government quotes in its brief came after that

                                            -12-
explanation. We said that even if the district court did not believe that Mr. Nevels

himself had carried or used the firearm, “the ACCA only requires the juvenile

[adjudication] to ‘involv[e] the carrying or use of a firearm” – it does not require the

defendant to [have] personally carr[ied] or use[d] the firearm if the weapon was otherwise

‘involved’ in the act.” Id. (first alteration in original).

       Here, the charging document alleges only that Mr. Bowler “manufactured” an

incendiary device. There is no allegation that he or his companion actually intimidated

someone with the device. To hold that this language satisfies the statutory requirement of

“involving the use or carrying” of such a device would effectively delete the words “use”

and “carrying” from the statute. The government in effect asks us to assume that the

device was used or carried. This would plainly be improper in this criminal case.

       A recent decision from another circuit provides illuminating contrast for analysis

of the statutory language at issue. In United States v. Wright, 594 F.3d 259, 265-67 (4th

Cir.), cert. denied, 131 S.Ct. 507 (2010), the defendant had three prior juvenile

adjudications for burglary, and in each case he had stolen a firearm. On appeal from his

sentence under the ACCA, Mr. Wright argued that he did not “carry” the firearms by

stealing them. In rejecting his argument, the court in that case noted that a “burglary that

results in the theft of firearms necessarily involves carrying them, else the burglar would

be forced to leave his spoils at the scene of the crime.” Id. at 266. The court went on to

note that the term “carry” as used in section 924(c)(1) “requires knowing possession and

bearing, movement, conveyance, or transportation of the firearm in some manner.” Id.

                                              -13-
(quoting United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997)).

       In contrast, one can manufacture a destructive device without moving, conveying

or transporting it. The offense would appear to be complete once the device was made or

assembled, whether or not Mr. Bowler and his companion ever removed it from the place

of manufacture. And the record here provides no evidence that the device had been

removed from its place of manufacture.

       Nor is it logical to contend that manufacture of a destructive device inherently

involves its use. In the first place, if Congress had intended the statute to reach

manufacture or possession of a destructive device without any additional act, then surely

Congress knew how to express that intention. We do not presume Congress to have

added words with no meaning. Following that principle of statutory interpretation, the

Supreme Court unanimously held in construing the verb “use” in another subsection of

section 924 that a standard that would find “use” to have been established “in almost

every case by evidence of mere possession does not adhere to the obvious congressional

intent to require more than possession to trigger the statute’s application.” Bailey v.

United States, 516 U.S. 137, 144 (1995).5 We decline the government’s suggestion to

ascribe to “involving the use of” a meaning that would require no more than manufacture

or possession. Instead, like the Supreme Court in Bailey, we conclude that such a

construction would establish a standard that would be satisfied in almost every case by

       5
       Bailey was superseded by statute as we noted in United States v. Sanders, 26 Fed.
Appx. 802 (2001). We do not think that this in any way undermines the analysis of the
unanimous Court in its construction of the language of the statute before amendment.

                                             -14-
mere possession (or manufacture), despite the obvious congressional intent to require

more than that.

                                             C

       In conclusion, we find on careful examination of the record that the government

did not meet its burden of showing that either of the juvenile adjudications was for a

“violent felony” within the meaning of the ACCA. The district court’s holding that the

fifteen-year sentence was mandated by the ACCA was therefore error.

       Accordingly the sentence is reversed and the matter is remanded to the district

court for sentencing without application of the mandatory minimum provision of the

ACCA.

       IT IS SO ORDERED.

                                                               Entered for the Court

                                                               William J. Holloway, Jr.
                                                               Circuit Judge




                                            -15-
