                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        July 16, 2018
                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-5001

JESSE BUD LEAVERTON,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                       for the Northern District of Oklahoma
                         (D.C. No. 4:16-CR-00080-GKF-1)
                       _________________________________

William P. Widell, Jr., Assistant Federal Public Defender, Tulsa, Oklahoma (Barry L.
Derryberry, Assistant Federal Public Defender, Tulsa, Oklahoma; Julia L. O’ Connell,
Federal Public Defender, Tulsa, Oklahoma, with him on the briefs), for Defendant-
Appellant.

Timothy L. Faerber, Office of the United States Attorney, Tulsa, Oklahoma (Neal C.
Hong, Office of the United States Attorney, Tulsa, Oklahoma; Loretta F. Radford, Acting
United States Attorney, with him on the brief), for Plaintiff-Appellee.
                        _________________________________

Before LUCERO, HOLMES, and McHUGH, Circuit Judges.
                  _________________________________

LUCERO, Circuit Judge.
                    _________________________________

      Jesse Leaverton was convicted of three counts of bank robbery. At sentencing,

the district court concluded that 18 U.S.C. § 3559(c) applied because Leaverton had
been previously convicted of two serious violent felonies, enhancing his sentence

from a maximum of twenty years to a mandatory term of life imprisonment.

Leaverton now appeals, arguing that his prior conviction for Oklahoma manslaughter

does not qualify under § 3559(c). Exercising jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742, we reverse Leaverton’s sentence and remand to the district court

for resentencing.

                                            I

      Leaverton was convicted of three counts of bank robbery in violation of 18

U.S.C. § 2113(a). His Presentence Investigation Report (“PSR”) calculated a total

offense level of 27 and a criminal history category of III, resulting in an advisory

Guidelines range of 87 to 108 months. However, the government contended that

Leaverton was subject to a mandatory life sentence under 18 U.S.C. § 3559(c)(1).

That statute requires that anyone convicted of “a serious violent felony” who has two

or more prior convictions for serious violent felonies be sentenced to life

imprisonment. § 3559(c)(1). A serious violent felony is one that falls within a list of

enumerated offenses or is punishable by a term of imprisonment of at least ten years

and meets certain other criteria. § 3559(c)(2)(F).

      The sole point of contention was whether Leaverton’s prior conviction for

Oklahoma Manslaughter I qualified as a serious violent felony. That statute contains

three subsections. See Okla. Stat. tit. 21, § 711. The government argued that

Leaverton was convicted under a subsection that applies when a killing is

“perpetrated without a design to effect death, and in a heat of passion, but in a cruel

                                           2
and unusual manner, or by means of a dangerous weapon; unless it is committed

under such circumstances as constitute excusable or justifiable homicide.” Okla.

Stat. tit. 21, § 711(2). In support of its argument, the government attached a docket

sheet that described Leaverton as pleading guilty to “MANSLAUGHTER I,

SECTION #2, TITLE 711.”

         At sentencing, the district court found that Leaverton had been convicted under

subsection two. It held that this conviction qualified as a serious violent felony and

thus Leaverton met the requirements of § 3559(c). The court imposed a sentence of

life imprisonment. Leaverton timely appealed.

                                            II

         We review de novo whether a prior conviction qualifies as a serious violent

felony under § 3559(c). United States v. Cooper, 375 F.3d 1041, 1053 (10th Cir.

2004).

                                            A

         In determining whether a previous crime meets a statutory definition, there are

two potential approaches, “the categorical approach and the circumstance-specific

approach.” United States v. White, 782 F.3d 1118, 1130 (10th Cir. 2015). Under the

former, we look only to “the elements of the statute forming the basis of the

defendant’s conviction,” and if a statute is divisible, to “a limited class of

documents,” rather than the particular facts of a defendant’s conduct. Id. at 1130-31.

Under the latter, we “consider the facts and circumstances underlying an offender’s

conviction.” Id. at 1131 (quotation omitted). Both parties state that the categorical

                                            3
approach applies under § 3559(c), although our court has not expressly considered

the question. We agree.

      The definition of serious violent felony includes two subsections. The first

covers:

      a Federal or State offense, by whatever designation and wherever
      committed, consisting of murder (as described in section 1111);
      manslaughter other than involuntary manslaughter (as described in
      section 1112); assault with intent to commit murder (as described in
      section 113(a)); assault with intent to commit rape; aggravated sexual
      abuse and sexual abuse (as described in sections 2241 and 2242);
      abusive sexual contact (as described in sections 2244 (a)(1) and (a)(2));
      kidnapping; aircraft piracy (as described in section 46502 of Title 49);
      robbery (as described in section 2111, 2113, or 2118); carjacking (as
      described in section 2119); extortion; arson; firearms use; firearms
      possession (as described in section 924(c)); or attempt, conspiracy, or
      solicitation to commit any of the above offenses . . . .

§ 3559(c)(2)(F)(i). The second applies to:

      any other offense punishable by a maximum term of imprisonment of 10
      years or more that has as an element the use, attempted use, or
      threatened use of physical force against the person of another or that, by
      its nature, involves a substantial risk that physical force against the
      person of another may be used in the course of committing the offense.

§ 3559(c)(2)(F)(ii).

      As we have previously noted, “a reference to a corresponding section of the

criminal code strongly suggests a generic intent.” White, 782 F.3d at 1132. And

references to the elements of an offense are also highly indicative that the categorical




                                             4
approach applies. See United States v. Martinez-Hernandez, 422 F.3d 1084, 1087

(10th Cir. 2005). 1

       We must determine whether Leaverton’s prior conviction for manslaughter in

Oklahoma categorically qualifies as a serious violent felony. The Oklahoma statute

at issue provides:

       Homicide is manslaughter in the first degree in the following cases:

       1. When perpetrated without a design to effect death by a person while
       engaged in the commission of a misdemeanor.

       2. When perpetrated without a design to effect death, and in a heat of
       passion, but in a cruel and unusual manner, or by means of a dangerous
       weapon; unless it is committed under such circumstances as constitute
       excusable or justifiable homicide.

       3. When perpetrated unnecessarily either while resisting an attempt by the
       person killed to commit a crime, or after such attempt shall have failed.

Okla. Stat. tit. 21, § 711.

       Section 711 contains three alternative subsections under which a defendant

could be convicted. We accordingly consider whether the statute is divisible. A


       1
        We have previously held that the categorical approach does not apply in
determining whether a defendant has satisfied § 3559(c)(3)(A). United States v.
Mackovich, 209 F.3d 1227, 1240 (10th Cir. 2000). That subsection creates an
exception to the general definition of serious violent felony, providing that certain
robbery convictions do not qualify as serious violent felonies if a defendant can
prove by clear and convincing evidence that no firearm or threat was involved and
the offense did not result in serious bodily injury. However, use of the circumstance-
specific approach as to that exception does not require us to abandon the categorical
approach under § 3559(c) generally. See White, 782 F.3d at 1135 (“Congress
intended courts to apply a categorical approach to sex offender tier classifications
designated by reference to a specific federal criminal statute, but to employ a
circumstance-specific comparison for the limited purpose of determining the victim’s
age.”).
                                            5
divisible statute “sets out one or more elements of the offense in the alternative.”

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

Courts considering a prior conviction under a divisible statute apply the “modified

categorical approach” to “identify the elements of the crime of conviction.” Id.

(quotation omitted). The modified categorical approach applies only when a statute

sets out alternative elements, rather than alternative means. Id. “Elements are the

constituent part of a crime’s legal definition, the things the prosecution must prove

beyond a reasonable doubt.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016).

Means are merely the facts underlying the crime, “extraneous to the crime’s legal

requirements.” Id.

      We conclude that Oklahoma’s manslaughter I statute is divisible. Although

the text of the statute is not dispositive, Oklahoma’s Uniform Jury Instructions

indicate that each subsection requires proof of a different set of elements. Compare

OUJI-CR 4-94 (instructions for subsection 1), with OUJI-CR 4-95 (instructions for

subsection 2), and OUJI-CR 4-102 (instructions for subsection 3). And the

Oklahoma Court of Criminal Appeals (“OCCA”) has specified the “elements” of the

particular subsection of manslaughter in considering the adequacy of evidence. See

Barnett v. State, 271 P.3d 80, 86-87 (Okla. Crim. App. 2012). Because the statute is

divisible, the modified categorical approach applies.

      In employing the modified categorical approach, we “consult record

documents from the defendant’s prior case for the limited purpose of identifying

which of the statute’s alternative elements formed the basis of the prior conviction.”

                                           6
Titties, 852 F.3d at 1266. Courts may look to charging documents, jury instructions,

a “statement of factual basis for the charge, shown by a transcript of plea colloquy or

by written plea agreement presented to the court.” Shepard v. United States, 544

U.S. 13, 20 (2005) (citation omitted). However, other documents submitted to the

court, such as police reports, may not be considered. Id. at 21. The analysis must

“be confined to records of the convicting court approaching the certainty of the

record of conviction.” Id. at 23.

      At sentencing, the district court relied on a minute entry from the state court’s

docket sheet that described Leaverton as pleading guilty to “MANSLAUGHTER I,

SECTION #2, TITLE 711.” Leaverton argues that this minute entry is insufficiently

reliable to establish the subsection under which he was convicted. The government

concedes that Leaverton’s prior conviction would not qualify as a serious violent

felony unless the court refers to the docket sheet to identify the particular subsection

forming the basis of his conviction.

      After briefing was complete in this case, we concluded that docket sheets do

not qualify as Shepard documents. See United States v. Abeyta, 877 F.3d 935, 942

(10th Cir. 2017). In Abeyta, the government sought to establish that a municipal

ordinance was divisible by pointing to the defendant’s docket sheet, which used one

particular statutory term from a disjunctive list. Id. at 941-42. We held that the

record was “insufficient to show that a listed item in an alternatively phrased statute

is an element (rather than a means) of a crime.” Id. at 942. We further stated



                                            7
“Shepard documents are limited to conclusive records made or used in adjudicating

guilt” and “[d]ocket sheets fall far short of this standard.” Id.

      The issue in this case differs somewhat from that presented in Abeyta. Rather

than using a docket sheet to show that a statute is divisible, the government urges us

to consider the docket sheet to show which subsection of a divisible statute formed

the basis of Leaverton’s prior conviction. We need not definitively determine

whether Abeyta’s holding regarding docket sheets is controlling as to the issue in this

case. Even if we could determine that Leaverton committed a homicide “without a

design to effect death, and in a heat of passion, but in a cruel and unusual manner, or

by means of a dangerous weapon” but not “under such circumstances as constitute

excusable or justifiable homicide,” Okla. Stat. tit. 21, § 711(2), we would be left to

consider whether his offense qualifies as a serious violent felony under

§ 3559(c)(2)(F)(i). The district court concluded that his prior conviction constituted

one of the statute’s enumerated offenses, “manslaughter other than involuntary

manslaughter (as described in section 1112).” § 3559(c)(2)(F)(i). The federal

definition of manslaughter is as follows:

      Manslaughter is the unlawful killing of a human being without malice. It is
      of two kinds:
      Voluntary—Upon a sudden quarrel or heat of passion.
      Involuntary—In the commission of an unlawful act not amounting to a
      felony, or in the commission in an unlawful manner, or without due caution
      or circumspection, of a lawful act which might produce death.

18 U.S.C. § 1112(a).




                                            8
      Leaverton argues that § 3559(c)(2)(F)(i) requires that the crime of conviction

be equivalent to voluntary federal manslaughter. That is, the statute’s parenthetical

“(as described in section 1112)” modifies both nouns that appear before it:

“manslaughter” and “involuntary manslaughter.” The government argues that the

parenthetical refers only to “involuntary manslaughter,” such that “manslaughter” is

not limited to the federal definition set out in § 1112. We agree with the

government’s interpretation. That reading is consistent with “the grammatical rule of

the last antecedent, according to which a limiting clause or phrase should ordinarily

be read as modifying only the noun or phrase that it immediately follows.” Jama v.

Immigration & Customs Enf’t, 543 U.S. 335, 343 (2005) (quotation and alteration

omitted). Although the last antecedent rule is by no means absolute, see Payless

Shoesource, Inc. v. Travelers Cos., Inc., 585 F.3d 1366, 1371 (10th Cir. 2009), it

supports the more natural reading of the statute in this instance. Had Congress

intended Leaverton’s construction, it could have simply stated “voluntary

manslaughter (as described in section 1112).” We also note that the subsection at

issue includes other crimes to which parenthetical statutory references are not

attached. See § 3559(c)(2)(F)(i) (including kidnapping, extortion, arson, and

firearms use).

      We read the statute as including within the definition of “serious violent

felonies” the crime of “manslaughter” except involuntary manslaughter as described

in § 1112. But this reading does not end our analysis. Congress has adopted the

“general approach, in designating predicate offenses, of using uniform, categorical

                                           9
definitions.” Taylor v. United States, 495 U.S. 575, 590 (1990). Under this

approach, we do not simply apply an enhancement to any crime designated by a state

as “manslaughter.” See id. Instead, we treat enumerated offenses as referring to the

crime in “the generic sense in which the term is now used in the criminal codes of

most States.” Id. at 598. And to determine whether a state crime meets the generic

definition, “we look not to the facts of the particular prior case, but instead to

whether the state statute defining the crime of conviction categorically fits within the

generic federal definition.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)

(quotations omitted). “Accordingly, a state offense is a categorical match with a

generic federal offense only if a conviction of the state offense necessarily involved

facts equating to the generic federal offense.” Id. (quotation and alterations omitted).

      As the Fourth Circuit has explained, states vary considerably in defining

manslaughter. See United States v. Peterson, 629 F.3d 432, 436 (4th Cir. 2011). We

agree with that court that “the Model Penal Code provides the best generic,

contemporary, and modern definition, particularly because it has been widely

adopted.” Id.; see also Taylor, 495 U.S. at 598 n. 8 (referring to the Model Penal

Code (“MPC”) definition of burglary); United States v. Gomez-Leon, 545 F.3d 777,

791 (9th Cir. 2008) (employing the MPC definition of manslaughter). The MPC

defines “manslaughter” as a homicide “committed recklessly,” or a homicide that

would be murder except that it was “committed under the influence of extreme

mental or emotional disturbance for which there is reasonable explanation or

excuse.” Model Penal Code § 210.3 (1962). It defines murder as a homicide

                                            10
“committed purposely or knowingly” or “committed recklessly under circumstances

manifesting extreme indifference to the value of human life.” Id. § 210.2. A

defendant acts “recklessly” if “he consciously disregards a substantial and

unjustifiable risk” such as to constitute “a gross deviation from the standard of

conduct that a law-abiding person would observe.” Id. § 2.02(2)(c).

      Although § 711(2) bears some similarity to the second definition provided in

the MPC, the § 711(2) heat of passion element differs markedly from that applicable

to generic manslaughter. As we have previously explained, the majority view holds

that “heat of passion” does not “eliminate[] the requirement of an intentional or

reckless killing.” United States v. Serawop, 410 F.3d 656, 665 (10th Cir. 2005).

Instead, it “explains, or reduces, what would otherwise be murder to manslaughter.”

Id. at 665 n.6. As the OCCA has similarly acknowledged, “[m]ost jurisdictions hold

that first degree or voluntary manslaughter involves an intent to kill accompanied by

the ‘extenuating circumstance . . . that the defendant, when he killed the victim, was

in a state of passion engendered in him by an adequate provocation.’” Brown v.

State, 777 P.2d 1355, 1358 (Okla. Crim. App. 1989) (quoting W. LaFave & A. Scott,

Jr., Substantive Criminal Law § 7.10, at 252 (1986)). The MPC definition tracks this

majority view. See Model Penal Code § 210.3.

      Oklahoma has adopted the “minority view which requires that the homicide be

perpetrated ‘without a design to effect death’ to constitute first degree or voluntary

manslaughter.” Brown, 777 P.2d at 1358 (quoting § 711(2)). Under this approach,

“the passion must be so great as to destroy the intent to kill,” such that a defendant

                                           11
lacks the “ability to form such an intent or perceive of a grave risk.” Serawop, 410

F.3d at 665 n.6. Unlike generic manslaughter under a heat of passion theory, a

conviction under § 711(2) requires that the defendant did not intend to kill.

         Further, § 711(2) bears no resemblance to the reckless homicide theory of

manslaughter set forth in the MPC. Oklahoma courts have held that second degree

manslaughter, which applies when an individual kills through “culpable negligence,”

Okla. Stat. tit. 21, § 716, requires “reckless disregard for the safety of others,” Lester

v. State, 562 P.2d 1163, 1167 (Okla. Crim. App. 1977). But Oklahoma’s first degree

manslaughter statute makes no reference to recklessness. See Okla. Stat. tit. 21,

§ 711.

         Based on the foregoing analysis, we cannot say that a conviction under

§ 711(2) “necessarily involved facts equating to” generic manslaughter. 2 Moncrieffe,

569 U.S. at 190 (quotation and alteration omitted). Accordingly, we conclude that




         2
        Our conclusion differs from that of the Eighth Circuit, which recently held
that § 711(2) qualifies as a crime of violence under the residual clause of the United
States Sentencing Guidelines § 4B.1, because it “is almost identical to the federal
crime of ‘voluntary manslaughter.’” United States v. Steward, 880 F.3d 983, 988
(8th Cir. 2018). In reaching that conclusion, the Eighth Circuit acknowledged that
Oklahoma’s case law requires that “[t]he heat of passion must render the mind
incapable of forming a design to effect death,” but nevertheless disregarded this
requirement, on the basis that it “has been interpreted to further emphasize the
necessary level of passion.” Steward, 880 F.3d at 988 n.5 (quotations omitted). In
Serawop, however, our circuit explained that the minority view adopted in Oklahoma
“is inconsistent with the common law as we have interpreted it.” 410 F.3d at 665 n.6.
Our panel is bound by this clear precedent, which reasoned that the minority and
majority approaches are meaningfully distinct rather than merely different in
emphasis.
                                            12
Leaverton’s offense does not constitute manslaughter as that term is used in

§ 3559(c)(2)(F)(i). 3

                                            III

       For the reasons set forth above, we REVERSE and REMAND to the district

court for resentencing.




       3
         For the first time on appeal, the government argues that Leaverton’s prior
conviction qualifies under § 3559(c)(2)(F)(ii) as an offense “that has as an element
the use, attempted use, or threatened use of physical force against the person of
another.” Id. Although this court has discretion to consider new arguments for the
first time on appeal, Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir.
2016), we decline to do so. Given the complexity of the issue, we think it better to
permit the parties to fully brief the question and to permit the district court to rule in
the first instance.
                                            13
