PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

DAMINION T. TITTIES, a/k/a Damion 

Tyrone Tittle, a/k/a Damion Tyron Tittles, 

a/k/a Capone,

Defendant - Appellant.

No. 15-6236 

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE WESTERN DISTRICT OF OKLAHOMA 

(D.C. No. 5:15-CR-00018-R-1)

 

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

Appellant. 

Steven W. Creager, Assistant United States Attorney (Mark A. Yancey, United States 

Attorney, and Kerry Blackburn, Assistant United States Attorney, with him on the brief), 

Office of the United States Attorney, Oklahoma City, Oklahoma, appearing for Appellee. 

 

Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges. 

MATHESON, Circuit Judge. 

 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 24, 2017

Elisabeth A. Shumaker 

Clerk of Court
-2- 

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

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

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

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

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

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

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

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

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

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

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

sentence and remand for resentencing. 

I. BACKGROUND

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

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

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

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

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

 1

 Like the parties and the district court, we refer to the defendant by his proper last 

name of Tittle. 
-3- 

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

qualifying Oklahoma state convictions: 

1. unlawful distribution of cocaine; 

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

3. feloniously pointing a firearm. 

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

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

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

ACCA, see 18 U.S.C. § 924(e)(2)(B). 

Deciding whether a prior conviction qualifies as an ACCA predicate offense 

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

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

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

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

(1995).2

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

 2

 At the time of Mr. Tittle’s underlying conduct on June 7, 1995, the statute 

read in relevant part: 

It shall be unlawful for any person to willfully or without lawful cause 

point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or 

not, at any person or persons for the purpose of threatening or with the 

intention of discharging the firearm or with any malice or for any purpose 

of injuring, either through physical injury or mental or emotional 

intimidation, or for purposes of whimsy, humor or prank . . . . 

Continued . . . 
-4- 

2014), and held it could be violated in both violent and nonviolent ways. Id. at 646. As 

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

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

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

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

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

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

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

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

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

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

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

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

______________________________________ 

Cont. 

Okla. Stat. tit. 21 § 1289.16 (1995). The statute was amended, effective September 1, 

1995, by adding after the “whimsy, humor or prank” language: “or in anger or 

otherwise.” 1995 Okla. Sess. Laws 1205-06. The parties sometimes refer to the 

amended version of the law, see Aplt. Br. at 11 (Mr. Tittle); Oral Arg. at 29:30-41 

(Government), but we focus on the law as it applied to Mr. Tittle when he committed the 

offense. See United States v. Sturm, 672 F.3d 891, 897 n.5 (10th Cir. 2012) (en banc) 

(“Our analysis is limited to the version of the statute in effect at the time of the 

Defendants’ conduct.”). And in any event, this amendment does not affect our 

conclusion that Mr. Tittle’s conviction for violating § 1289.16 does not qualify as a 

“violent felony” under the ACCA because consideration of the amendment would only 

strengthen our conclusion. 
-5- 

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

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

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

136 S. Ct. at 2253. 

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

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

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

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

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

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

 

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

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

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

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

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

sentenced Mr. Tittle to 188 months in prison. 

 3

 The plea agreement’s factual summary includes other statements that were 

stricken by hand. Because we apply the categorical approach, we have no reason to 

examine this plea document or glean significance from these markings. 
-6- 

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

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

 

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

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

issue in this appeal. 

II. DISCUSSION

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

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

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

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

 4

 The Government initially argued Mr. Tittle could not appeal his sentence 

because his plea agreement waived his right to appeal. The Government filed a motion 

asking us to enforce the waiver and dismiss Mr. Tittle’s appeal. See generally 10th Cir. 

R. 27.3(A)(1)(d); United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) 

(discussing enforcement of appeal waivers). 

A separate motions panel of this court denied the Government’s motion. It 

determined Mr. Tittle’s waiver did not bar this appeal because “whether [his] sentence 

exceeds the applicable statutory maximum depends on the disposition of his challenge to 

the ACCA enhancement.” United States v. Titties, No. 15-6236, at 4 (10th Cir. May 18, 

2016) (order denying motion to enforce appeal waiver). The motions panel invited the 

Government to raise the waiver issue again “for fresh consideration and definitive 

disposition by the merits panel.” Id. at 5. 

The Government accepted that invitation in its merits briefing. See Aplee. Br. 

at 10-20. Mr. Tittle replied that the motions panel had correctly determined the waiver 

was unenforceable. See Aplt. Reply Br. at 1-3. After briefing, the Government filed a 

motion asking us to strike the appeal-waiver arguments from its brief and “proceed 

directly to the merits of the appeal.” Mtn. to Strike at 2. Mr. Tittle has expressed no 

objection. 

We grant the Government’s motion to strike and decline to address the appeal 

waiver. We proceed to the merits of Mr. Tittle’s sentencing appeal. 
-7- 

A. Standard of Review

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

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

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

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

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

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

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

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

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

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

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

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

categorical approach under Hood.

5

 

 5

 We reject the Government’s separate contention that we should not consider Mr. 

Tittle’s argument at all because he invited error. See United States v. DeBerry, 430 F.3d 

1294, 1302 (10th Cir. 2005) (“The invited-error doctrine prevents a party who induces an 

erroneous ruling from being able to have it set aside on appeal.” (quotations omitted)). 

The Government contends that Mr. Tittle invited any error because he requested that the 

district court use the modified categorical approach. 

Mr. Tittle responds he did not invite error when he correctly informed the district 

court that Hood required use of the modified categorical approach. He argues the 

invited-error doctrine does not apply when a party relied on settled law that changed 

while the case was on appeal. 

Continued . . . 
-8- 

We need not resolve this dispute. An illegal sentence—one “where the term of 

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

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

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

vacate his sentence under either standard of review. 

B. Legal Background

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

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

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

1. The ACCA Enhancement 

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

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

______________________________________ 

Cont. 

We agree with Mr. Tittle. We rejected a similar invited-error argument in Ray v. 

Unum Life Insurance Co., 314 F.3d 482, 486-87 (10th Cir. 2002). In Ray, the parties had 

assumed in the district court that one legal standard applied, but the law changed after 

appellate briefing. Id. at 486. We said “an intervening change in the law permits 

appellate review of an issue not raised below.” Id. at 487; see also Anixter v. Home-Stake 

Prod. Co., 77 F.3d 1215, 1222 (10th Cir. 1996) (“Although this argument was not raised 

below, inasmuch as [a new Supreme Court case] was decided after appellant filed her 

notice of appeal, we may consider changes in governing law arising during the pendency 

of the appeal.”). We also find persuasive the Eleventh Circuit’s refutation of the invitederror argument in United States v. Jones, 743 F.3d 826, 827-28 & n.1 (11th Cir. 2014) 

(rejecting government’s invited error argument, addressing defendant’s new argument 

based on intervening Supreme Court and circuit precedent, reviewing for plain error, and 

vacating defendant’s ACCA sentence). 
-9- 

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

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

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

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

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

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

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

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

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

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

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

(B) [T]he term “violent felony” means any crime punishable by 

imprisonment for a term exceeding one year . . . that— 

(i) has as an element the use, attempted use, or threatened use of 

physical force against the person of another[.] 

18 U.S.C. § 924(e)(2)(B)(i).6

 “[P]hysical force” in this definition “means violent force—

that is, force capable of causing physical pain or injury to another person.” Johnson v. 

United States, 559 U.S. 133, 140 (2010); see also United States v. King, 979 F.2d 801, 

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

 6

 The ACCA’s definition of violent felony also includes an “enumerated-offenses 

clause” and a “residual clause.” See 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court 

invalidated the residual clause as unconstitutionally vague in Johnson v. United States, 

135 S. Ct. 2551, 2563 (2015). Only the force clause is at issue here. 
-10- 

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

2. The Categorical and Modified Categorical Approaches 

The categorical and modified categorical approaches are not mutually exclusive 

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

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

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

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

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

comparison under the categorical approach.8

 

a. The categorical approach

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

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

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

definition of violent felony. If some conduct that would be a crime under the statute 

would not be a violent felony under the ACCA, then any conviction under that statute 

will not count toward an ACCA enhancement, regardless of whether the conduct that led 

 7

 The parties do not dispute that a conviction under § 1289.16 may be punished by 

more than a year in prison. See Okla. Stat. tit. 21 § 1289.17 (1995) (setting penalty of 

imprisonment for “not less than one (1) year nor more than ten (10) years”). 

8

 The categorical and modified categorical approaches are also used outside the 

ACCA context such as in applying Sentencing Guideline and immigration provisions. 

See, e.g., United States v. Taylor, 843 F.3d 1215 (10th Cir. 2016) (Sentencing 

Guidelines); Rangel-Perez v. Lynch, 816 F.3d 591 (10th Cir. 2016) (immigration). 
-11- 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 
-12- 

b. The modified categorical approach 

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

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

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

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

for a limited purpose. 

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

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

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

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

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

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

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

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

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

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

categorical approach. 

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

purpose of identifying which of the statute’s alternative elements formed the basis of the 
-13- 

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

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

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

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

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

to the ACCA definition. Id. at 2281. 

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

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

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

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

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

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

(quotations omitted). 

3. Mathis—Means and Elements

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

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

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

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

 9

 The Supreme Court has said courts may consult “charging documents, plea 

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

bench trial, and jury instructions and verdict forms.” Johnson, 559 U.S. at 144. 
-14- 

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

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

courts should take this step. 

a. Elements as the key to divisibility 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

conviction counts “if, but only if, its elements” satisfy the ACCA. Id. at 2247. 
-15- 

If the listed items are alternative means of satisfying an element, then the statute is 

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

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

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

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

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

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

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

ACCA’s operation.”). 

 b. Separating elements and means 

The Mathis decision identified several tools for deciding whether an alternatively 

phrased criminal law lists elements or means. 

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

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

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

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

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

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

means).” Id. 

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

kind exists, a sentencing judge need only follow what it says.” Id.
-16- 

Third, when “state law fails to provide clear answers,” federal courts “have 

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

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

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

not an element.” Id. at 2257.11 “Conversely, an indictment . . . could indicate, by 

referencing one alternative term to the exclusion of all others, that the statute contains a 

list of elements, each one of which goes toward a separate crime.” Id. 

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

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

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

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

 10 This “peek” at the record is different from the modified categorical approach. 

See Mathis, 136 S. Ct. at 2256-57. Unlike the modified categorical approach, which 

courts use to identify the particular elements in a divisible statute that underlie a 

defendant’s conviction, this look at the record addresses a threshold issue: whether the 

statute is divisible. Thus, this “peek at the record documents is for the sole and limited 

purpose of determining whether the listed items are elements of the offense.” Id.

(brackets and quotations omitted). “Only if the answer is yes can the court make further 

use of the materials” by applying the modified categorical approach. Id. at 2257. 

11 Likewise, the use of “a single umbrella term” in the charging document or 

instructions can reveal that the specific alternatives are means of satisfying a single 

element. Id. The dissent places great weight on the presence or absence of an “umbrella 

term,” see Dissent at 13 & n.13, but Mathis says this is just one of several ways the 

means/elements inquiry might be settled, see 136 S. Ct. at 2256-57. In Mathis itself, the 

Court took a different route and relied on a state supreme court decision holding the 

statutory alternatives were means. See 136 S. Ct. at 2256. We do not rely on an 

“umbrella term” for our analysis. 
-17- 

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

apply the enhancement). 

* * * * 

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

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

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

the categorical approach. 

C. Analysis

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

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

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

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

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

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

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

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

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

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

1. The Effect of Mathis

Mr. Tittle acknowledges that Hood determined the modified categorical approach 

applies to § 1289.16, but he argues that Mathis “requires reexamination of that 
-18- 

conclusion” because Hood did not consider whether § 1289.16’s alternative phrases are 

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

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

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

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

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

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

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

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

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

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

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

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

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

 12 When Hood was decided, Tenth Circuit law held the modified categorical 

approach applied regardless of whether a statute’s alternatives were elements or means. 

See Trent, 767 F.3d at 1058-61. Trent understood the Supreme Court’s discussion of 

“elements” in earlier cases to refer not to the “traditional view of what an element is” but 

rather to a broader meaning. Id. at 1059. In Mathis, the Supreme Court embraced the 

traditional view of elements and specifically abrogated Trent. See 136 S. Ct. at 2251 n.1, 

2254. 

The Government attempts to defend Hood’s use of the modified categorical 

approach by arguing that an “Alternative Analysis” section of Trent survived Mathis. 

But whether Trent’s alternative analysis survives is irrelevant here. What matters is the 

Supreme Court’s holding in Mathis that “[t]he first task” is “to determine whether [the 

Continued . . . 
-19- 

2. Okla. Stat. tit. 21 § 1289.16 Is Not Divisible 

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

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

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

charging document from his 1996 conviction. 

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

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

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

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

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

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

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

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

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

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

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

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

______________________________________ 

Cont. 

statute’s] listed items are elements or means.” Id. at 2256. Hood did not undertake that 

task, but we do in this opinion. 

13 This was true of the charging document in Hood. See 774 F.3d at 646. 
-20- 

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

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

§ 1289.16 provides in relevant part: 

It shall be unlawful for any person to willfully or without lawful cause 

point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or 

not, at any person or persons for the purpose of threatening or with the 

intention of discharging the firearm or with any malice or for any purpose 

of injuring, either through physical injury or mental or emotional 

intimidation, or for purposes of whimsy, humor or prank . . . . 

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

alternatives, but it is not clear whether they are different means to commit the same crime 

or whether they define different crimes such that a jury would have to agree on a 

particular alternative to convict.14 

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

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

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

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

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

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

 14 We limit our discussion to the alternative phrases addressing purpose because 

they are the source of the parties’ dispute and because resolution of this case requires us 

to go no further. We conclude the purpose phrases are alternative means. Because at 

least one of these means is non-violent under the ACCA, § 1289.16 can be violated 

without committing an ACCA violent felony. We therefore need not consider whether 

the other disjunctive phrases in the statute would similarly show that § 1289.16 is not 

categorically a violent felony. 
-21- 

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

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

the alternative phrases into a single improper purpose element. 

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

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

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

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

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

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

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

means of commission.”). 

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

guidance.15 The relevant instruction provides: 

No person may be convicted of pointing a firearm unless the State has 

proved beyond a reasonable doubt each element of the crime. These 

elements are: 

 15 In cases like Mr. Tittle’s where the defendant pled guilty and no jury 

instructions were given, the state’s uniform jury instructions can provide insight into the 

means/elements question. See, e.g., United States v. Harris, 844 F.3d 1260, 1266 n.2 

(10th Cir. 2017) (consulting Colorado jury instructions to conclude statute was 

indivisible); Gardner, 823 F.3d at 802-03 (consulting North Carolina pattern instructions 

to conclude offense was indivisible); United States v. Hamilton, __ F. Supp. 3d __, No. 

06-CR-188-TCK, 2017 WL 368512, at *10 (N.D. Okla. Jan. 25, 2017) (consulting 

Oklahoma Uniform Jury Instructions in means/elements analysis); United States v. 

Bouziden, No. CR-08-251-02-C, 2017 WL 149988, at *2 (W.D. Okla. Jan. 13, 2017) 

(same), appeal filed, No. 17-6031 (10th Cir. Jan. 31, 2017). 
-22- 

First, willfully; 

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

or unloaded; 

Third, at any person(s); 

Fourth, without lawful cause; 

Fifth, (for the purpose of threatening)/(with the intention of discharging 

the firearm)/(with any malice)/(for any purpose of injuring, either 

through physical injury or mental or emotional intimidation)/(for 

purposes of whimsy/humor/[a prank]/(in anger or otherwise).

16

Okla. Unif. Jury Instr. CR 6-42 (alterations in original). The instruction bunches together 

the statutory purpose alternatives into a single element. It does not suggest the jury 

would have to agree on a particular alternative to satisfy the fifth element. 

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

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

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

because Mathis’s third tool settles the issue. 

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

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

 16 The “in anger or otherwise” alternatives were added in a September 1995 

amendment to the statute. See supra note 2. 

17 Recall that this “peek” at the documents does not constitute application of the 

modified categorical approach. It merely helps answer the means/elements question, 

Continued . . . 
-23- 

That the said DAMION TYRONE TITTLE did wilfully [sic], feloniously 

and without lawful cause point a .380 caliber pistol . . . at [the victim], for 

the purpose of threatening and intimidating her, and with the unlawful, 

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

to injure the said [victim] physically, or for the purpose of mental or 

emotional intimidation, or whimsey [sic], humor or prank, 

. . . . 

contrary to the form of the statute in such case made and provided and 

against the peace and dignity of the State. 

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

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

reiterates the alternatives from the statute, “[t]hat is as clear an indication as any that each 

alternative is only a possible means of commission, not an element that the prosecutor 

must prove to a jury beyond a reasonable doubt.” 136 S. Ct. at 2257.18 

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

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

______________________________________ 

Cont. 

which in turn answers whether the modified categorical approach should be used at all. 

See Mathis, 136 S. Ct. at 2256-57; see also supra note 10. 

18 As the dissent sees it, a prosecutor hoping to maximize the state’s chances of 

winning a conviction might be expected to charge multiple statutory alternatives if each 

one is merely a means of committing the crime. See Dissent at 10-12. Regardless of 

what may have motivated the prosecutor in this case, Oklahoma clearly did charge 

multiple alternatives. We consider this significant because the dissent is right that 

“Mathis tells us to pay attention to whether the State has charged more than one 

alternative.” Id. at 10. Indeed, Mathis states this “is as clear an indication as any that 

each alternative is only a possible means of commission, not an element.” 136 S. Ct. 

at 2257. 
-24- 

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

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

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

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

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

 19 The Government argues that even if the district court erred in applying the 

modified categorical approach, it did not plainly err when it reasonably relied on Hood. 

We reject this argument because, as already discussed, an illegal sentence “trigger[s] per 

se, reversible, plain error.” Gonzalez-Huerta, 403 F.3d at 739 n.10. 

And in any event, the Government’s plain error arguments miss the mark. The 

district court’s reasonable reliance on Hood is beside the point. When the law changes on 

appeal, “it is enough that an error be ‘plain’ at the time of appellate consideration.” 

Johnson v. United States, 520 U.S. 461, 468 (1997); see also United States v. Madrid, 

805 F.3d 1204, 1212 (10th Cir. 2015) (explaining an error is plain “when case law alters 

the legal analysis between the time of trial and the time of appeal”); Morales-Fernandez 

v. INS, 418 F.3d 1116, 1123-24 (10th Cir. 2005) (holding the district court plainly erred 

under a new Supreme Court decision handed down while the case was pending on 

appeal). Mathis makes plain that the means/elements inquiry is the “threshold inquiry,” 

136 S. Ct. at 2256, and Hood did not take that step. 

The Government also contends that, even though § 1289.16’s alternatives 

“probably are means,” the statutory phrases may not plainly be means because the OCCA 

has not definitively answered the means/elements question. Oral Arg. at 27:54-28:22; see 

also Aplee. Br. at 37. But Mathis unambiguously instructs federal courts to settle, if 

possible, the means/elements issue when applying the ACCA even if there is no on-point 

state decision. See 136 S. Ct. at 2256-57 (instructing federal courts to examine record 

documents “if state law fails to provide clear answers”). More generally, the 

Government’s argument overstates the importance of having an on-point decision to 

satisfy the plain error standard. See Madrid, 805 F.3d at 1212 n.10 (“[A]n error may be 

plain even if . . . there are no . . . cases that have directly opined on the question. Indeed, 

even if there is a split among our sister circuits . . . that would not necessarily prevent us 

from concluding that . . . [there] was clear or obvious error.” (alterations in original) 

(quotations omitted)). Further, the Government’s point about uncertainty favors Mr. 

Tittle because the Government bears the burden of proving a prior conviction qualifies 

under the ACCA, see Delossantos, 680 F.3d at 1219, and we do not count a prior 

Continued . . . 
-25- 

3. Applying the Categorical Approach 

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

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

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

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

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

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

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

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

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

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

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

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

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

______________________________________ 

Cont. 

conviction if its ACCA qualification is suspect, Mathis, 136 S. Ct. at 2257 (discussing 

“Taylor’s demand for certainty”). 

In sum, the district court erred, though understandably so in light of Hood, by 

applying the modified categorical approach to this indivisible statute. The Government’s 

efforts to use the plain error standard to insulate that error are unavailing. 

20 See Brief for Appellant at 46-47, Hood, 774 F.3d 638 (No. 13-6182), 2013 WL 

6910087, at *46-47; Brief for Appellee at 46, Hood, 774 F.3d 638 (No. 13-6182), 2014 

WL 1400517, at *46. 
-26- 

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

approach. 774 F.3d at 646. 

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

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

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

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

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

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

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

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

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

4. Government’s Arguments 

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

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

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

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

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

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

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

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

essential to our analysis. That conclusion preceded our application of the modified 
-27- 

categorical approach, and we made clear our resort to the record documents was based on 

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

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

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

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

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

Hood. 

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

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

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

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

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

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

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

modified categorical approach . . . .”). 

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

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

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

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

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

608 F.3d 663 (10th Cir. 2010), supports its new position. We disagree. Ramon Silva
-28- 

does not stand for the proposition that pointing a gun at a person inherently involves the 

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

violent felony. 

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

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

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

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

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

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

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

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

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

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

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

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

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

force.’” Id. at 670-71. 

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

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

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

violated by threats of physical injury, but it is far broader, reaching actions taken for 
-29- 

“purposes of whimsy, humor or prank.” Okla. Stat. tit. 21 § 1289.16 (1995). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 21 Moncrieffe and the case it relied on, Gonzales v. Duenas-Alvarez, 549 U.S. 183, 

193 (2007), arose in the immigration context, but we have applied the “realistic 

probability” test in ACCA cases. See Harris, 844 F.3d at 1264; United States v. 

Cummings, 531 F.3d 1232, 1234 (10th Cir. 2008). 

22 See Fed. R. App. P. 28(j). 
-30- 

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

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

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

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

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

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

violent felony. 

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

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

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

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

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

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

ACCA was enough.23 

 23 Persuasive case law from other circuits is against the Government as well. See 

Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017) (“[The] sensible caution against crediting 

speculative assertions regarding the potentially sweeping scope of ambiguous state law 

crimes has no relevance to a case like this. The state crime at issue clearly does apply 

more broadly than the federally defined offense.”); Ramos v. U.S. Att’y Gen., 709 F.3d 

1066, 1072 (11th Cir. 2013) (“The statute’s language . . . creates the ‘realistic probability’ 

that [the state] will punish crimes that do qualify . . . and crimes that do not.”); JeanLouis v. Att’y Gen., 582 F.3d 462, 481 (3d Cir. 2009) (“[N]o application of ‘legal 

imagination’ to the Pennsylvania simple assault statute is necessary. The elements of [the 

crime] are clear . . . .”); United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en 

banc) (“Where . . . a state statute explicitly defines a crime more broadly than the generic 

Continued . . . 
-31- 

* * * * 

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

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

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

categorically a violent felony. 

5. Mr. Tittle’s Sentence Is Illegal 

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

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

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

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

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

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

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

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

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

______________________________________ 

Cont. 

definition, no ‘legal imagination’ is required to hold that a realistic probability exists that 

the state will apply its statute to conduct that falls outside the generic definition of the 

crime. The state statute’s greater breadth is evident from its text.” (citation omitted)); 

accord United States v. Aparicio-Soria, 740 F.3d 152, 158 (4th Cir. 2014) (en banc) 

(“We do not need to hypothesize about whether there is a ‘realistic probability’ that 

Maryland prosecutors will charge defendants engaged in non-violent offensive physical 

contact with resisting arrest; we know that they can because the state’s highest court has 

said so.” (emphasis added)). 
-32- 

the statutory maximum”). 

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

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

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

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

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

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

III. CONCLUSION

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

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

 

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

sentence violates due process. 
15-6236, United States v. Tittle

PHILLIPS, Circuit Judge, dissenting. 

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

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

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

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

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

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

BACKGROUND 

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

violation of 18 U.S.C. § 922(g)(1).1

 Though facing a sentence under the Armed Career 

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

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

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

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

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

felony under the ACCA. 

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

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

 1

 In exchange, the government abandoned its Superseding Indictment charging 

possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C. 

§ 841(a)(1), (b)(1)(A), and four counts of being a felon in possession of a firearm, in 

violation of 18 U.S.C. § 922(g)(1). 
2 

Carolyn Williams, for the purpose of threatening and intimidating her, and with the 

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

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

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

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

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

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

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

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

 life 

DTT.” Id. 

DISCUSSION 

1. Elements or Means? 

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

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

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

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

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

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

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

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

 2

 The word crazy was stricken from the sentence but is legible. 
3 

means—whimsy, humor, or prank—does not involve the threatened use of violent 

physical force. Majority Op. at 14. 

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

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

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

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

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

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

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

than whimsy, humor, or prank. 

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

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

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

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

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

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

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

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

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

It shall be unlawful for any person to willfully or without lawful cause 

point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or 

not, at any person or persons [1] for the purpose of threatening or [2] with 

the intention of discharging the firearm or [3] with any malice or [4] for any 
4 

purpose of injuring, either through physical injury or mental or emotional 

intimidation, or [5] for purposes of whimsy, humor or prank . . . . 

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

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

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

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

felony that his own admission proves he necessarily committed.3

2. Mathis and Shepard

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

qualified as a violent felony under the ACCA: 

Any person, having the intent to commit a felony, assault or theft therein, 

who, having no right, license or privilege to do so, enters an occupied 

structure, such occupied structure not being open to the public, or who 

remains therein after it is closed to the public or after the person’s right, 

license or privilege to be there has expired, or any person having such 

intent who breaks an occupied structure, commits burglary. 

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

as follows: 

An “occupied structure” is any building, structure, appurtenances to 

buildings and structures, land, water or air vehicle, or similar place adapted 

for overnight accommodation of persons, or occupied by persons for the 

purpose of carrying on business or other activity therein, or for the storage 

or safekeeping of anything of value. Such a structure is an “occupied 

 3

 In Taylor v. United States, 495 U.S. 575, 602 (1990), the Court allowed the 

modified categorical approach “in a narrow range of cases where a jury was actually 

required to find all the elements of generic burglary.” In other words, the elements-based 

test ensured that a defendant had necessarily been convicted of a violent felony as defined 

in the ACCA. Mathis goes past that useful mechanism, disallowing violent-felony 

convictions even when a single qualifying means is charged. See 136 S. Ct. at 2259, 2266 

(Breyer, J. dissenting). 
5 

structure” whether or not a person is actually present. However, for 

purposes of chapter 713, a box, chest, safe, changer, or other object or 

device which is adapted or used for the deposit or storage of anything of 

value but which is too small or not designed to allow a person to physically 

enter or occupy it is not an “occupied structure”. 

Id. § 702.12. 

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

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

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

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

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

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

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

U.S. 13, 31 (2005). 

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

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

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

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

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

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

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

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

which Shepard admitted the generic fact.” Id. at 25 (emphasis added). From this, we can 
6 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 4

 In Schad, a 5-4 decision, the Court affirmed a first-degree murder conviction 

even though the jury instructions did not require the jurors to agree “whether the 

defendant was guilty of premeditated murder or felony murder.” 501 U.S. at 627. The 

Court rejected the dissent’s view that the jury must say what separate statutory means of 

committing a crime it relied upon to find guilt. Id. at 635-37. The Court reasoned that 

statutory alternatives are not always “independent elements defining independent crimes 

under state law.” Id. at 636. The Court looked to whether a State court had determined 

“that certain statutory alternatives are mere means of committing a single offense, rather 

than independent elements of the crime.” Id. Thus, 13 years before Shepard, the Court 

had fully addressed the elements/means question. That it saw no need to apply this test in 

Shepard further supports the view that Shepard’s finding of elements remains good law. 
7 

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

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

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

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

recognized the importance of this distinction. 

3. The Mathis Tools 

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

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

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

use in resolving the elements/means issue. 

a. State-Law Sources 

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

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

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

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

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

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

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

 5

 The Mathis dissent notes that “there are very few States where one can find 

authoritative judicial opinions that decide the means/element question.” 136 S. Ct. at 

2264 (Breyer, J. dissenting). In fact, addressing the question in Mathis, the government 

found just two States whose courts had answered the elements/means question for their 

burglary statutes. Id. 
8 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 6

 In Duncan, the Iowa court’s tolerance for lack of jury unanimity exceeded that at 

issue in Schad. In Duncan, the court permitted the jury to convict a defendant of “one 

overall burglary” even if jurors split over whether the defendant had burgled a marina or 

instead a boat in the dock, two different events. 312 N.W.2d at 520, 523-24. 
9 

The second Mathis tool asks what the state statute’s text reveals on the 

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

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

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

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

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

§ 952).7

 

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

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

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

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

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

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

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

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

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

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

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

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

 7

 In part, this California statute requires that charging language must be “in 

ordinary and concise language without any technical averments or any allegations of 

matter not essential to be proved.” Cal. Penal Code Ann. § 952. Neither party has 

directed us to any similar Oklahoma statute. 
10 

merely means. If individual jurors may pick and choose which alternative is proved, it 

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

b. Non-State-Law Sources 

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

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

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

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

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

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

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

“an indictment and jury instructions could indicate, by referencing one alternative term to 

the exclusion of all others, that the statute contains a list of elements, each one of which 

goes toward a separate crime.” Id.

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

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

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

charging language should matter so much.9

 After all, different prosecutors will charge the 

 8

 This approach yields much authority to prosecutors to say what the law is. And, 

as we know from other ACCA cases, some prosecutors aren’t precise in their charging 

documents, using forms incorporating the entire criminal statute underlying the charge. 

9

 I recognize that when “pressed” at oral argument, the government’s attorney 

(after a long pause) agreed with the questioning judge that the Oklahoma statute provides 

means and not elements, relying on the charging document’s listing multiple alternatives. 

Majority Op. at 19. I remain puzzled by this concession. 
11 

same crime narrowly or broadly. Here, the prosecutor charged some alternatives, and not 

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

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

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

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

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

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

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

suddenly became elements? 

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

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

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

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

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

 10 Again, Mr. Tittle was charged with pointing a weapon at Carolyn Williams “[1] 

for the purpose of threatening and intimidating her,” “[2] with the unlawful, malicious 

and felonious intent then and there on the part of said defendant to injure the said Carolyn 

Williams physically, or [3] for the purpose of mental or emotional intimidation, or [4] 

whimsey [sic], humor, or prank.” App., Vol. 1 at 78. 

11 In Shepard, all five complaints from his Massachusetts burglaries “merely 

charged Shepard in the boilerplate language of the statutes, leaving it unclear just what 

kind of structure Shepard had entered.” United States v. Shepard, 348 F.3d 308, 309 (1st 

Cir. 2003). The two Massachusetts statutes forbade breaking and entering into a building, 

ship, vessel, or vehicle, with intent to commit a felony. Id. 
12 

otherwise).”

12 Id. at 21-22 (quoting Okla. Unif. Jury Inst. CR 6-42). From this language 

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

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

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

satisfy the fifth element.” Id. 

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

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

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

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

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

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

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

alternatives as an unbroken group. 

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

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

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

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

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

 12 As noted by the majority, the last alternative—in anger or otherwise—was 

added in September 1995, after Mr. Tittle’s criminal conduct on June 7, 1995. Majority 

Op. at 22 n.14, 3-4 n.2. 
13 

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

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

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

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

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

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

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

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

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

CONCLUSION 

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

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

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

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

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

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

 13 Nor do the purpose-intent alternatives in the Oklahoma statute have a statutory 

umbrella term as in Mathis’s hypothetical of “a statute [that] requires use of a ‘deadly 

weapon’ as an element of a crime and further provides that the use of a ‘knife, gun, bat, 

or similar weapon’ would all qualify.” 136 S. Ct. at 2249 (citing Descamps v. United 

States, 133 S. Ct. 2276, 2289 (2013); Richardson v. United States, 526 U.S. 813, 817 

(1999)). Mathis described this kind of list as “merely specif[ying] diverse means of 

satisfying a single element of a single crime—or otherwise said, spells out various factual 

ways of committing some component of the offense—a jury need not find (or a defendant 

admit) any particular item.” Id. For me, this says it all. Unlike this hypothetical element 

of “deadly weapon” or the “occupied structure” element in the Iowa statute in Mathis, 

Oklahoma’s statute has no general statutory component. 
14 

because I conclude that the Oklahoma statute’s purpose and intent alternatives are 

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

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

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