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, Okla homa, appearing for Appellant. Steven W. Creager, Assistant United States Attorney (Mark A. Yancey, United States Attorney, and Kerry Blackburn, Assistant Unite d States Attorney, w ith him on the brief), Office of the United States Attorney, Oklaho ma 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 Tittle 1 pled guilty to violating 18 U.S.C. § 922(g)(1), which bars felons from possessing firearms. This crime carries a maximu m 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 fe lony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The district court conc luded 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. § 37 42(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 spec ified 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 ag reement further provid ed that “[i]f [the ACCA] is found not to apply, the maximum pe nalty 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 fo r an ACCA sentence becau se 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 co nvictions 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 cons titute a “violent felony” as defined by the ACCA, see 18 U.S.C. § 924(e)(2)(B). Deciding whether a prior conviction qua lifies as an ACCA predicate offense requires comparing the crime’s elements to the ACCA. This elem ents-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 pers ons 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 consu lt documents from the record of a defendant’s prior conviction under § 1289. 16 to discern whether the conviction was violent and therefore qualifie s as an ACCA predicate. Id. at 645. This process of examining the record is known as the “modified categorical approach.” Described more fu lly below, this approach looks to the record documents to identify the relevant elements for th e 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 circu it held that sentencing courts should apply the modified categorical approach when a defendant’s statute of conviction contained alternative terms, regardless of wh ether 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 st atute 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 partie s 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 M r. 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 am endment does not affect our conclusion that Mr. Tittle’s conviction for violating § 1289.16 do es not qualify as a “violent felony” under the AC CA 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 a nd elements is impor tant 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 fash ion because the factual summary in his state plea agreement included the fo llowing 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 fr om 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 u nder the violent portion of § 12 89.16 and that he therefore had three qualifying ACCA offenses. A pplying 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 ca tegorical approach, we have no reason to examine this plea document or glea n 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 whet her a defendant’s past convictions warrant an ACCA enhancemen t. Applying the law to Mr. Tittle’s conviction under § 1289.16, we conclude it is not a qualifying ACCA offense and re mand for resentencing.

4 The Government initially argued Mr. T ittle could not appeal his sentence because his plea agreement waiv ed his right to appeal. Th e 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 th is appeal because “whe ther [his] sentence exceeds the applicable statutory maximum depe nds 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). Th e motions panel invited the Government to raise the waiver issue agai n “for fresh consider ation and definitive disposition by the merits panel.” Id. at 5. The Government accepted that inv itation in its merits briefing. See Aplee. Br. at 10-20. Mr. Tittle replied that the motions panel had correctly de termined the waiver was unenforceable. See Aplt. Reply Br. at 1-3. After briefing, the Government filed a motion asking us to strike the appeal-wai ver 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 stri ke 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 re view de novo. United States v. Ridens , 792 F.3d 1270, 1272 (10th Cir. 2015). But we typically review for plai n 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—t hat 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 c ontention 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 b ecause he requested that the district court use the modified categorical approach. Mr. Tittle responds he did not invite error when he corre ctly 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 settle d law that changed while the case was on appeal. Continued . . .-8- We need not resolve this di spute. 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 eith er standard of review.
B. Legal Background In this section, we (1) describe the ACCA enhancement, (2) explain the approaches courts use to determine whethe r 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 (citi ng 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 interven ing 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 arisi ng during the pendency of the appeal.”). We also fi nd persuasive the Eleventh Circ uit’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 argum ent, addressing defendant’s new argument based on intervening Supreme Court and circu it precedent, reviewing for plain error, and vacating defendant’s ACCA sentence).-9- But the “ACCA prescribes a 15-year mandato ry 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 gu ilty 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” define s 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, attemp ted 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 p hysical 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 (20 15). Only the force clau se 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 categor ical 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 approa ch 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 in quiry is whether the crime’s elements satisfy the ACCA’s definition of violent felony. If some conduc t 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 convic tion 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 th an 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 Senten cing 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 Ci r. 2016) (immigration).-11- to the defendant’s prior conv iction was in fact violent.
In Taylor v. United States , 495 U.S. 575 (1990), the Supreme Court established this elements-based approach to determin e whether a conviction qualifies as an ACCA offense. The Court said, “Congress intended that the [ACCA] enhancement provision be triggered by crimes having ce rtain 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 th e prior crime necessar ily 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 offe nse 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 conv iction but would not satisfy the definition—then any “conviction under that law cannot co unt 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 co nduct leading to the underlying conviction would sa tisfy the ACCA’s violent fe lony definition. “[T]he mismatch of elements saves the de fendant 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 na rrow range of cases” the sentencing court “may . . . go beyond the mere fact of co nviction.” 495 U.S. at 602. The modified categorical approach allows a court to peer around the stat ute of conviction and examine certain record documents underlying the defenda nt’s prior offense, but this is done only for a limited purpose. Courts employ the modified categorical a pproach when a prior conviction is based on “a so-called ‘divisible statute,’” one that “s ets out one or more elements of the offense in the alternative.” Descamps , 133 S. Ct. at 2281. For th ese 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 elem ents formed the basis of the defendant’s conviction. Id. at 2284. For courts faced with a divi sible statute, “the modified approach serves—and serves solely—as a t ool 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 elem ents are identified, the court applies the categorical approach. Courts consult record docum ents from the defendant’s pr ior case for the limited purpose of identifying which of the statute’s a lternative elements form ed 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 st atute formed the basi s of the defendant’s conviction.” Id. at 2293 (emphasis added). With the elements (not the facts) identified, courts “can then do what the categorical a pproach demands” and co mpare those elements to the ACCA definition. Id. at 2281. Thus, “the modified approach merely he lps 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 me thod” of comparing el ements to the ACCA, but it “adds . . . a mechanism” to identify the relevant elements and thereby facilitates the categorical comparison “when a statute lis ts multiple, alternativ e 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 la cks alternative elements. Id. at 2285; see also id. at 2282 (“[S]entencing courts may not apply the modifi ed categorical approach when the crime of which the defendant was convicted has a sing le, indivisible set of elements.”). Thus,

9 The Supreme Court has said courts may consult “charging documents, plea agreements, transcripts of plea colloquies, fi ndings of fact and conclusions of law from a bench trial, and jury instru ctions and verdict forms.” Johnson , 559 U.S. at 144.-14- choosing the right initial approach is an e ssential step and depend s 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 en ough that a statute is framed in the disjunctive. As the Court stressed in Mathis , the statutory phrases li sted 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 Ci r. 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 betwee n “elements” and “means.” “Elements are the constituent parts of a crime’s legal defi nition—the things the prosecution must prove to sustain a conviction.” Mathis , 136 S. Ct. at 2248 (quotations omitted). “[T]hey are what th e 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, el ements 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 alterna tive means of satisfying an el ement, 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 th e 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 whethe r its listed items are elements or means.” Id. at 2256; see also id. at 2248 (“Distinguishing between elemen ts 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 exam ples,’ then it includes only a crime’s means of commission.” Id. Or sometimes the “sta tute may itself identify which things must be charged (and so are el ements) and which need not be (and so are means).” Id. Second , state-court decisions may answer th e question. “When a ruling of that kind exists, a sentencing judge ne ed 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 th e statute’s alternative terms, “[t]hat is as clear an indication as any that each altern ative is only a possible means of commission, not an element.” Id. at 2257. 11 “Conversely, an indictme nt . . . could indicate, by referencing one alternative term to the exclusi on 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 elemen ts 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 th e 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 th e 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 ar e means of satisfying a single element. Id. The dissent places great weight on th e 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 inst ruct 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 iden tify 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 appr oach. We conclude that we erred in Hood because § 1289.16 lists altern ative 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 mean s/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 AC CA violent felony. Because his § 1289.16 conviction does not count, Mr. Tittle does not have three qualifying o ffenses to warrant an ACCA enhancement. His sent ence, 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. T ittle 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)). Th e Government contends “the rationale of Mathis does not plainly abrogate Hood .” Aplee. Br. at 39. We agree with Mr. Tittle. Hood bypassed the means/el ements question and applied the modified categorical approach. But Mathis shows we erred in Hood to the extent we failed to consider whether § 1 289.16’s disjunctive phrases are means or elements. The Supreme Court require s 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 statut e’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 re fer 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 i rrelevant 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 a lternative statutory phr ases in § 1289.16 are means, but he bases his argument primarily on the record material s, 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 ne ed 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 o ffenses are alleged—charging documents tend to include more than one of the alternativ e 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 te xt of § 1289.16 do es not answer the

______________________________________ Cont. statute’s] listed items ar e 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 stat ute 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 re levant 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 fo r 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) (em phasis 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 differe nt crimes such that a jury would have to agree on a particular alternative to convict. 14
Second , the Oklahoma Court of Criminal A ppeals (“OCCA”) has not specifically decided the divisibility question. But Oklahoma case law at least sugg ests § 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 ex plained, “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 alterna tive phrases addressing purpose because they are the source of the parties’ dispute an d 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 un der the ACCA, § 1289.16 can be violated without committing an ACCA vi olent felony. We therefore need not consider whether the other disjunctive phrases in the statute w ould 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 si ngle 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 th at 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 alternativ es suggests they ar e illustrative examples satisfying the statute’s purpose requirement. See Mathis , 136 S. Ct. at 2256 (“[I]f a statutory list is drafted to offer ‘illustra tive examples,’ then it includes only a crime’s means of commission.”). Oklahoma’s Uniform Jury Instructions pr ovide an additional source of state law guidance. 15 The relevant instruction provides: No person may be convicted of poin ting a firearm unless the State has proved beyond a reasonable doubt e ach element of the crime. These elements are:

15 In cases like Mr. Tittle’s where th e defendant pled gui lty and no jury instructions were given, the state’s uniform ju ry instructions can pr ovide insigh t 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 No rth 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)/(w ith 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 instruc tion bunches together the statutory purpose alternatives into a si ngle element. It does not suggest the jury would have to agree on a particular alte rnative to satisfy th e fifth element. On their own, none of these state la w 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 onl y on these state law sources because Mathis ’s third tool settles the issue. Third , the record documents co nfirm that § 1289.16’s a lternative purpose phrases

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

16 The “in anger or otherwise” alterna tives were added in a September 1995 amendment to the statute. See supra note 2.

17 Recall that this “peek” at the documen ts 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 calib er pistol . . . at [the victim], for the purpose of threatening and intimidating her, and with the unlawful, malicious and felonious intent then an d there on the part of said defendant to injure the said [victim] physica lly, or for the purpose of mental or emotional intimidation, or whim sey [sic], humor or prank,

. . . . contrary to the form of the statute in such case made and provided and against the peace and di gnity 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]ha t is as clear an indication as any that each alternative is only a possible means of commi ssion, not an element that the prosecutor must prove to a jury beyond a reas onable 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 appro ach 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 ho ping to maximize the state’s chances of winning a conviction might be expected to char ge 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 si gnificant because the dissent is right that

“ Mathis tells us to pay attention to whethe r 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 m odified categorical approach. Id. at 2256. Because § 1289.16 is indivisible, we a pply 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 pl ain 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 ‘pla in’ 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. 20 15) (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 (10t h Cir. 2005) (holding the district court plainly erred under a new Supreme Court decision handed down while the cas e 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 th e means/elements question. Oral Arg. at 27:54-28:22; see also Aplee. Br. at 37. But Mathis unambiguously instructs fede ral courts to settle, if possible, the means/elements is sue 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 impor tance 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 Governme nt’s point about uncertainty favors Mr. Tittle because the Government bears the bur den of proving a prio r 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 sa tisfied without “the use, attempted use, or threatened use of physical force agains t 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 elemen ts [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 “phy sical force” in the ACCA as

“ violent force—that is, force capable of causi ng physical pain or injury to another person”). Hood arrived at this conclusion throu gh its consideration of § 1289.16’s purpose alternatives, which were th e focus of (1) the parties’ briefs 20 and (2) Hood ’s

______________________________________ Cont. conviction if its ACCA qu alification 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 (N o. 13-6182), 2014 WL 1400517, at *46.-26- analysis of the charging do cument 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 fo rce” is enough, under the categor ical approach, to disqualify § 1289.16 convictions as predicates for an ACCA sentence. Id. Our own examination of the statute leads us to agree. Inde ed, as the government conceded in Hood , the “whimsy, humor or prank” alterna tives 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 us e, or threatened use of physical force,” 18 U.S.C. § 924(e)(2)(B)(i), it is not categ orically 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 di sregard as dictum our language from Hood that § 1289.16 can be violat ed 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 involv ed nor essential to determina tion of the case at hand.” In re Tuttle , 291 F.3d 1238, 1242 (10t h Cir. 2002) (quotations omitted). “[A] panel of this Court is bound by a holding of a prior panel of this Court but is not b ound by a prior panel’s dicta .” Bates v. Dep’t of Corr. , 81 F.3d 1008, 1011 (10th Ci r. 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 ma de 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 threaten ed use of physical force, the modified categorical approach requires that we look to additional charging do cuments to determine the specific crime to which Ho od pleaded guilty.” (emphasis added)). Our decision that § 1289.16 was not categorically a violent felony was thus cr itical 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 th e 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 th reatened 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 categor ically 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), suppor ts 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 crim e 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 be lieve 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. 1 991)). Convictions under the New Mexico statute also required proof the defendant acted purposefu lly 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 cr ime needed a specific intent el ement “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 purp osefully 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 sh ould be considered a categorically violent felony, the Government reminds us that Moncrieffe v. Holder , 133 S. Ct. 1678 (2013), declared that courts applying the categori cal approach must “focus on the minimum conduct criminalized by the state statute” w ithout applying “legal imagination” to consider hypothetical situati ons 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 § 12 89.16 for pointing a firearm in obvious jest.” Aplee. Br. at 27 n.7 (quotati ons omitted). Again, we disagree. This is not a case where we need to imagin e hypothetical non-violent facts to take a statute outside the ACCA’s ambit. Se ction 1289.16 reaches co nduct undertaken for purposes of “whimsy, humor or prank” beca use 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 contex t, 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 convic tion 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 disp arity resolves this
case.” Id. at 2251. The Court did not seek or re quire 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) (“[T he] sensible caution against crediting speculative assertions regardin g the potentially sweeping sc ope of ambiguous state law crimes has no relevance to a case like this. The state crime at i ssue 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 lang uage . . . 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 (3 d Cir. 2009) (“[N]o application of ‘legal imagination’ to the Pennsylvania simple assault statute is nece ssary. 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 de fines 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. Secti on 1289.16 is therefore not categorically a violent felony. 5. Mr. Tittle’s Sentence Is Illegal Mr. Tittle received an illegal, over-maxim um sentence. Sec tion 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 convic tion 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 ille gal “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 gr eater breadth is ev ident 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 whet her 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 (1 0th 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 ap plication of ACCA sentence violated due process and “inherently result[ed] in a complete miscarriag e of justice”).
III. CONCLUSION We vacate Mr. Tittle’s sentence and remand for resentencing in conformity with the relevant statutory ma ximum of 120 months. See 18 U.S.C. § 924(a)(2). 24

24 In light of our dispositi on, 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-cr afted opinion, I disagree with its conclusion that Mr. Tittle’s Oklahoma stat ute of conviction provi des means, rather than elements, for its altern ative 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 Info rmation 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 el ected to plead guilty to the Superseding Information’s sole charge. Doing so kept M r. Tittle from a much higher sentence had the jury convicted him on the me thamphetamine charge. At sentencing, Mr. Tittle objected to his recommended sentence , contending that hi s 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 calib er pistol, serial number 031625 at one

1 In exchange, the government abandone d its Superseding Indictment charging possession of methamphetamine with intent to distribute it, in vi olation 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 threat ening 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 Willia ms 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 ch arge, Mr. Tittle wrote, “I was struck in the head with a sk illet 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 unstri cken language, Mr. Tittle continued, “I pointed a weapon at Caroly n A Williams and threatned [sic] her crazy 2 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 ru les that the purpose and intent alternatives listed in Okla. St at. tit. 21 § 1289.16 are means of committing the crime, not elements. This, the majority conc ludes, requires it to apply the categorical approach and go no fu rther. Then, under the categorical approach, the majority declares that the Oklahoma crime doesn’t qualify as a pr edicate violent felony because one of the

2 The word crazy was stricken fro m the sentence but is legible.3 means—whimsy, humor, or prank—does not involve the threaten ed 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 alte rnatives in Okla. Stat. tit. 21, § 1289.16 are elements, freeing us to appl y 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 cate gorical approach to resolve whether Mr. Tittle was necessar ily convicted of an altern ative 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 viol ent felonies under the ACCA—whether the statute of conviction lists alternat ive 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 statut e’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 any4 purpose of injuring, either through phys ical 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—po inting a gun at Carolyn Williams and threatening to kill her. We must decide whether the purpose and inte nt alternatives are means under Mathis , compelling the categorical approach and cordoning fro m 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 convic tion of this Iowa burglary statute qualified as a violent felony under the ACCA: Any person, having the intent to comm it a felony, assault or theft therein, who, having no right, license or priv ilege 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 build ing, 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 othe r 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 bur glary.” In other words, the elements-based test ensured that a defendant had necessarily b een convicted of a violent felony as defined in the ACCA. Mathis goes past that useful mechan ism, 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 th e deposit or storage of anything of value but which is too small or not de signed to allow a person to physically enter or occupy it is not an “occupied structure”.
Id. § 702.12. Because occupied structures such as “la nd, water or air vehicles” are not buildings or structures, they do not m eet the location element of gene ric burglary as referenced in Taylor v. United States , 495 U.S. 575, 599 (1990) (con cluding that generic burglary has an element of “unlawful or unprivileged en try into, or remaini ng in, a building or structure, with intent to commit a crime”). As does Iowa Code § 7 13.1, the Massachusetts statute exceeds generic burglar y, 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 convict ed 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 applicatio ns 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 agreem ent or recorded colloquy in which Shepard admitted the generic fact.” Id . at 25 (emphasis added). From this, we can6 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 th e 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, becaus e 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 la w: not one that lists multiple elements disjunctively, but instead one that enumer ates 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 premed itated murder or felony murd er.” 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 Co urt reasoned that statutory alternatives are not always “indepe ndent elements defining independent crimes under state law.” Id . at 636. The Court looked to wh ether a State court had determined “that certain statutory alternatives are mere means of committing a single offense, rather than independent elem ents 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 questio n, 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 wi th 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 mean s. 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 fou nd 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 pa rticular, the Iowa court held that the statutorily defined list of “occupied stru ctures” are “‘alternative method[s]’ of committing one offense, so that a jury need not agree whet her the burgled location was a

5 The Mathis dissent notes that “there are ve ry few States where one can find authoritative judicial opinions that decide the means/element ques tion.” 136 S. Ct. at 2264 (Breyer, J. dissenting). In fact, addressing the question in Mathis , the government found just two States whose courts had an swered the elements/m eans 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 conv ict Duncan of a single burglary charge even if the jurors disagreed about whether he had burgle d 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 an swer[ed] the question. ” 136 S. Ct. at 2256 (citing Duncan , 312 N.W.2d at 523). Addressing this same first tool, the majo rity acknowledges th at Oklahoma courts have not spoken so plainly. Even so, the ma jority 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 a nd not elements. In particula r, 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 anot her person or persons with some kind of improper purpose.” Majority Op. at 20 (quoti ng 169 P.3d at 1202). I don’t see how the reference to “this crime” mean s 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 juro rs split over whether the defenda nt 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 th e 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 th e 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 pa rt 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 inte nts or purposes, including to threaten, or to injure by mental or emotional intimidation.” Majority Op. at 20. Fr om this, the majority reasons that listing some purpose or intent alternatives “suggest s they are illustrative examples satisfying the stat ute’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 prosecutio n can charge one alternative or more. If the prosecutor charges multiple altern atives, the verdict form will si mply have to ensure that the jury unanimously finds the individua l alternatives (however many) beyond a reasonable doubt. I’d expect a prosecutor to charge all of the alte rnatives if they’re

7 In part, this California statute requir es 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 cate gory 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 indicatio n as any that each alternative is only a possible means of commission, not an element th at the prosecutor must prove beyond a reasonable doubt.” 8 136 S. Ct. at 2257. Moreover, th e Court said, the same would be true if the state-court documents “use a single umbre lla term like ‘premises.’” Id. Conversely, Mathis noted, “an indictment and jury instructions could in dicate, by referencing one alternative term to the exclusion of all others, that the statute co ntains 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 pr osecutors aren’t precise in their charging documents, using forms incorporating the enti re 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 char ging document’s listing multiple alternatives. Majority Op. at 19. I remain puzzled by this concession.11 same crime narrowly or broadly. Here, the pr osecutor charged some alternatives, and not others. 10 The prosecutor’s choices limited the Stat e 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 (t he purpose and intent altern atives), leaving a space for the jury to mark wh ich, if any, it unanimously fo und applied beyond a reasonable doubt. 11 In a future case, we might see an Okla homa prosecutor charge just one of the alternatives (say, pointing a firearm at a wo man and threatening to kill her, as Mr. Tittle admitted doing). Would we switch positions ther e to say that the Oklahoma alternatives suddenly became elements? In addition, though Mr. T ittle pleaded guilty, we can s till look for guidance to Oklahoma’s uniform jury instruction, which provides in part as follows: “Fifth, (for the purpose of threatening)/(with the intentio n 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 char ged with pointing a weapon at Carolyn Williams “[1] for the purpose of threatening and intimidatin g her,” “[2] with the unlawful, malicious and felonious intent then and there on the part of said defendant to in jure 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 fo rbade 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 conclu des 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 th e jury would have to agree on a particular alternative to satisfy the fifth element.” Id

. I read the uniform instructi on differently. If the alternativ es are simply means, the instruction would have no need fo r the slash marks or parenthese s. 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 su ggests that the government may charge one alternative alone as an element. And in th at 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 mu tually exclusive from the others. Under a sensible reading, Mr. Tittle could not pl ayfully point his gun at Ms. Williams and kiddingly say, “I’m going to k ill you,” and have a purpose to threaten. A joking “threat” isn’t a threat. Second, not all of the means will apply in ever y instance. Here, I note that a

12 As noted by the majority, the last alternative—in anger or otherwise—was added in September 1995, afte r 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 in tent to discharge a firearm. On this same point, as mentioned, Mathis directs us to lo ok to whether the charging document or jury in structions “use a single umbre lla 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 st atute contains no corresponding umbrella

term. 13 Though an Iowa prosecutor can charge burglary of an “occupied structure,” an Oklahoma prosecutor cannot ch arge 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 elemen ts, and Mr. Tittle, as part of his state plea, admitted to one of the altern ative elements—pointing a fire arm at Ms. Williams with a purpose of threatening her. His admission pr oves he necessarily was convicted of a violent felony—one with an element of the th reatened 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 [t hat] 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 qua lify.” 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 “m erely 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 o ffense—a jury need not find (or a defendant admit) any particular item.” Id. For me, this says it all. Un like 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 stat ute’s purpose and inte nt alternatives are elements, and because applying the modified categorical appr oach reveals that Mr. Tittle necessarily admitted to an a lternate element qualifying his Oklahoma crime as a violent felony, I would affirm the district c ourt’s sentence imposed under the ACCA.