from the United States District Court for the Northern
District of Oklahoma (D.C. Nos. 4:16-CV-00516-TCK-TLW and
William A. Glaser, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, Washington,
D.C. (R. Trent Shores, United States Attorney, Leena Alam,
Assistant United States Attorney, Tulsa, Oklahoma; Kenneth A.
Blanco, Acting Assistant Attorney General, Trevor N.
McFadden, Deputy Assistant Attorney General, United States
Department of Justice, Washington, D.C., with him on the
briefs), for Plaintiff-Appellant.
L. Derryberry, Assistant Federal Public Defender (Julia L.
O'Connell, Federal Public Defender, with him on the
brief), Office of the Federal Public Defender, Tulsa,
Oklahoma, for Defendant-Appellee.
BRISCOE, LUCERO, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
appeal grew out of the sentencing of Mr. Raymond Hamilton for
possession of a firearm after a felony conviction.
See 18 U.S.C. 922(g)(1). Mr. Hamilton was sentenced
to 190 months' imprisonment under the Armed Career
Criminal Act (ACCA) based in part on three Oklahoma
convictions for second-degree burglary. Mr. Hamilton moved to
vacate his sentence under 28 U.S.C. § 2255, arguing that
the district court had improperly applied a mandatory minimum
based on the ACCA's unconstitutional Residual Clause. The
district court granted the motion and resentenced Mr.
Hamilton to time served. The government appeals, and we
Mr. Hamilton's Prior Convictions
defendant has three prior convictions for violent felonies,
the ACCA creates a mandatory minimum sentence of 15
years' imprisonment. 18 U.S.C. § 924(e)(1). Mr.
Hamilton had seven prior felony convictions:
1. a 1975 Louisiana conviction for burglary,
2. a 1975 Oklahoma conviction for second-degree burglary,
3. a second Oklahoma conviction for second-degree burglary in
4. a 1978 Oklahoma conviction for robbery with firearms,
5. a 1991 California conviction for assault with a deadly
6. a 1993 California conviction for driving under the
7. a third Oklahoma conviction for second-degree burglary in
resulting issue is whether three or more of these convictions
involved violent felonies.
Hamilton does not dispute that two of his prior convictions
involved violent felonies: (1) his 1978 Oklahoma conviction
for robbery with firearms and (2) his 1991 California
conviction for assault with a deadly weapon. One more prior
conviction for a violent felony would trigger the ACCA's
government does not argue that a third violent felony could
be based on (1) his 1975 Louisiana conviction for
burglary or (2) his 1993 California conviction for
driving under the influence. Thus, the applicability of the
ACCA's mandatory minimum turned on the three remaining
convictions in Oklahoma for second-degree burglary.
Classification as a Violent Felony Under the
count as a violent felony under the ACCA, a prior conviction
must involve a violent felony under the Elements Clause, the
Enumerated-Offense Clause, or the Residual Clause. These
clauses provide alternative definitions of a violent felony:
1. Elements Clause: An element of the offense includes the
use, attempted use, or threatened use of physical force
against another person. 18 U.S.C. § 924(e)(2)(B)(i).
2. Enumerated-Offense Clause: The offense is burglary, arson,
extortion, or a crime involving the use of
explosives. 18 U.S.C. § 924(e)(2)(B)(ii).
3. Residual Clause: The crime otherwise creates "a
serious potential risk of physical injury to another."
Residual Clause is unconstitutionally vague,  and the
government does not invoke the Elements Clause. Instead, the
government argues that the Oklahoma offense of second-degree
burglary fits the Enumerated-Offense Clause.
Enumerated-Offense Clause would fit only if the Oklahoma
version of second-degree burglary had met the definition of
generic burglary. Taylor v. United States, 495 U.S.
575, 598 (1990). Generic burglary requires "an unlawful
or unprivileged entry into, or remaining in, a building or
other structure, with intent to commit a crime."
The Categorical Approach
determine whether a crime constitutes generic burglary, we
use the categorical approach. Id. at 600. Under this
approach, the court must decide whether the elements of the
prior conviction match the elements of a generic burglary.
See id. at 600, 602.
statute for second-degree burglary provides:
Every person who breaks and enters any building or any part
of any building, room, booth, tent, railroad car, automobile,
truck, trailer, vessel or other structure or erection, in
which any property is kept, or breaks into or forcibly opens,
any coin operated or vending machine or device with intent to
steal any property therein or to commit any felony, is guilty
of burglary in the second degree.
Stat. tit. 21, § 1435. In district court, the government
conceded that the Oklahoma statute reaches not only generic
burglaries but also non-generic burglaries. But the
government insists that Mr. Hamilton's Oklahoma
convictions involved generic burglaries.
The Modified Categorical Approach
this argument, the government relies on the modified
categorical approach. Under this approach, we consider a
limited class of charging documents to determine whether Mr.
Hamilton necessarily admitted the elements of an offense that
would constitute a generic burglary. See Shepard v.
United States, 544 U.S. 13, 26 (2005). But this approach
is permissible only if the statute of conviction is
divisible. See Descamps v. United States, U.S., 1 3
3 S . C t . 2276, 2284 (2013).
divisible, a statute must "comprise multiple,
alternative versions of the crime." Id. A
statute comprises "multiple, alternative versions of the
crime" if the statutory options constitute elements
rather than means. Mathis v. United States, U.S., 1
3 6 S . C t . 2243, 2248-49 (2016). "Elements" are
the parts of a statute that the prosecution must prove;
"means" are alternative factual methods of
committing a single element. Id. Thus, we must
determine whether the locational alternatives in the Oklahoma
statute for second-degree burglary constitute elements or
distinguish between the two, we may consider three sources:
1. state-court opinions,
2. the text of the statute, and
3. the record of conviction.
See id. Each source may definitively show whether
the locational alternatives constitute elements or means.
Id. at 2256. After considering the three sources,
however, the court might remain uncertain on whether the
locational alternatives constitute elements or means. This
. require us to treat the locational
alternatives as means, rendering the Oklahoma statute
. preclude use of the Oklahoma convictions
to trigger the ACCA's mandatory minimum under the
See United States v. Degeare, 864 F.3d 1241, 1248
(10th Cir. 2018) ("[U]nless we are certain that a
statute's alternatives are elements rather than means,
the statute isn't divisible and we must eschew the
modified categorical approach.")
considering the state-court opinions, the text of the
statute, and the record of conviction, we remain uncertain on
whether the locational alternatives constitute elements or
means. In light of this uncertainty, we must regard the
locational alternatives in Oklahoma's statute for
second-degree burglary as means rather than elements. As a
result, Mr. Hamilton's sentence was not subject to the
mandatory minimum under the ACCA's Enumerated-Offense
Standard of Review
review de novo whether Mr. Hamilton's prior convictions
qualify as violent felonies. United States v.
Cartwright, 678 F.3d 907, 909 (10th Cir. 2012).