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United States v. Leaverton

United States Court of Appeals, Tenth Circuit

July 16, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JESSE BUD LEAVERTON, Defendant-Appellant.

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

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

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

          Before LUCERO, HOLMES, and McHUGH, Circuit Judges.

          LUCERO, Circuit Judge.

         Jesse Leaverton was convicted of three counts of bank robbery. At sentencing, the district court concluded that 18 U.S.C. § 3559(c) applied because Leaverton had been previously convicted of two serious violent felonies, enhancing his sentence from a maximum of twenty years to a mandatory term of life imprisonment. Leaverton now appeals, arguing that his prior conviction for Oklahoma manslaughter does not qualify under § 3559(c). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse Leaverton's sentence and remand to the district court for resentencing.

         I

         Leaverton was convicted of three counts of bank robbery in violation of 18 U.S.C. § 2113(a). His Presentence Investigation Report ("PSR") calculated a total offense level of 27 and a criminal history category of III, resulting in an advisory Guidelines range of 87 to 108 months. However, the government contended that Leaverton was subject to a mandatory life sentence under 18 U.S.C. § 3559(c)(1). That statute requires that anyone convicted of "a serious violent felony" who has two or more prior convictions for serious violent felonies be sentenced to life imprisonment. § 3559(c)(1). A serious violent felony is one that falls within a list of enumerated offenses or is punishable by a term of imprisonment of at least ten years and meets certain other criteria. § 3559(c)(2)(F).

         The sole point of contention was whether Leaverton's prior conviction for Oklahoma Manslaughter I qualified as a serious violent felony. That statute contains three subsections. See Okla. Stat. tit. 21, § 711. The government argued that Leaverton was convicted under a subsection that applies when a killing is "perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide." Okla. Stat. tit. 21, § 711(2). In support of its argument, the government attached a docket sheet that described Leaverton as pleading guilty to "MANSLAUGHTER I, SECTION #2, TITLE 711."

         At sentencing, the district court found that Leaverton had been convicted under subsection two. It held that this conviction qualified as a serious violent felony and thus Leaverton met the requirements of § 3559(c). The court imposed a sentence of life imprisonment. Leaverton timely appealed.

         II

         We review de novo whether a prior conviction qualifies as a serious violent felony under § 3559(c). United States v. Cooper, 375 F.3d 1041, 1053 (10th Cir. 2004).

         A

         In determining whether a previous crime meets a statutory definition, there are two potential approaches, "the categorical approach and the circumstance-specific approach." United States v. White, 782 F.3d 1118, 1130 (10th Cir. 2015). Under the former, we look only to "the elements of the statute forming the basis of the defendant's conviction," and if a statute is divisible, to "a limited class of documents," rather than the particular facts of a defendant's conduct. Id. at 1130-31. Under the latter, we "consider the facts and circumstances underlying an offender's conviction." Id. at 1131 (quotation omitted). Both ...


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