from the United States District Court for the Western
District of Oklahoma (Nos. 5:12-CR-00053-HE-1 and
A. Pincus, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado, for Defendant - Appellant.
Timothy W. Ogilvie, Assistant United States Attorney (Mark A.
Yancey, United States Attorney, with him on the brief),
Oklahoma City, Oklahoma, for Plaintiff - Appellee.
HOLMES, MATHESON, and MORITZ, Circuit Judges.
MATHESON, Circuit Judge.
Trent was convicted for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). His
sentence was enhanced under the Armed Career Criminal Act
("ACCA") to 196 months in prison. On direct appeal,
Mr. Trent argued that the ACCA enhancement should not have
applied to him because his past conviction under
Oklahoma's general conspiracy statute was not a serious
drug offense under the ACCA. We rejected this argument and
affirmed. United States v. Trent, 767 F.3d 1046,
1063 (10th Cir. 2014) ("Trent
Trent then filed a 28 U.S.C. § 2255 motion to challenge
his sentence. While that motion was pending, the Supreme
Court decided Mathis v. United States, 136 S.Ct.
2243 (2016). In Mathis, the Court abrogated one of
the two rationales we used to affirm Mr. Trent's
sentence. Id. at 2251 n.1. Mr. Trent argued that
Mathis entitled him to relief. The district court
denied his motion on several grounds. United States v.
Trent, No. CIV-16-0142-HE, 2016 WL 7471346 (W.D. Okla.
Dec. 28, 2016) ("Trent II"). The court also
granted a certificate of appealability ("COA").
jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. §
2253, we affirm the denial of Mr. Trent's § 2255
motion under the law of the case doctrine. Although
Mathis undercut one of this court's rationales
to affirm Mr. Trent's sentence, it did not affect our
alternative rationale to affirm.
Mr. Trent, Lloyd Robinson, and Angela Keller visited Michael
Kimberly's home in Geronimo, Oklahoma in the summer of
2012, a neighbor called 911 to report that someone holding a
gun outside Mr. Kimberly's house got into a green Volvo
and drove away. Trent I, 767 F.3d at 1048. After an
officer stopped the car, he encountered the three
individuals, and Mr. Trent was sitting in the back seat. The
officer searched the car and found a handgun wedged behind an
armrest in the back seat. Id. Mr. Robinson was
released, but Mr. Trent and Ms. Keller were arrested on
account of their prior felony convictions. Id.
District Court Proceedings
convicted Mr. Trent on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). At sentencing the district court considered
whether Mr. Trent's sentence should be enhanced under the
ACCA. A § 922(g)(1) conviction generally carries a
10-year maximum sentence, 18 U.S.C. § 924(a)(2), but the
ACCA provides for a minimum 15-year sentence if the defendant
has three qualifying prior convictions for either a
"violent felony" or a "serious drug
offense." 18 U.S.C. § 924(e)(1). Mr. Trent admitted
that he had two previous convictions that would qualify as
serious drug offenses under the ACCA. He argued, however,
that his 2007 conviction under Oklahoma's general
conspiracy statute did not qualify as a serious drug offense.
The district court disagreed and sentenced him to 196 months
in prison and five years of supervised release.
appeal, Mr. Trent argued that his sentence should not have
been enhanced under the ACCA. Trent I, 767 F.3d at
1051. This court affirmed.
panel explained the analytical framework to determine whether
Mr. Trent's Oklahoma conspiracy conviction should qualify
under the ACCA as a serious drug offense. It said that under
the "categorical approach, " a sentencing court
"looks only at the elements of the statute under which
the defendant was convicted" and compares them to the
elements in the ACCA statutory definition of "serious
drug offense." Id. at 1051-52. If those elements
"satisfy the definition of serious drug offense in the
ACCA, " then the conviction qualifies. Id. at
1058 (emphasis omitted). A "conviction [under a state
statute] qualifies [as an ACCA predicate offense] only if all
violations of the statute would qualify, regardless of
'how [the specific] offender might have committed it on a
particular occasion.'" Id. at 1052 (quoting
Begay v. United States, 553 U.S. 137, 141 (2008)).
panel further explained that when the prior conviction
statute is "divisible, " the court uses the
"modified categorical approach" to determine which
part of the statute was violated. Id. at 1052. A
statute is divisible "when it 'sets out one or more
elements of the offense in the alternative-for example,
stating that burglary involves entry into a building
or an automobile.'" Id. (quoting
Descamps v. United States, 570 U.S. 254, 257 (2013)
(emphasis in original)). A court may then "examine
certain definitive underlying documents to determine which
alternative the defendant's conviction satisfied."
Id. It next applies the categorical approach to the
applicable alternative to determine whether the offense is an
Trent I panel then began its analysis as follows:
Oklahoma's general conspiracy statute states: 'If two
or more persons conspire . . . [t]o commit any crime[, ] . .
. they are guilty of a conspiracy.' Okla. Stat. Ann. tit.
21, § 421(A) (1999). Obviously, the statute could be
violated in many ways that have nothing to do with drugs.
Id. (alterations in original). The
"difficult" question was whether the statute is
divisible and, if so, whether the "modified categorical
approach" could identify the nature of the underlying
offense. Id. For two separate reasons, we decided
the statute is divisible and then employed the modified
our first rationale, we determined the Oklahoma conspiracy
statute is divisible based on a broad understanding of how to
apply Descamps to the Oklahoma conspiracy statute.
As previously noted, the statute makes it a crime for
"two or more persons to conspire to commit a
crime." The word "crime" refers to the
criminal offenses in the Oklahoma criminal code. Id.
at 1057. The statute therefore can be violated by engaging in
numerous types of criminal activity. In Trent I, we
said that "[b]y cross-referencing the state's
criminal code, the general conspiracy statute lays out
'multiple, alternative versions of the crime' of
conspiracy, according to what crime provides the
conspiracy's object." Id. (quoting
Descamps, 570 U.S. at 262). This cross-referencing
produces "alternative statutory phrases, " which
would be "alternative elements" under
Descamps, rendering the statute divisible even if
the "alternative statutory phrases" are different
means to violate the statute rather than elements in the
"full" or "traditional sense."
Id. at 1060-61. Put another way, the Trent I
court said the conspiracy statute is divisible whether the
"alternative statutory phrases" are traditional
elements or merely means.
our second rationale in Trent I, we found
"Oklahoma's conspiracy statute is divisible and the
modified categorical approach is appropriate" "even
if the Supreme Court [in Descamps] was using the
term elements in its traditional sense."
Id. at 1063. Based on our analysis of Oklahoma case
law, the state's uniform jury instructions, and a case
about the federal continuing-criminal-enterprise statute, we
concluded that a jury must agree unanimously on the object of
the conspiracy to convict under the statute. Id. at
1061-62. Accordingly, we held the conspiracy statute
contained alternative traditional elements and is therefore
divisible. Id. at 1063.
either the first or second rationale, once the Trent
I court determined the Oklahoma conspiracy statute is
divisible, it then could employ the modified categorical
approach and examine the record to ascertain the crime
underlying Mr. Trent's Oklahoma conspiracy conviction.
Because Mr. Trent had pled guilty to "conspiracy to
manufacture methamphetamine, " the crime categorically
fit the ACCA's serious drug offense definition.
Id. at 1057. We therefore held that Mr. Trent's
conspiracy conviction was an ACCA predicate offense.
Mr. Trent had three ACCA-eligible convictions under either
the first or the second rationale, we found that his ACCA
sentence enhancement was proper and affirmed. Id. at
Original Section 2255 Motion and Mathis
Trent next filed a pro se § 2255 motion challenging his
sentence on three grounds. First, he argued that his sentence
was unconstitutional under Johnson v. United States,
135 S.Ct. 2551 (2015), because that decision's
invalidation of the ACCA's residual clause defining
violent felony should also apply to the ACCA's definition
of serious drug offenses. Second, he alleged his sentence was
substantively unreasonable and thus invalid under Alleyne
v. United States, 570 U.S. 99 (2013), because the judge,
rather than a jury, found a fact-his past conviction-that
increased his sentence. Third, he argued his appellate
counsel was ineffective by failing to amend his direct appeal
to account for new relevant case law. Under "Supporting
facts" on his first ground, Mr. Trent stated that the
Oklahoma general conspiracy statute does not qualify as a
predicate for ACCA enhancement. He repeatedly cited
Mr. Trent's motion was pending, the Supreme Court decided
Mathis. In Mathis, the Court explicitly
abrogated Trent I's first rationale, 136 S.Ct.
at 2251 n.1, emphasizing that "elements"-for the
purpose of determining a statute's divisibility- should
be understood in the traditional sense: "Elements are
the constituent parts of a crime's legal definition-the
things the prosecution must prove to sustain a conviction.
… At a trial, they are what the jury must find beyond
a reasonable doubt to convict the defendant. . . ."
Id. at 2248 (quotation marks omitted). If the
alternative statutory phrases are only different
"means" of committing the same offense under a
statute, that statute is not divisible. Id. at 2264.
If a sentencing court is "faced with an alternatively
phrased statute, " it must determine whether the
relevant "listed items" are actually elements.
offered guidance on how to make the elements-versus-means
determination. A state court decision can "definitively
answer[ ] the question, " or "the statute on its
face may resolve the issue." Id. When state law
does not resolve the question, courts may "peek at the
record documents" for help: indictments, jury
instructions, plea colloquies, plea agreements, and the like.
Id. at 2256, 2257 n.7 (quotations and alterations
omitted). The Court also noted that "such record
materials will not in every case speak plainly, " and
when they do not, a sentencing judge will not be able to
satisfy "Taylor's demand for
certainty" when determining whether a defendant was