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United States v. Trent

United States Court of Appeals, Tenth Circuit

March 6, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
RICHARD ANTHONY TRENT, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Oklahoma (Nos. 5:12-CR-00053-HE-1 and 5:16-CV-00142-HE)

          Howard 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.

          Before HOLMES, MATHESON, and MORITZ, Circuit Judges.

          MATHESON, Circuit Judge.

         Richard 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 I").[1]

         Mr. 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").[2] The court also granted a certificate of appealability ("COA").

         Exercising 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.

         I. BACKGROUND

         A. Factual Background

         When 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.

         B. District Court Proceedings

         A jury 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.

         C. Direct Appeal

         On 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.

         The 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.[3] 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)).

         The 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 ACCA predicate.

         The 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 categorical approach.

         Under 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.[4] Put another way, the Trent I court said the conspiracy statute is divisible whether the "alternative statutory phrases" are traditional elements or merely means.

         Under 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.

         Under 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. Id.

         Because 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 1063.

         D. Original Section 2255 Motion and Mathis

         Mr. 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 Descamps.

         While 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. Id.

         Mathis 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"[5] when determining whether a defendant was convicted ...

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