Court Opinions: 10th Circuit Court of Appeals Opinion from Sept. 27

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

United States v. Winrow

Michael Winrow pled guilty to being a felon in possession of a firearm. At the time of his offense, the crime was ordinarily subject to a maximum sentence of 10 years. However, the Armed Career Criminal Act provided for a minimum term of 15 years when a defendant had three prior convictions for a “violent felony or serious drug offense.” The district court sentenced Winrow to 188 months, or 15 years and 8 months, and concluded that he was subject to the ACCA’s enhancement because he had three qualifying predicates. Winrow contended that this was an error. 

Two of those convictions were for aggravated assault and battery under Oklahoma law. Winrow asserted aggravated assault and battery, as Oklahoma defines it, isn’t categorically a violent felony so his convictions shouldn’t have counted as predicates. 

In determining whether a conviction qualified as an ACCA predicate, the 10th Circuit explained, the courts take a “categorical approach,” focusing on the elements of the offense in the abstract, rather than in the particulars of the conduct that led to the defendant’s conviction. Courts can employ the “modified categorical approach” when the prior conviction is based on a “divisible” statute, that is when the statute sets out one or more elements of the offense in the alternative. This allows the court to consult certain record documents to determine which elements formed the basis of the defendant’s offense. Before resorting to the modified approach, the court must first determine whether the statute is truly divisible. If it isn’t, the modified approach has no role.

Winrow argued that the statute under which he was previously convicted described alternative means of committing a single offense. He also argued that under Oklahoma law, a person of robust health could commit an aggravated assault and battery by the slightest unlawful touch of an elderly person. Since committing the offense in this way wouldn’t require violent force, Winrow contended, it’s not categorically a violent felony for the purposes of the ACCA. 

The government took the opposite view and argued each subsection of the law establishes a legally distinct crime. Even if the statute is indivisible, aggravated assault and battery still qualifies as a violent felony because both alternatives require the use of physical force against the victim. 

The 10th Circuit wrote that issue of divisibility was resolved in Winrow’s favor because neither the statute nor state law show the statute’s alternatives are elements, and the available records don’t speak “plainly.” Having concluded that Oklahoma’s aggravated assault and battery statute is indivisible, the 10th Circuit explained, the question became whether “it can be violated without the ‘use, attempted use or threatened use of physical force.’” The court ruled that a conviction under the statute isn’t categorically a violent felony and can’t serve as a predicate offense for the purposes of the ACCA. 

A 10th Circuit Court of Appeals panel out of Oklahoma City, Oklahoma, ruled in favor of Winrow and remanded the case with instructions that his sentence be vacated and he be resentenced without the ACCA enhancement, in conformity with the relevant statutory minimum.

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