United States v. Bowler , 422 F. App'x 687 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
April 22, 2011
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-6118
(D.C. No. 09-CR-00267-R-1)
v.
(W. Dist.of Okla.)
LONNIE LONTESE BOWLER,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before KELLY, HOLLOWAY and LUCERO, Circuit Judges**
Defendant-Appellant Lonnie Lontese Bowler1 brings this direct criminal appeal in
which he challenges only the sentence imposed by the district court. Mr. Bowler was
sentenced to fifteen years’ imprisonment after the district court had determined that his
criminal history made him subject to that term as a mandatory minimum under the Armed
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
1
The record includes documents with other spellings of Mr. Bowler’s middle
name. For consistency, we use the spelling that appears in the district court record.
Career Criminal Act (ACCA). This appeal challenges that determination by the district
court. Our jurisdiction is based on 28 U.S.C. § 1291, and our review is guided by 18
U.S.C. § 3742(e) & (f).
I
On April 3, 2009, Mr. Bowler lost control of the car he was driving and crashed
into a roadside barrier. An Oklahoma Highway Patrol trooper investigated the accident
and, based on his observations at the scene, arrested Mr. Bowler for driving under the
influence of alcohol. A loaded pistol was found in the subsequent search of Mr. Bowler’s
car. Mr. Bowler admitted that the gun was his and that he had previously been convicted
of a felony. He was later indicted by a federal grand jury on one count of possession of a
firearm after a former felony conviction, a violation of 18 U.S.C. § 922(g)(1).
Mr. Bowler pleaded guilty to the charge without benefit of a plea agreement. The
presentence report (PSR) showed that Mr. Bowler had a number of juvenile offenses,
beginning with a deferred sentence arising from a burglary committed when Mr. Bowler
was ten years old. We need not recite all of the offenses in the record but will note the
two that are relevant to this appeal. In December 1992, Mr. Bowler was adjudged
delinquent after having pleaded guilty to two offenses, one that he committed while he
was still eleven and one that he committed just days after his twelfth birthday. The
second of those offenses is discussed at some length below. For now, we note that the
PSR reflected that Mr. Bowler had pleaded guilty to assault and battery with a dangerous
weapon.
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In April 1993, Mr. Bowler was again adjudicated delinquent based on his guilty
plea to the offense of manufacturing an explosive device. The conduct on which that
adjudication was based had occurred in June 1992, when Mr. Bowler was eleven years
old. As we shall discuss, either one of these two adjudications – for assault and battery
with a dangerous weapon or for manufacturing an explosive device – when combined
with two qualifying adult convictions may put Mr. Bowler in the category of an armed
career criminal, thus requiring the mandatory prison term imposed by the district court.
The ACCA does not permit courts to consider Mr. Bowler’s extremely youthful age at the
time of the juvenile offenses.
We need not list details of seven subsequent juvenile offenses but note that one
was for first-degree robbery. Among Mr. Bowler’s adult convictions are some apparently
minor offenses but also a drug offense, a conviction for robbery in the first degree
(committed when he was seventeen years old), and one for domestic abuse by
strangulation.
The PSR concluded that the advisory guidelines range was 151 to 188 months.
More importantly for our purposes, the PSR also concluded that the ACCA required the
mandatory minimum sentence of fifteen years based on two of the prior adult convictions
– robbery in the first degree and domestic abuse by strangulation; and two of the juvenile
adjudications – manufacturing an explosive device and assault and battery with a
dangerous weapon.
During the sentencing proceedings, counsel for Mr. Bowler challenged the use of
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the two listed juvenile adjudications as predicate offenses for application of the ACCA’s
mandatory minimum sentence. The district judge rejected the arguments and sentenced
Mr. Bowler as recommended in the PSR. On appeal, Mr. Bowler again challenges the
determination that the two juvenile adjudications qualified as predicate offenses and
mandated the fifteen-year sentence.
II
Mr. Bowler’s appellate arguments raise issues of statutory construction which we
review de novo. The statute under which he was sentenced provides in pertinent part:
(e)(1) In the case of a person who violates section 922(g) of this title
and has three previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen years . . . .
(2) As used in this subsection –
....
(B) the term “violent felony” means any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or destructive
device that would be punishable by imprisonment for such term if
committed by an adult, that –
(i) has as an element the use, attempted use, or threatened use
of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of
physical injury to another; and
(C) the term “conviction” includes a finding that a person has
committed an act of juvenile delinquency involving a violent felony.
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18 U.S.C. § 924(e).
A
Mr. Bowler does not dispute that the two specified adult convictions were “violent
felonies” within the meaning of the statute. Because the fifteen-year sentence is the
mandatory minimum for any defendant with three qualifying convictions, if either one of
the juvenile offenses was properly counted, then the sentence must be affirmed. The
issue, then, is whether one of the two juvenile offenses was a “violent felony” within the
meaning of the statute. We first address the assault and battery with a dangerous weapon
charge and conclude that it was not shown to come within the ACCA’s definition of a
violent felony.
Although common sense might seem at first blush to resolve this question – assault
and battery with a dangerous weapon certainly sounds like a violent crime – our inquiry
must go deeper. As quoted supra, the statute provides that a juvenile offense counts as a
“violent felony” only if it is one “involving the use or carrying of a firearm, knife, or
destructive device” (and if the offense meets other criteria as well, ones which we need
not repeat as they are not at issue before us). We turn, then, to the statute proscribing
assault and battery with a dangerous weapon.
The Oklahoma law applicable at the time to that crime provided:
Every person who, with intent to do bodily harm and without
justifiable or excusable cause, commits any assault, battery, or assault and
battery upon the person of another with any sharp or dangerous weapon, or
who, without such cause, shoots at another, with any kind of firearm or air
gun or other means whatever, with intent to injure any person, although
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without the intent to kill such person or to commit any felony, upon
conviction is guilty of a felony . . . .
21 Okla. Stat. § 645 (1991). Under that statute, a dangerous weapon could be metal
“knucks,” Reardon v. Oklahoma, 51 Okla. Crim. 432, 2 P.2d 100 (1931), or a beer bottle,
Bald Eagle v. Oklahoma, 355 P.2d 1015 (Okla. Crim. App. 1960). Thus it is obvious that
the statute does not require, as an element, the use of a firearm.
Mr. Bowler’s challenge focuses on how the district court reached its determination
that the juvenile adjudication nevertheless involved the use of a firearm. This is a legal
question, not a question of fact, because of the limited nature of the inquiry the court is to
undertake:
In addressing that argument and determining whether a prior conviction
falls under the ACCA, we apply a categorical approach, generally looking
only to the fact of conviction and the statutory definition of the prior
offense, and do not generally consider the particular facts disclosed by the
record of conviction. That is, we consider whether the elements of the
offense are of the type that would justify its inclusion within the ACCA,
without inquiring into the specific conduct of this particular offender.
United States v. West, 550 F.3d 952, 957 (10th Cir. 2008) (internal citations and quotation
marks omitted; emphasis in original). This categorical approach will not suffice in this
case, however, because it is clear that the Oklahoma statute which forbids assault and
battery with a dangerous weapon does not require the use of a “firearm, knife, or other
destructive device” as the ACCA requires.
When, as here, a criminal statute encompasses conduct within the ACCA’s
definition of “violent felony” and also conduct that would not satisfy the definition, then
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we employ a modified categorical approach. Id. Using that approach with a prior
conviction obtained by way of a guilty plea, as was the conviction we deal with here, we
may refer to “the charging document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this information.”
Shepard v. United States, 544 U.S. 13, 26 (2005).
We must determine what judicial records from the juvenile adjudication may
inform our inquiry. The original charging document, which carries the generic label of
“Petition” and which is the only one in our record, alleges that Mr. Bowler had committed
the offense of shooting with intent to kill in violation of 21 Okla. Stat. § 652.
The disposition of the case, however, came upon the filing of a document, signed
by Mr. Bowler, his mother, his attorney, the state’s attorney and the judge. That
document is styled “Summary of Facts[:] Stipulation to Delinquent Petition.” In that
document (Stipulation), Mr. Bowler stated that he was charged with the felony of assault
and battery with a dangerous weapon. The government’s position on appeal – its only
argument that the sentence can be affirmed based on this assault and battery with a
dangerous weapon adjudication – is that Mr. Bowler admitted in this Stipulation that he
committed the delinquent act charged in the Petition. And the Petition charged that Mr.
Bowler and another “acting jointly, intentionally and wrongfully shot” a named victim
with a specifically described pistol and “with the intent to kill . . . .” This was the basis
for the district court’s ruling that the adjudication qualified as a violent felony under the
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ACCA.
If we were persuaded by that argument, we would need go no further because such
an admission is the type of record that courts are to consider in the modified categorical
analysis. But the admission on which the government relies is by no means clear.
Further examination of the Stipulation shows ambiguity.
First, we note that the admission on which the government relies is contained in
paragraph 11 of the Stipulation, which is a pre-printed, form document with blanks filled
in by hand. The pre-printed part of paragraph 11 asks: “Do you understand that by
stipulating to the petition you are admitting you did the delinquent act alleged?” The
hand-written response is: “Yes.” But there is no specific reference to the original
Petition in the document. Instead, the paragraph immediately preceding this admission
refers not to the original charge of shooting with intent to kill but to the charge of assault
and battery with a dangerous weapon. Paragraph 10 of the pre-printed form asks: “Do
you understand that you are charged with a delinquent act which if committed by an adult
would be the felony/misdemeanor act of” with a blank space left for description of the
charge. The response includes a circling of “felony” in the pre-printed question and this
statement: “A & B w/ Dangerous Weapon, and Breaking and Entering.”2
Later in the Stipulation there is a question whether there has been an agreement
about the disposition of the case and, if so, “what is the agreement?” The hand-written
2
The breaking and entering charge was based on different conduct but resolved in
the same disposition. It is not relevant to the issue we address.
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response here states, in pertinent part: “92-2220 amended to A & B w/ dangerous
weapon.” The reference to 92-2220 is clearly to the Petition that charged shooting with
intent to kill. But how was 92-2220 amended? The record is silent but for a statement by
Mr. Bowler’s counsel at sentencing in the federal district court that there was no amended
charge. III R. 12. The basis for that statement is not explained.
We faced a very similar situation in United States v. Bennett, 108 F.3d 1315 (10th
Cir. 1997). In the prior proceeding that was at issue in that case, Mr. Bennett had
originally been charged with first-degree burglary of a dwelling house, a charge that we
said clearly fit the applicable definition of “crime of violence.”3 But Mr. Bennett had
pleaded guilty to the reduced charge of second-degree burglary, which under Oklahoma
law is not limited to burglaries of dwellings. In that case, as in this one, our record did
not have the amended charging document which might have shed additional light on the
circumstances of the prior case. Noting the possibility that Mr. Bennett had pleaded to an
offense that did not fit the definition of crime of violence, we said that this meant that the
government had not met its burden of proving the sentence enhancement it sought. 108
F.3d at 1319.
This case is not distinguishable from Bennett in any meaningful way. Here the
3
The sentence enhancement at issue in Bennett was not the one at issue here.
Rather, Mr. Bennett had been sentenced as a “career offender” pursuant to United States
Sentencing Guidelines § 4B1.1. 108 F.3d at 1316. That enhancement provision used the
term “crime of violence” rather than “violent felony.” Nevertheless, because the
modified categorical approach applies in the same way, we conclude that Bennett is
relevant precedent for applying that approach here.
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Stipulation strongly suggests that Mr. Bowler was pleading to an amended petition not in
the record, and not to the original Petition that appears in our record. Here, as in Bennett,
we may not speculate as to the content of any amended petition. See id. at 1318 (“even
knowledgeable speculation should not be added” to the analysis). Here, as in Bennett, we
cannot overlook the possibility that the defendant pleaded to an offense that did not fit the
description required by the sentencing enhancement measure at issue. Here, as in
Bennett, the government therefore failed to carry its burden of proof that the sentencing
enhancement was appropriate.
The district court erred by basing its ruling on the assumption that Mr. Bowler had
admitted doing the acts alleged in the original Petition (shooting with intent to kill) in
disregard of the facts we have noted that cast grave doubt on that assumption. Mr.
Bowler did not admit that he was guilty of shooting with intent to kill, and it is unclear
what underlying facts, if any, were admitted because of the ambiguities in the Stipulation
that we have set out supra.
B
As we have noted, however, we must still affirm the sentence if the other juvenile
adjudication on which the government relies was shown to be for a violent felony within
the meaning of the statute. That adjudication was for the offense of manufacturing an
incendiary device with the intent to kill or injure another or to damage the property of
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another.4 In this case, we have no problem with an amended charge. Nor is there any
ambiguity in the “Summary of Facts [:] Stipulation To Delinquent Petition,” which is on
the same printed form as the Stipulation just discussed. The only question then, is
whether the acts alleged in the Petition and admitted in the Stipulation bring that offense
within the coverage of the ACCA.
As quoted, supra, the ACCA’s definition of “violent felony” includes “any act of
juvenile delinquency involving the use or carrying of a . . . destructive device” that would
be punishable by more than one year in prison if committed by an adult. Comparing that
language with the language of the Petition in question, we see that the Petition does not
allege “use” or “carrying” of a destructive device. The Petition charged Mr. Bowler (and
another) with “manufacturing an incendiary device” and alleged that the two juveniles did
so “with the intent to kill, injure or intimidate a person, or damage the real or personal
property of another . . . .” Assuming arguendo that an “incendiary device” is a
“destructive device” within the meaning of the ACCA, we still have the problem that the
Petition does not allege the “use or carrying” of the device. Although this was brought to
the district judge’s attention by the argument by counsel for Mr. Bowler, the judge in his
oral ruling did not specifically address the point, saying only that “[c]learly, the statute is
4
The Petition cites 21 Okla. Stat. § 1767. No such statute existed at the time, a
substantial impediment to our task of reviewing the elements set out by the statute. The
district judge found that this was simply due to a typographical error, and the language of
the Petition does track closely the language of 21 Okla. Stat. § 1767.1(A)(4) (1991), as
the district judge noted. Given our disposition of this issue, we need not reach the
propriety of the district court’s assumption. We caution, however, that making
assumptions in this area is fraught with peril, as we discussed in Bennett.
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a charge that qualifies under the ACCA.” We must respectfully disagree with the district
judge because as we have noted, the language of the presumptively applicable Oklahoma
statute does not on its face qualify under the ACCA because it does not require the use or
carrying of the device.
The government contends that the ACCA requires only that the juvenile
adjudication involve the use or carrying of the destructive device, not the actual use or
carrying of the device. The government relies on United States v. Nevels, 490 F.3d 800,
808 (10th Cir. 2007), but the government’s attempt to apply the holding and language of
that case to the instant case stretches past the breaking point. In that case Mr. Nevels had
committed two aggravated robberies at age eleven which were charged in a single
petition. In both counts, our court noted, it was alleged that Mr. Nevels and another had
committed robbery by “use of force, threats and intimidation with a deadly weapon, to-
wit: GUN” and thereby had put the victim “in reasonable fear of death.” 490 F.3d at
807.
On appeal, Mr. Nevels argued that those adjudications should not have been used
as a predicate for the ACCA enhancement unless the district court determined that
Nevels, and not his companion, had carried or used the gun and that the gun had actually
been involved during the crimes. We first noted that the determinations that Mr. Nevels
contended should have been made were factual determinations that are outside the scope
of, and so in fact forbidden by, the modified categorical analysis we employ to decide
these issues. Id. at 808. The language the government quotes in its brief came after that
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explanation. We said that even if the district court did not believe that Mr. Nevels
himself had carried or used the firearm, “the ACCA only requires the juvenile
[adjudication] to ‘involv[e] the carrying or use of a firearm” – it does not require the
defendant to [have] personally carr[ied] or use[d] the firearm if the weapon was otherwise
‘involved’ in the act.” Id. (first alteration in original).
Here, the charging document alleges only that Mr. Bowler “manufactured” an
incendiary device. There is no allegation that he or his companion actually intimidated
someone with the device. To hold that this language satisfies the statutory requirement of
“involving the use or carrying” of such a device would effectively delete the words “use”
and “carrying” from the statute. The government in effect asks us to assume that the
device was used or carried. This would plainly be improper in this criminal case.
A recent decision from another circuit provides illuminating contrast for analysis
of the statutory language at issue. In United States v. Wright, 594 F.3d 259, 265-67 (4th
Cir.), cert. denied, 131 S.Ct. 507 (2010), the defendant had three prior juvenile
adjudications for burglary, and in each case he had stolen a firearm. On appeal from his
sentence under the ACCA, Mr. Wright argued that he did not “carry” the firearms by
stealing them. In rejecting his argument, the court in that case noted that a “burglary that
results in the theft of firearms necessarily involves carrying them, else the burglar would
be forced to leave his spoils at the scene of the crime.” Id. at 266. The court went on to
note that the term “carry” as used in section 924(c)(1) “requires knowing possession and
bearing, movement, conveyance, or transportation of the firearm in some manner.” Id.-13-
(quoting United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997)).
In contrast, one can manufacture a destructive device without moving, conveying
or transporting it. The offense would appear to be complete once the device was made or
assembled, whether or not Mr. Bowler and his companion ever removed it from the place
of manufacture. And the record here provides no evidence that the device had been
removed from its place of manufacture.
Nor is it logical to contend that manufacture of a destructive device inherently
involves its use. In the first place, if Congress had intended the statute to reach
manufacture or possession of a destructive device without any additional act, then surely
Congress knew how to express that intention. We do not presume Congress to have
added words with no meaning. Following that principle of statutory interpretation, the
Supreme Court unanimously held in construing the verb “use” in another subsection of
section 924 that a standard that would find “use” to have been established “in almost
every case by evidence of mere possession does not adhere to the obvious congressional
intent to require more than possession to trigger the statute’s application.” Bailey v.
United States, 516 U.S. 137, 144 (1995).5 We decline the government’s suggestion to
ascribe to “involving the use of” a meaning that would require no more than manufacture
or possession. Instead, like the Supreme Court in Bailey, we conclude that such a
construction would establish a standard that would be satisfied in almost every case by
5
Bailey was superseded by statute as we noted in United States v. Sanders, 26 Fed.
Appx. 802 (2001). We do not think that this in any way undermines the analysis of the
unanimous Court in its construction of the language of the statute before amendment.
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mere possession (or manufacture), despite the obvious congressional intent to require
more than that.
C
In conclusion, we find on careful examination of the record that the government
did not meet its burden of showing that either of the juvenile adjudications was for a
“violent felony” within the meaning of the ACCA. The district court’s holding that the
fifteen-year sentence was mandated by the ACCA was therefore error.
Accordingly the sentence is reversed and the matter is remanded to the district
court for sentencing without application of the mandatory minimum provision of the
ACCA.
IT IS SO ORDERED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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