Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH April 15, 2022 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-5114
IRA LEE WILKINS,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:19-CR-00116-JED-1) _________________________________
Shira Kieval, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for the Defendant-Appellant.
M. Scott Proctor, Assistant United States Attorney (Clinton J. Johnson, Acting United States Attorney, and Leena Alam, Assistant United States Attorney, with him on the briefs), Tulsa, Oklahoma, for the Plaintiff- Appellee. _________________________________
Before BACHARACH, BRISCOE, and MURPHY, Circuit Judges. _________________________________
BACHARACH, Circuit Judge. _________________________________
This case arises out of Mr. Ira Lee Wilkins’s sentence for unlawfully
possessing a firearm. See 18 U.S.C. § 922(g)(1). In deciding the sentence, Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 2
the district court considered the effect of Mr. Wilkins’s prior conviction in
Texas for aggravated robbery. The district court characterized this offense
as a “crime of violence” under the sentencing guidelines, which increased
the base-offense level. U.S.S.G. §§ 2K2.1(a)(4)(A) & (6). Mr. Wilkins
appeals, arguing for the first time that the district court shouldn’t have
considered aggravated robbery as a crime of violence. 1 We affirm.
I. To determine whether aggravated robbery in Texas constitutes a crime of violence, we must determine the applicable approach.
To determine whether a prior offense constitutes a crime of violence,
we apply either the categorical approach or the modified categorical
approach. United States v. Kendall, 876 F.3d 1264, 1267–68 (10th Cir.
2017).
A. Categorical Approach
Under the categorical approach, we compare the underlying state
statute to the guidelines’ definition of a “crime of violence.” Id. at 1267. If
the statute sweeps beyond the guidelines’ definition of a “crime of
1 After we affirmed the sentence, Mr. Wilkins raised a new issue in the United States Supreme Court, urging reconsideration based on Borden v. United States, 141 S. Ct. 1817 (2021). There the Supreme Court had concluded that a criminal offense with a mens rea of recklessness could not constitute a violent felony under the Armed Career Criminal Act. Id. at 1834. The Supreme Court granted the request, remanding for consideration of Borden. We have applied Borden to the sentencing guidelines, holding that a crime of violence under the sentencing guidelines requires a mens rea greater than recklessness. United States v. Ash, 7 F.4th 962, 963 (10th Cir. 2021).
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violence,” we wouldn’t consider the offense a crime of violence. Id. at
1267–68.
We start with how Texas defines aggravated robbery. Under Texas
law, a person commits aggravated robbery if “he commits robbery as
defined in Section 29.02, and he
(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:
(A) 65 years of age or older; or
(B) a disabled person.”
Tex. Penal Code § 29.03(a).
This definition turns on the meaning of “robbery.” A person commits
robbery under § 29.02 “if, in the course of committing theft . . . and with
intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”
Tex. Penal Code § 29.02(a).
We compare this definition of aggravated robbery to the guidelines’
definition of a “crime of violence.” The applicable guideline provision,
§ 4B1.2(a)(1), defines a “crime of violence” as a state felony that “has as
3 Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 4
an element the use, attempted use, or threatened use of physical force
against the person of another.” U.S.S.G. § 4B1.2(a)(1). 2 So we must decide
whether Texas’s offense of aggravated robbery necessarily contains an
element of using, attempting to use, or threatening to use physical force
against “the person of another.” Id.
B. Modified Categorical Approach
The parties agree that Texas’s statutes for robbery and aggravated
robbery cover some conduct that wouldn’t fit the applicable definition of a
“crime of violence.” But the government argues that
the Texas statutes create separate offenses and
Mr. Wilkins’s conviction involves only the offense that constitutes a “crime of violence.”
So we must decide whether the Texas statutes refer to different crimes or
just different ways of committing a single crime. We call this inquiry
“divisibility.” United States v. Titties, 852 F.3d 1257, 1266 (10th Cir.
2 The guidelines contain a separate definition that treats “robbery” as one of the crimes constituting a “crime of violence.” U.S.S.G. § 4B1.2(a)(2). Under this part of the definition, a Texas robbery counts only if it fits the generic definition of a robbery. See United States v. O’Connor, 874 F.3d 1147, 1154 (10th Cir. 2017) (concluding that robbery under the Hobbs Act, which requires the use or threat of force against property, does not qualify as generic robbery and extends beyond § 4B1.2(a)(2)). The government does not characterize Mr. Wilkins’s offense as a generic robbery, so this definition does not apply. 4 Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 5
A statute is “divisible,” creating multiple crimes, when the statute
“sets out one or more elements of the offense in the alternative.” Descamps
v. United States, 570 U.S. 254, 257 (2013) (emphasis added). But
disjunctively listed statutory components do not automatically qualify as
elements. United States v. Titties, 852 F.3d 1257, 1267 (10th Cir. 2017).
When the statute merely lists “various factual ways of committing some
component of the offense,” the statutory components are considered means
rather than elements. Id. (internal quotation marks & citation omitted). A
statute is divisible only when it lists “multiple, alternative elements, and
so effectively creates several different . . . crimes.” Id. (internal quotation
marks & citation omitted).
If the statute is divisible, creating multiple crimes, the district court
applies the modified categorical approach to determine which crime was
committed. Id. To make that determination, the court consults a limited
class of record documents. Id. at 1266. Once the court determines which
crime the defendant committed, the court compares the elements of that
crime to the guidelines’ definition of a “crime of violence.” Id.
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II. It would not have been an obvious error for the district court to classify the Texas robbery statute as divisible, creating multiple crimes.
At issue is the divisibility of the Texas robbery statute, § 29.02(a). 3
See p. 3, above. Subsection “1” requires only recklessness; Subsection “2”
requires either intentional or knowing conduct. So our threshold task is to
decide whether these statutory components refer to elements (reflecting
two separate crimes) or means (different ways of committing the same
offense). Under the plain-error standard, Mr. Wilkins doesn’t show an
obvious error in considering the statutory components as elements.
A. We apply the plain-error standard, preventing reversal unless the alleged error is obvious.
If Mr. Wilkins had preserved the issue, the government would need
to establish that
the Texas robbery statute contains two sets of elements and
Mr. Wilkins’s conviction is a “crime of violence” under the guidelines because the elements require the use, attempt to use, or threat to use physical force against another person.
3 Mr. Wilkins also argues that the aggravator at issue—§ 29.03(a)(2) (“using or exhibiting a deadly weapon”)—does not qualify as a crime of violence because recklessness would suffice. But aggravated robbery contains two elements: (1) a robbery under § 29.02(a) and (2) an aggravator under § 29.03(a). To show that aggravated robbery is not a crime of violence, Mr. Wilkins needed to establish that both the robbery and the aggravator require a mens rea of only recklessness. Because we ultimately conclude that Mr. Wilkins’s robbery offense requires a mens rea greater than recklessness, we need not address his argument about the aggravator. 6 Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 7
See United States v. Degeare, 884 F.3d 1241, 1245 (10th Cir. 2018).
But in district court, Mr. Wilkins did not challenge classification of
aggravated robbery as a crime of violence. So we apply the plain-error
standard. See United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th
Cir. 2005) (en banc). Under this standard, Mr. Wilkins must show an error
that is plain, affects substantial rights, and seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
Ordinarily, a statute is indivisible unless we can tell with certainty
that the alternative statutory components constitute elements (rather than
means). United States v. Cantu, 964 F.3d 924, 929 (10th Cir. 2020). This
court has not defined the level of certainty required for divisibility; at a
minimum, we must be “at least more certain than not that a statute’s
alternatives constitute elements.” United States v. Degeare, 884 F.3d 1241,
1248 n.1 (10th Cir. 2018) (emphasis in original). But given the plain-error
standard, our ultimate question is whether classification of the statutory
components as elements would have constituted an obvious error. 4 See
pp. 3–4, 6–7, above.
4 Mr. Wilkins argues that we need not “‘definitively’ conclude that Texas aggravated robbery is indivisible.” Appellant’s Supp. Reply Br. at 2. We agree. Under the plain-error standard, we don’t require a defendant to conclusively prove indivisibility. See, e.g., United States v. Cantu, 964 F.3d 924, 935 (10th Cir. 2020).
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B. The district court could have reasonably considered the statutory components of Texas robbery as elements.
To determine whether the statutory components constitute elements,
we start by considering the pertinent state’s caselaw, the pattern jury
instructions, and the statute itself. See United States v. Cantu, 964 F.3d
924, 928 (10th Cir. 2020) (the state’s caselaw and the statutory text);
Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir. 2020) (the pattern jury
instructions). If those sources show with certainty whether the separate
statutory components constitute elements or means, the inquiry ends.
Cantu, 964 F.3d at 928. If the characterization remains uncertain, the court
can “peek” at the record to determine whether the statutory components
constitute elements or means. Id. at 928–29.
1. Pattern Jury Instructions and State Caselaw
Texas’s pattern jury instructions suggest that the statutory
components are elements. But Mr. Wilkins points to two Texas state-court
opinions as proof that the statutory components are means:
a. Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014)
b. Burton v. State, 510 S.W.3d 232 (Tex. Ct. App. 2017)
These opinions provide little help in characterizing the statutory
components as elements or means.
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a. Texas’s Criminal Pattern Jury Charges
The state’s pattern jury instructions provide guidance on the content
of Texas law. Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir. 2020); see
also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45 (Tex. 2007) (“[O]ur
trial courts routinely rely on the Pattern Jury Charges in submitting cases
to juries, and we rarely disapprove of these charges.”). That guidance is
particularly helpful here because
Mr. Wilkins pleaded guilty and
the record contained no case–specific jury instructions.
See United States v. Titties, 852 F.3d 1257, 1270 n.15 (10th Cir. 2017)
(considering the state’s pattern jury instructions in similar circumstances).
In Texas, the pattern jury instructions differ for the two subsections
of the robbery statute. Compare Tex. Crim. Pattern Jury Charges § 87.2
(Robbery by Threats), with Tex. Crim. Pattern Jury Charges § 87.1
(Robbery Bodily Injury). Those differences “suggest[] that robbery by
threat and robbery by bodily injury are separate crimes within one statute.”
Martin v. Kline, No. 19-15605, 2021 WL 6102175, at *1 (9th Cir. Dec. 22,
2021) (unpublished); see also United States v. Leaverton, 895 F.3d 1251,
1255 (10th Cir. 2018) (basing divisibility in part on the uniform jury
instructions’ indication that the statutory components require proof of
different elements). So the pattern jury instructions support
characterization of the statutory components as elements. 9 Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 10
b. Cooper v. State
Despite the pattern jury instructions, Mr. Wilkins points to Cooper v.
State, 430 S.W.3d 426 (Tex. Crim. App. 2014). But there a majority of the
court didn’t agree on whether the statutory components constituted
elements or means.
In Cooper, Texas’s highest criminal court found a double jeopardy
violation when the defendant had been convicted of both “aggravated
robbery by causing bodily injury” and “aggravated robbery by threat.” Id.
at 427. Five out of eight participating judges joined the majority.
Two judges in the majority wrote concurrences, each joined by
another judge in the majority. Both concurrences agreed that “the ‘threat’
and ‘bodily’ injury elements of robbery [were] simply alternative methods
of committing a robbery.” Id. at 434 (Keller, P.J., concurring); id. at 439
(Cochran, J., concurring). Mr. Wilkins thus argues that the concurrences
definitively treat the alternative phrases in the Texas robbery statute as
means rather than elements.
But the cited statements come from the concurrences, not the
majority opinion. The concurrences included only a plurality (four of the
eight judges). And under Texas law, the plurality does not constitute
binding authority. See Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175,
176–77 (Tex. 1994) (concluding that a prior plurality opinion didn’t
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constitute authority for future cases when “a majority of the sitting court”
had not agreed on the principles of law).
Mr. Wilkins argues that the cited statements garnered a court
majority because
the four concurring judges had joined the majority and
a fifth judge in the majority had not expressed disagreement.
But we cannot read the fifth judge’s silence as implicitly adopting the
reasoning of the concurrences. See Sands v. State, 64 S.W.3d 488, 494–95
(Tex. Ct. App. 2001) (concluding that a prior concurrence didn’t reflect a
majority of the court when three justices would reach the same outcome
but didn’t join the majority’s reasoning). After all, the fifth judge in the
majority could have incorporated this position if he had agreed with the
concurrences.
Mr. Wilkins argues that even if the concurrences do not bind us, they
show that the double-jeopardy question turned on classification as
elements or means. In support, Mr. Wilkins observes that
the dissenting judges in Cooper found no violation of double jeopardy, reasoning that robbery-by-injury and robbery-by- threat are different offenses and
Cooper overruled an opinion addressing classification of robbery-by-threat and robbery-by-assault as means or elements.
Granted, we have consulted double-jeopardy cases when deciding
divisibility. See, e.g., United States v. Cantu, 964 F.3d 924, 930 (10th Cir.
11 Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 12
2020); United States v. McKibbon, 878 F.3d 967, 975 (10th Cir. 2017). But
when we’ve considered double-jeopardy cases, their reasoning has clarified
the characterization as elements or means. For example, we relied on a
state-court opinion to find indivisibility because the court had found a
legislative intent “to create a single, unitary offense” in enacting the
pertinent statute. United States v. McKibbon, 878 F.3d 967, 975 (10th Cir.
2017) (internal quotation marks & citation omitted). Similarly, we
interpreted an opinion to support indivisibility when the state court had
recognized that two counts addressed a single offense and shared the same
elements. United States v. Cantu, 964 F.3d 924, 930 (10th Cir. 2020).
In contrast, the majority opinion in Cooper noted in a single
sentence, without any explanation, that the court had found a double-
jeopardy violation, saying only that the court had “review[ed] the opinion
of the court of appeals, the record, and the briefs of the parties.” Cooper v.
State, 430 S.W.3d 426, 427 (Tex. Crim. App. 2014) (majority opinion).
Without an explanation for this finding, we have little to help us classify
the statutory components as elements or means. So the district court
wouldn’t have committed an obvious error under Cooper by declining to
treat the statutory components as means.
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c. Burton v. State
Mr. Wilkins also relies on Burton v. State, 510 S.W.3d 232 (Tex. Ct.
App. 2017). But Burton didn’t expressly address classification as elements
or means.
In Burton, an intermediate appellate court found no violation of the
defendant’s right to a unanimous verdict when the jury could infer
aggravated robbery from either a bodily injury or threat. Id. at 237. The
Burton court ultimately held that “causing bodily injury or threatening the
victim [were] different methods of committing the same [aggravated
robbery] offense.” Id. (emphasis added). But what did the court mean by
methods? The court did not say, leaving it “unclear whether the [Burton]
court was referring to the elements of a crime, the means of satisfying a
single element, or the crimes set forth by a statute under a [divisibility]
analysis.” United States v. Lerma, 877 F.3d 628, 634 n.4 (5th Cir. 2017).
Despite this lack of clarity in Burton, Mr. Wilkins interprets the
court’s use of the term methods as synonymous with means. This
interpretation is possible, but not definitive, for courts sometimes use the
term methods when referring to alternative statutory components that could
consist of either elements or means. See, e.g., United States v. Harris, 950
F.3d 1015, 1017 (8th Cir. 2020) (“If the statute lists alternative methods of
committing the offense, we must determine whether the statute lists
alternative elements that define separate crimes and must be found by a 13 Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 14
jury or whether the statute merely ‘specifies various means of fulfilling the
crime’s elements.’” (quoting United States v. Doyal, 894 F.3d 974, 975
(8th Cir. 2018) (emphasis added))).
Mr. Wilkins also characterizes the statutory components of Texas
robbery as means because Burton did not require jury unanimity on
whether the defendant had committed robbery by threat or by injury.
Burton v. State, 510 S.W.3d 232, 236 (Tex. App. 2017); see also United
States v. Degeare, 884 F.3d 1241, 1249–50 (10th Cir. 2018) (basing
indivisibility on a jury’s ability to find guilt despite internal disagreement
among the jury). But if Mr. Wilkins were right, we would have an internal
conflict among Texas’s intermediate appellate courts. In an earlier opinion,
Woodard v. State, for example, the Texas Court of Appeals had held that
the robbery statute “provide[d] two separate, underlying robbery
offenses—robbery causing bodily injury and robbery by threat.” 294
S.W.3d 605, 608 (Tex. Ct. App. 2009).
In Burton, the court didn’t address—much less overrule—Woodard’s
characterization of the two statutory components as separate offenses. 5 So
5 The Burton court did refer to Woodard in a footnote. But that reference addressed only Woodard’s consideration of the aggravating factors of aggravated robbery, stating that they involved “simply descriptions or means by which the underlying offense of robbery causing bodily injury can be committed.” Burton v. State, 510 S.W.3d 232, 237 n.4 (Tex. Ct. App. 2017) (citing Woodard v. State, 294 S.W.3d 605, 609 (Tex. Ct. App. 2009)).
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the district court wouldn’t have committed an obvious error by declining to
characterize the statutory components as means based on Burton.
* * *
The cited state-court opinions thus do not resolve the issue of
divisibility.
2. Statutory Text
Besides the pattern jury instructions and case law, we also consider
the statute itself. The alternative statutory components, listed in separate
numbered paragraphs, 6 involve not only different conduct but also different
elements. “The inclusion of different sets of mens rea elements is strong
evidence that the Texas robbery statute is divisible,” involving a difference
in elements rather than means. Martin v. Kline, No. 19-15605, 2021 WL
6102175, at *1 (9th Cir. Dec. 22, 2021) (unpublished); see also United
States v. Garrett, 24 F.4th 485, 489 (5th Cir. 2022) (reasoning that the
statutory components in Texas’s robbery statute constitute elements in part
6 Granted, we have held that this factor alone would not show with certainty that the statutory components constitute elements. United States v. Degeare, 884 F.3d 1241, 1253 (10th Cir. 2018). But we can consider this factor as one of the statutory characteristics to determine whether the statutory components constitute elements or means.
Mr. Wilkins points out that the Supreme Court hasn’t listed the existence of separate subsections as a factor suggesting divisibility. But we often consider factors beyond those that the Supreme Court has considered. See, e.g., United States v. Hamilton, 889 F.3d 688, 696 (10th Cir. 2018).
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because of the different mental states for robbery-by-injury and robbery-
by-threat).
We can also consider analogous state statutes in determining
divisibility. See, e.g., Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir.
2020). For example, Texas’s assault statute contains three subdivisions in
separate paragraphs, divided by semicolons. Each paragraph describes
different behavior and mens rea. See Tex. Penal Code § 22.01. 7 These
subdivisions, according to the Texas Court of Criminal Appeals, describe
“three distinct criminal offenses.” Landrian v. State, 268 S.W.3d 532, 540
(Tex. Crim. App. 2008). The court thus explained that “aggravated assault
by causing bodily injury” and “aggravated assault by threat” were two
separate crimes: “The first is a result-oriented offense and the second is a
conduct-oriented offense.” Id.; see also United States v. Garrett, 24 F.4th
7 In Texas, a person commits assault “if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.”
Tex. Penal Code Ann. § 22.01.
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485, 489 (5th Cir. 2022) (“The Texas simple robbery statute creates two
distinct crimes, robbery-by-injury and robbery-by-threat.”).
Mr. Wilkins points out that the two statutory components trigger the
same punishments. The presence of the same punishment suggests
characterization as means, but that suggestion isn’t dispositive. United
States v. Bouziden, 725 F. App’x 653, 657 (10th Cir. 2018) (unpublished). 8
3. Record Documents
When uncertainty remains after considering the pattern jury
instructions, state caselaw, and the state statute itself, we can “peek” at the
record documents to determine whether the items listed in the statute are
elements or means. Mathis v. United States, 136 S. Ct. 2243, 2256–57
(2016) (quoting Rendon v. Holder, 782 F.3d 466, 473–474 (9th Cir. 2015)
(Kozinsky, J., dissenting)). 9
Mr. Wilkins argues that the record supports characterization as
means because the state court did not call the charge against Mr. Wilkins
“anything but ‘aggravated robbery’” or cite a specific subsection of the
robbery statute. Appellant’s Supp. Reply Br. at 4 n.1. For this argument,
Mr. Wilkins cites multiple orders deferring adjudication.
8 Bouziden is persuasive but not precedential. See 10th Cir. R. 32.1(A). 9 Mr. Wilkins attaches the relevant documents to his supplemental brief and requests judicial notice of these documents. See Fed. R. Evid. 201(b), (c)(2), (d). We grant his request.
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But in “peeking” at the record to determine divisibility, we consider
only “conclusive records made or used in adjudicating guilt,” such as the
charging document, jury instructions, and plea agreement. United States v.
Abeyta, 877 F.3d 935, 942 (10th Cir. 2017) (quoting Shepard v. United
States, 544 U.S. 13, 21 (2005)). Orders deferring adjudication do not help
us on divisibility. See id. (declining to “peek” at the docket sheet because
it falls short of being a “‘conclusive record[] made or used in adjudicating
guilt’”).
In the indictment, only the first paragraph sets out a charge of
aggravated robbery. This paragraph includes
one subsection of robbery (“intentionally or knowingly threaten[ing] or plac[ing] another in fear of imminent bodily injury or death”), § 29.02(a)(2), and
one aggravator (“us[ing] and possess[ing] a deadly weapon”), § 29.03(a)(2).
In four additional paragraphs, the indictment states how Mr. Wilkins had
committed robbery by “intentionally, knowingly and recklessly” causing
bodily injury to the victim under § 29.02(a)(1), but not “serious” bodily
injury—an aggravator under § 29.03(a)(1). True Bill of Indictment, No.
219-81050-99 (Collin Cnty., Texas Dist. Ct. Nov. 10, 1999). And none of
these paragraphs refer to any additional aggravators under § 29.03(a). See
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id. 10 Because the indictment includes only one charge of aggravated
robbery and that charge refers only to one statutory component of Texas
robbery under § 29.02(a), we can infer that the statute contains a list of
elements rather than means. Mathis v. United States, 136 S. Ct. 2243, 2257
(2016).
Mr. Wilkins’s guilty plea also supports characterization as elements.
See United States v. Adkins, 883 F.3d 1207, 1215 (9th Cir. 2018)
(concluding that a plea agreement shows that the statutory elements
constitute different elements rather than means). When Mr. Wilkins
pleaded guilty, he admitted only the conduct alleged in the first paragraph
of the indictment, the part charging aggravated robbery: “I . . . did then
and there intentionally and knowingly, while in the course of committing
theft of property and with intent to obtain and maintain control of said
property, threaten and place [the victim] in fear of imminent bodily injury
and death, and used and exhibited a deadly weapon, namely: a firearm.”
Stipulation of Facts, State v. Wilkins, No. 219-81050-99 (Collin Cnty.,
Texas Dist. Ct. Dec. 9, 1999). This admission refers only to one part of the
statute on aggravated robbery.
10 The indictment also includes one paragraph on criminal attempt, alleging that Mr. Wilkins committed aggravated robbery and robbery through acts “amounting to more than mere preparation that tend[ed] but fail[ed] to effect the commission of offense intended.” Tex. Penal Code § 15.01(a). 19 Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 20
The indictment and stipulation arguably leave some uncertainty on
divisibility. For example, the indictment includes multiple paragraphs
under the heading “aggravated robbery” without explaining whether the
charge relates to one crime or multiple crimes. Judges could thus differ in
how they interpret their peeks at the state-court records. But the mere
existence of uncertainty and reasonable disagreement does not mean that
characterization as elements would have constituted an obvious mistake.
C. Two other circuits have ruled that the statutory components of Texas robbery constitute elements, and we are reluctant to create a circuit split.
Our court hasn’t addressed the divisibility of the Texas statute on
robbery or aggravated robbery. But the Fifth and Ninth Circuits have
addressed the divisibility of Texas robbery, and both have treated the
statutory components as elements. See United States v. Garrett, 24 F.4th
485, 489 (5th Cir. 2022); Martin v. Kline, No. 19-15605, 2021 WL
6102175, at *1 (9th Cir. Dec. 22, 2021) (unpublished); United States v.
Wehmhoefer, 835 F. App’x 208, 211–12 (9th Cir. 2020) (unpublished).
Granted, these opinions aren’t binding on a question of Texas law. See
United States v. Faulkner, 950 F.3d 670, 674 n.5 (10th Cir. 2019) (“[O]ur
divisibility inquiry looks to state, not federal, court decisions.”). But one
of the two circuits to address the issue was the Fifth Circuit. And several
other circuits ordinarily defer to a federal circuit court’s interpretation of
state law when the circuit includes that state. See Whitewater W. Indus.,
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Ltd. v. Alleshouse, 981 F.3d 1045, 1051 (Fed. Cir. 2020); In re Dow
Corning Corp., 778 F.3d 545, 549 (6th Cir. 2015); Desiano v.Warner-
Lambert & Co., 467 F.3d 85, 90 (2d Cir. 2006), aff’d sub nom., Warner-
Lambert Co., LLC v. Kent, 552 U.S. 440 (2008); Dawn Equip. Co. v.
Micro-Trak Sys., Inc., 186 F.3d 981, 989 n.3 (7th Cir. 1999); Charter Oil
Co. v. Am. Employers’ Ins. Co., 69 F.3d 1160, 1164 (D.C. Cir. 1995). 11 For
example, the Sixth Circuit expressly stated that it would defer to the Fifth
Circuit in interpreting Texas law on divisibility. See United States v.
Cavazos, 950 F.3d 329, 335 & n.2 (6th Cir. 2020).
Even without such deference, we are ordinarily reluctant to create a
circuit split without a “sound reason.” United States v. Thomas, 939 F.3d
1121, 1130–31 (10th Cir. 2019) (quoting Anderson v. Private Cap. Grp.,
549 F. App’x 715, 718 (10th Cir. 2013) (unpublished)). Because Mr.
Wilkins presents no compelling basis to create a circuit split based on the
pattern jury instructions, the state caselaw, the state statute, or the record
documents, we lack a sound reason to reject the other circuit courts’
characterization of the statutory components as elements. Under the plain-
11 The Supreme Court takes a similar approach. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16 (2004) (“Our custom on questions of state law ordinarily is to defer to the interpretation of the Court of Appeals for the Circuit in which the State is located.”), abrogated in part on other grounds, Lexmark Intern., Inc. v. Static Control Components, 572 U.S. 118, 127 (2014).
21 Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 22
error standard, we thus conclude that the district court wouldn’t have
committed an obvious error by characterizing the statutory components as
elements.
III. Under the modified categorical approach, Mr. Wilkins was convicted of a crime of violence.
Because the district court would not have obviously erred by
considering the statutory components as elements, we must
apply the modified categorial approach and
consider which crime was committed.
In pleading guilty, Mr. Wilkins stipulated to facts matching the crime of
intentionally or knowingly threatening or putting another in fear of
imminent bodily injury or death (using or exhibiting a deadly weapon).
Tex. Penal Code § 29.02(a)(2), § 29.03(a)(2). And Mr. Wilkins does not
deny that this offense would constitute a crime of violence under the
sentencing guidelines.
IV. Conclusion
If an error exists, it would not have been obvious. For an obvious
error on divisibility, the defendant need not identify a precedent or state
case addressing the same statute. See United States v. Cantu, 964 F.3d 924,
935 (10th Cir. 2020) (precedent); United States v. Titties, 852 F.3d 1257,
1272 n.19 (10th Cir. 2017) (state case). But merely pointing to an
uncertainty wouldn’t satisfy the plain-error standard. Two circuit courts
22 Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 23
have concluded that the Texas robbery statute identifies two separate
crimes, and one of those circuits sometimes obtains deference when
applying Texas law. See pp. 19–21, above. So even if the district court had
erred, the error would not have been obvious.
The district court could have reasonably viewed the statutory
components as elements. The statutory components provide different mens
rea requirements in separate paragraphs, the pattern jury instructions refer
to the separate statutory components as different crimes, and the
indictment and factual basis for the plea clarify that Mr. Wilkins was
charged with a crime requiring intentional or knowing conduct. Given
these circumstances, the district court would not have committed an
obvious error by characterizing the statutory components as elements.
In the absence of an obvious mistake, application of the modified
categorical approach would not have constituted a plain error. The
stipulation of facts shows that Mr. Wilkins pleaded guilty to the set of
elements requiring intentional or knowing conduct. So if the district court
had erred in applying the modified categorical approach, the error would
not have been plain. We thus affirm the sentence.