by Dale Chappell

The U.S. Court of Appeals for the Eleventh Circuit held that a Georgia prior conviction for making terroristic threats is not a violent felony under the Armed Career Criminal Act (“ACCA”), clarifying its prior cases that had seemingly held that it was.

The case was a direct appeal taken by Najee Oliver, who pleaded guilty to a single count of being a felon in possession of a firearm, under 18 U.S.C. § 922(g), and was hit with the 15-year mandatory minimum penalty under the ACCA. The U.S. District Court for the Southern District of Georgia agreed with the Government that Oliver’s two prior drug convictions and his Georgia terroristic threats conviction qualified him for the ACCA sentence. Without it, he faced a maximum of 10 years in prison.

The question came down to whether the terroristic threats statute is divisible to allow the district court to look into Oliver’s state court records to see if he was convicted of a part of the statute that requires the use of force against a person.

Under O.C.G.A § 16-11-37(a), a person makes a terroristic threat if he “threatens [1] to commit any crime of violence, [2] to release any hazardous substance, ... or [3] to burn or damage property with the purpose of terrorizing another.” The Government argued that these three parts were distinct “elements” making the statute divisible.

A statute is divisible if it sets out alternative elements, effectively creating multiple crimes within the statute. However, if the alternative parts are merely different ways (or “means”) of committing the single offense under the statute, then the statute is indivisible. Mathis v. United States, 136 S. Ct. 2243 (2016).

This was a question of first impression for the Court. The Government argued that the Court had already held in United States v. Greer, 440 F.3d 1267 (11th Cir. 2006), that a Georgia terroristic threats conviction qualifies as a crime of violence under the ACCA. However, the Court clarified that its holding in Greer was only that “determining the nature of a prior conviction for ACCA purposes was a determination for a judge, not a jury to make.”

The Court also recognized that Greer had recently challenged his prior Georgia conviction in a 28 U.S.C. § 2255 motion, and the Court held that the prong forming Greer’s prior conviction qualified as a crime of violence for the ACCA. But, the Court clarified that both Greer and the Government agreed that the Georgia statute was divisible, so it went along and never actually analyzed whether it really was. Greer v. United States, 749 F. App’x. 887 (11th Cir. 2018) (unpublished).

Now with the question properly before the Court, it concluded that Georgia’s terroristic threats statute is not divisible. First, the Court found that the statute does not assign different punishments to the alternative parts. That was the first method that Mathis instructed courts on how to determine whether a statute is divisible.

The second method under Mathis is whether the state case law suggests that the statute covers multiple crimes. The Court found that state cases do not treat the terroristic threats statute as having multiple offenses within the statute.

If those methods don’t work, the third Mathis method requires a look at the jury instructions for the statute to see if they define different elements for the different parts of the statute, requiring the jury to find these elements. The Court acknowledged the instructions do appear divisible, but a closer look shows they are describing just one offense.

Concluding that Georgia’s terroristic threats statute is indivisible, the Court held that “the least of the acts criminalized” by the statute did not meet the ACCA requirements that the prior conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Accordingly, the Court reversed the district court’s ACCA sentence and remanded to resentence Oliver without the ACCA enhancement. See: United States v. Oliver, 946 F.3d 1276 (11th Cir. 2020).

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Writer’s note: Those of you who have a prior Florida conviction for “trafficking in cocaine,” under Fla. Stat. § 893.135, should note the Court’s reliance on Cintron v. United States Att’y Gen., 882 F.3d 1380 (11th Cir. 2018). In that little-celebrated case, the Court applied the Mathis analysis to § 893.135 and held that it is not divisible and therefore overbroad for use as an aggravated felony in an immigration case. Cintron overturned the Court’s pre-Mathis cases holding that § 893.135 is divisible. Maybe Cintron received little attention because it was an immigration case. But the Eleventh Circuit has repeatedly said that immigration cases apply just the same in criminal cases, just like it did in Oliver’s case. 

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