FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          March 13, 2018

                                                                           Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                             Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 17-6080

JOSEPH R. DEGEARE,

      Defendant - Appellant.
                      _________________________________

                    Appeal from the United States District Court
                       for the Western District of Oklahoma
                (D.C. Nos. 5:16-CV-00648-C and 5:13-CR-00283-C-1)
                       _________________________________

Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender with him on the briefs), Denver, Colorado, for Defendant-Appellant.

Ashley Altshuler, Assistant United States Attorney (Mark A. Yancey, United States
Attorney with her on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
                        _________________________________

Before HOLMES, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

MORITZ, Circuit Judge.
                    _________________________________

      Under the Armed Career Criminal Act (ACCA) of 1984, 18 U.S.C. § 924(e),

an offender convicted of violating 18 U.S.C. § 922(g)(1) faces an enhanced prison

sentence if he or she has at least three prior convictions for violent felonies or serious

drugs offenses. In theory, deciding what offenses constitute violent felonies should
be simple enough. But in practice, it can be a tricky business—especially because we

must be “certain” that the violent-felony moniker “necessarily” applies to a particular

offense before we can treat that offense as an ACCA predicate. United States v.

Titties, 

, 1268 (10th Cir. 2017) (quoting United States v. Huizar, 

, 1195 (10th Cir. 2012)).

      We haven’t yet addressed the precise level of certainty this standard requires.

We need not do so today. Whatever the term “certainty” might mean, 

v. United States, 

, 2257 (2016)), it doesn’t encompass the

significant doubt we’re left with here. And because we can’t be “certain” that the

offense at issue in this appeal is “necessarily” a violent felony, 

that

the district court erred in treating it as one for purposes of denying Joseph Degeare’s

28 U.S.C. § 2255 motion. Accordingly, we reverse.

                                      Background

      In 2014, Degeare pleaded guilty to being a felon in possession of a firearm, see

§ 922(g)(1), and the sentencing court imposed a 15-year prison sentence under the

ACCA, see § 924(e)(1) (imposing mandatory minimum prison sentence of 15 years

for § 922(g)(1) conviction if offender has at least “three previous convictions . . . for

a violent felony or a serious drug offense”). In doing so, the sentencing court treated

five of Degeare’s previous Oklahoma convictions as ACCA predicates: (1) his 1990

conviction for forcible sodomy, see Okla. Stat. Ann. tit. 21, § 888 (1982); (2) his two

1994 convictions for forcible sodomy, see 

(1992); (3) his 1994 conviction



                                            2
for lewd molestation of a minor, see 

(1992); and (4) his 2003 conviction

for possession with intent to distribute, see Okla. Stat. Ann. tit. 63, § 2-401 (2002).

       Degeare didn’t appeal. But in 2015, he sought habeas relief under § 2255.

After the district court denied his § 2255 motion, Degeare filed an untimely notice of

appeal. We dismissed, and the Supreme Court denied review.

       Relying on Johnson v. United States, 

(2015), and Welch v.

United States, 

(2016), Degeare then sought and received

authorization to file a second or successive § 2555 motion. See § 2255(h)(2);

28 U.S.C. § 2244(b)(3)(C). In that motion, Degeare argued that the sentencing court

erred in treating four of his previous convictions as ACCA predicates: (1) his 1990

conviction for forcible sodomy, (2) his two 1994 convictions for forcible sodomy,

and (3) his 1994 conviction for lewd molestation of a minor. Specifically, Degeare

asserted that forcible sodomy and lewd molestation only constitute violent felonies

under the ACCA’s residual clause, see § 924(e)(2)(B)(ii), which the Supreme Court

struck down as unconstitutionally vague in Johnson, 

; 

(holding that rule announced in Johnson applies retroactively to

cases on collateral review). After Johnson and Welch, Degeare insisted, only his 2003

conviction for possession with intent to distribute remains an ACCA predicate, thus

rendering the ACCA’s sentencing enhancement inapplicable. See § 924(e)(1)

(requiring at least “three previous convictions . . . for a violent felony or a serious

drug offense” to trigger enhancement).



                                             3
       The government didn’t dispute that Degeare’s 1990 forcible-sodomy

conviction and 1994 lewd-molestation conviction no longer qualify as ACCA

predicates after Johnson and Welch. But it maintained that Degeare nevertheless isn’t

entitled to relief. In support, it asserted that although Degeare’s two 1994 convictions

for forcible sodomy no longer trigger the enhancement under the ACCA’s now-

defunct residual clause, see § 924(e)(2)(B)(ii), those convictions are for offenses that

nevertheless remain violent felonies under the ACCA’s elements clause, see

§ 924(e)(2)(B)(i) (defining violent felony, in relevant part, as an offense that “has as

an element the use, attempted use, or threatened use of physical force against the

person of another”); 

(“Today’s decision does not call

into question . . . the remainder of the [ACCA’s] definition of a violent felony.”).

Accordingly, the government maintained, Degeare continues to have three

convictions for violent felonies or serious drug offenses, thus rendering harmless any

Johnson error the sentencing court committed by relying on the ACCA’s residual

clause.

       The district court agreed. First, it concluded that Oklahoma’s forcible sodomy

statute is divisible because it describes three separate offenses. Second, it determined

that Degeare specifically pleaded guilty to violating § 888(B)’s third subsection, which

prohibits “sodomy accomplished with any person by means of force, violence, or threats

of force or violence accompanied by apparent power of execution regardless of the age of

the victim or the person committing the crime.” § 888(B)(3). Finally, it ruled that this

particular subsection of Oklahoma’s forcible-sodomy statute constitutes a violent felony

                                             4
under § 924(e)(2)(B)(i)’s elements clause, thus rendering harmless any Johnson error.

Accordingly, the district court denied Degeare’s § 2255 motion. Degeare appeals.

                                           Analysis

       We review de novo the district court’s conclusion that Degeare’s 1994

convictions for forcible sodomy constitute ACCA predicates. See United States v.

Ridens, 

, 1272 (10th Cir. 2015). In arguing they do not, Degeare

advances four separate arguments. But to resolve this appeal, we need address only

one: his assertion that § 888 isn’t divisible.

       The parties disagree on this point. But before we resolve their disagreement, it’s

worth noting a few areas where the parties’ positions overlap. First, neither party disputes

that Degeare is only subject to the ACCA’s sentencing enhancement if he has at least

three prior convictions for violent felonies or serious drug offenses. See § 924(e)(1).

Likewise, the parties agree that (1) Degeare’s 2003 conviction for possession with intent

to distribute constitutes an ACCA predicate and (2) his 1990 forcible-sodomy conviction

and his 1994 lewd-molestation conviction do not. Finally, the parties agree that if § 888

isn’t divisible, then Degeare’s 1994 convictions for forcible sodomy don’t constitute

ACCA predicates—a conclusion that would require us to reverse the district court’s order

denying his § 2255 motion. In other words, the parties agree that if we conclude § 888

isn’t divisible, that conclusion is dispositive of this appeal.

       To understand why the parties agree on this last point, some background

information is helpful. As explained above, Degeare is only subject to the ACCA’s

sentencing enhancement if his 1994 convictions for forcible sodomy constitute violent

                                                 5
felonies under the elements clause. And in determining whether an offense constitutes a

violent felony under the ACCA’s elements clause, courts use one of two methods: (1) the

pure categorical approach or (2) the modified categorical approach. Under the pure

categorical approach, we examine the statute—and only the statute—and ask whether “it

can be violated without the ‘use, attempted use, or threatened use of physical force.’”

(quoting § 924(e)(2)(B)(i)). If so, “then any conviction under

that statute will not count toward an ACCA enhancement” under the elements clause. 

see also United States v. Hammons, 

, 1054 (10th Cir. 2017)

(explaining that “we look to the least of the acts criminalized by” statute of conviction in

determining whether that statute “reaches any conduct” that doesn’t satisfy

§ 924(e)(2)(B)(i)), cert. denied, No. 17-6850, 

(U.S. Jan. 8, 2018).

       This pure categorical approach applies to statutes that aren’t divisible, i.e., those

that contain “a single, indivisible set of elements.” Descamps v. United States, 

, 258 (2013). But if the statute in question is divisible, i.e., if it “contains more than

one crime,” then we instead apply the modified categorical approach. 

. Unlike the pure categorical approach, the modified categorical approach doesn’t

begin and end solely with our examination of the relevant statute. Instead, “[t]he

modified categorical approach allows a court to peer around the statute of conviction and

examine certain record documents underlying the defendant’s prior offense” to determine

which of the statute’s alternative crimes the defendant was actually convicted of

committing. 

Once we make that threshold determination, we can then apply

the categorical approach to the relevant statutory alternative. See 

That is,

                                               6
we can then ask whether the crime defined by that specific statutory alternative “has as an

element the use, attempted use, or threatened use of physical force against the person of

another.” § 924(e)(2)(B)(i); see also 

(explaining that once

court “determine[s] which alternative [offense] formed the basis of the defendant’s prior

conviction,” it “can then do what the categorical approach demands”); United States v.

Pam, 

, 1206–07 (10th Cir. 2017) (concluding that statute of conviction was

divisible; looking to record documents to discern which of statute’s alternative offenses

formed basis of defendant’s convictions; and then asking whether those particular

alternatives satisfy elements clause).

       Here, Degeare pleaded guilty to two counts of forcible sodomy, which Oklahoma

defined at the relevant time as:

       1. sodomy committed by a person over [18] years of age upon a person
       under [16] years of age; or

       2. sodomy committed upon a person incapable through mental illness or
       any unsoundness of mind of giving legal consent regardless of the age of
       the person committing the crime; or

       3. sodomy accomplished with any person by means of force, violence, or
       threats of force or violence accompanied by apparent power of execution
       regardless of the age of the victim or the person committing the crime.

§ 888(B)(1)–(3).

       The government concedes that, under the pure categorical approach, § 888(B)

doesn’t satisfy the elements clause. This is so, the government says, because neither

§ 888(B)(1) nor § 888 (B)(2) “has as an element the use, attempted use, or threatened use

of physical force against the person of another.” § 924(e)(2)(B)(i); see also Titties, 

(explaining that, under categorical approach, “[i]f some conduct that would

be a crime under the statute would not be a violent felony under the ACCA, then any

conviction under that statute will not count toward an ACCA enhancement”).

       In light of this concession, we will only affirm the district court’s order denying

Degeare’s § 2255 motion if the government demonstrates that (1) § 888(B) is divisible;

(2) Degeare’s forcible sodomy convictions arose under § 888(B)(3); and (3) § 888(B)(3)

satisfies the elements clause. See United States v. Garcia, 

, 948 (10th Cir.

2017) (discussing government’s burden to demonstrate that Johnson error was harmless);

n.19 (citing government’s burden to prove that prior conviction

constitutes ACCA predicate). Thus, we turn first—and, as it so happens, last—to the

divisibility question. See 

(stating that modified categorical

approach “has no role to play” if statute isn’t divisible (quoting 

)).

I.     Divisibility and the Mathis Toolbox

       A statute is divisible if it “list[s] elements in the alternative, and thereby define[s]

multiple crimes.” 

. Elements, in turn, “are what the jury must

find beyond a reasonable doubt to convict the defendant” or “what the defendant

necessarily admits when he [or she] pleads guilty.” 

Critically, not all statutory

alternatives are elements. Instead, some statutes merely “enumerate[] various factual

means of committing a single element.” 

And if a statute’s alternatives are

merely means, as opposed to elements, then the statute isn’t divisible and the modified

categorical approach doesn’t apply. See 

2256 (holding that lower court erred

                                               8
in applying modified categorical approach to statute that contained only alternative

means and therefore wasn’t divisible).

       Here, neither party disputes that the applicable statute comprises three alternatives.

It defines forcible sodomy as:

       1. sodomy committed by a person over [18] years of age upon a person
       under [16] years of age; or

       2. sodomy committed upon a person incapable through mental illness or
       any unsoundness of mind of giving legal consent regardless of the age of
       the person committing the crime; or

       3. sodomy accomplished with any person by means of force, violence, or
       threats of force or violence accompanied by apparent power of execution
       regardless of the age of the victim or the person committing the crime.

§ 888(B)(1)–(3). But the parties disagree about whether these alternatives constitute

elements—things a “jury must find beyond a reasonable doubt to convict [a] defendant”

of forcible sodomy at trial, 

—or whether they instead constitute

means—“various factual ways of committing some component of” forcible sodomy that

“a jury need not find” or, alternatively, that a defendant who pleads need not admit, 

       In deciding whether a state statute’s alternatives are elements or means, we have

several tools at our disposal. First, a state-court decision may “definitively answer[] the

question.” 

see also 

statutory alternatives were means

rather than elements because state-court decision characterized them as “‘alternative

method[s]’ of committing one offense, so that a jury need not agree” on which one




                                              9
applies (alteration in original) (quoting State v. Duncan, 

, 523 (Iowa

1981))).

       Second, “the statute on its face may resolve the issue.” 

“[i]f

statutory alternatives carry different punishments, then under [Apprendi v. New Jersey,

(2000)] they must be elements.” 

. “Conversely, if

a statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s

means of commission.” 

States v. Howard, 

, 1348 (11th

Cir. 2014)). And sometimes, the statute itself will “identify which things must be charged

(and so are elements) and which need not be (and so are means).” 

these sources of state law—the statute itself and any state-court decisions

interpreting it—don’t “provide clear answers,” then we “have another place to look: the

record of a prior conviction itself.” 

if the indictment and jury

instructions reiterate all of the statutory alternatives, “[t]hat is as clear an indication as

any that each alternative is only a possible means of commission, not an element that the

prosecutor must prove to a jury beyond a reasonable doubt. So too if those documents use

a single umbrella term.” 

“Conversely, an indictment and jury instructions

could indicate, by referencing one alternative term to the exclusion of all others, that the

statute contains a list of elements, each one of which goes toward a separate crime.” 

Mathis, employing these tools should make answering the elements-

or-means question “easy.” 

Between the record documents and state law,

Mathis assures us, “indeterminacy should prove more the exception than the rule.” 

But on the off chance that a clear answer to the means-or-elements question

                                               10
remains elusive, Mathis makes it clear what we must do—or, more precisely, what we

must not do: If “state law fails to provide clear answers” and the “record materials [don’t]

speak plainly,” then we won’t be “able to satisfy ‘[Taylor v. United States, 

(1990)]’s demand for certainty.’” 

v. United States, 

, 21

(2005)). And in the absence of such certainty, we can’t treat an offender’s prior

conviction as an ACCA predicate. See 

(noting that “we must be

‘certain’ the prior conviction ‘necessarily’ qualifies under the ACCA to apply the

enhancement” (quoting 

)). In other words, unless we are certain

that a statute’s alternatives are elements rather than means, the statute isn’t divisible and

we must eschew the modified categorical approach.1

       A.     The State-Court Decision

       Degeare argues we need only employ the first of these tools here because a state-

court decision “definitively” establishes that § 888(B)’s alternatives are means, rather

than elements. 

. In support, Degeare cites Bruner v. State, 

(Okla. Crim. App. 1980).

       1
         We haven’t yet resolved what quantum of certainty Taylor requires. At some
point, we may well be presented with a close case in which the answer to that
question will prove determinative. But this isn’t such a case. Thus, in the absence of
any briefing by either party, we decline to answer this question here. Instead, we hold
only that Taylor requires us to be at least more certain than not that a statute’s
alternatives constitute elements before we will treat that statute as divisible. In other
words, if the evidence is merely in equipoise, the modified categorical approach
won’t apply. Requiring anything less would be inconsistent with the Court’s language
in Mathis. 

–57 (allowing court to treat state statute as divisible
only if state law or record documents “definitively,” “clear[ly],” and “plainly”
establish that statute’s alternatives are elements; indicating that where answer to
means-or-elements question is instead “indetermin[ate],” courts cannot “satisfy
‘Taylor’s demand for certainty” (quoting 

)).
                                              11
       In Bruner, the defendant was charged with rape “under conjunctive theories:

(1) that the [victim] was under the age of sixteen and (2) that the act occurred by means

of force, overcoming her resistance and (3) [that the act occurred] by means of threats of

immediate injury and great bodily harm, accompanied by apparent power of execution.”

see also Okla. Stat. Ann. tit. 21, § 1111 (1971) (defining rape, in relevant

part, as sexual intercourse with a victim where (1) the victim “is under the age of [16]

years”; (2) the victim’s “resistance is overcome by force and violence”; or (3) the victim

“is prevented from resistance by threats of immediate and great bodily harm,

accompanied by apparent power of execution”); Okla. Stat. Ann. tit. 21, § 1114 (1971)

(classifying first of these alternatives as second-degree rape and second and third of these

alternatives as first-degree rape).

       On appeal, the defendant challenged his conviction, asserting that “he was denied

due process of law and may have been convicted under a nonunanimous verdict.” 

–80. In advancing the latter contention, the defendant argued that

because the jury instructions set forth the “theories of guilt . . . in the disjunctive,” it was

“conceivable . . . that the jury could have found him guilty without unanimously finding

him guilty of each and every element necessary to the crime beyond a reasonable doubt.”

In other words, he argued that some jurors might have found him guilty under

§ 1111’s first subsection (because they believed that he engaged in “an act of sexual

intercourse” with a victim who was “under the age of [16] years”), while others might

have found him guilty under § 1111’s fourth subsection (because they believed that he

did so where his victim “resist[ed] but her resistance [was] overcome by force and

                                               12
violence”), and still others might have found him guilty under § 1111’s fifth subsection

(because they believed that he did so “by threats of immediate and great bodily harm,

accompanied by apparent power of execution”). § 1111(1st), (4th), (5th).

       The Oklahoma Court of Criminal Appeals (OCCA) rejected the defendant’s jury-

unanimity argument, as well as his due-process argument. In doing so, it reasoned that

although rape can “be accomplished in different ways,” it is nevertheless “only a single

crime” under Oklahoma law. 

(emphases added) (citing

Huckleberry v. State, 

, 495 (Okla. Crim. App. 1938)). Thus, the OCCA

concluded, when the state alleges that a defendant committed rape by engaging in sexual

intercourse with a victim under the age of 16 and by force and by threats, the government

must only present sufficient evidence of any one of these “theories of guilt” to support a

conviction for the “single crime” of rape. 

Bruner holds that (1) these statutory alternatives are merely “different

ways” of committing “a single crime” and (2) a jury need not unanimously agree on any

particular one of these statutory alternatives to convict. 

a state-court

decision “of that kind exists,” it “definitively” establishes that the statutory alternatives

are means, rather than elements. 

; see also 

statutory alternatives were means based on state-court decision holding that those

alternatives were merely “‘alternative method[s]’ of committing one offense” and that “a

jury need not agree” on which one applies (alteration in original) (quoting 

)).



                                              13
       Citing the similarities between § 888(B) and the statutes at issue in Bruner,

Degeare argues that § 888(B)’s statutory alternatives must therefore be means as well.

The government disagrees, insisting that Bruner isn’t the silver bullet Degeare makes it

out to be. In support, the government advances three arguments.

       The government first points out the obvious: Degeare was convicted of forcible

sodomy, not rape. And because Bruner addresses only Oklahoma’s rape statutes, the

government asserts, it doesn’t control here.

       In light of this distinction, we agree that Bruner doesn’t “definitively answer[]”

the means-or-elements question in this case.2 

. But this hardly

dooms Bruner to irrelevancy. After all, the OCCA “has long recognized the analogy

between sodomy and rape.” Hopper v. State, 

, 165 (Okla. Crim. App. 1956);

see also Kimbro v. State, 

, 799 (Okla. Crim. App. 1990) (“[T]he principles

of law applicable to rape apply to sodomy . . . .”); Hill v. State, 

, 671 (Okla.

Crim. App. 1962) (acknowledging analogy between rape and sodomy and explaining that

legal principles that apply to former also apply to latter). And even if it hadn’t, we would

draw that same analogy based on the similarities between the rape statutes at issue in

Bruner and the sodomy statute at issue here. Compare § 1111 (defining rape, in relevant

part and in different subsections, as rape of a victim “under the age of sixteen years”; of a

victim “incapable through lunacy or any other unsoundness of mind, whether temporary


       2
        For this reason, we need not address Degeare’s suggestion that when a state-
court decision does appear to “definitively answer[]” the means-or-elements
question, 

, “the analysis ends” and we can’t employ the
other Mathis tools, Rep. Br. 5.
                                               14
or permanent, of giving legal consent”; of a victim whose “resistance is overcome by

force and violence”; or of a victim who is “prevented from resistance by threats of

immediate and great bodily harm, accompanied by apparent power of execution”), and

§ 1114 (classifying as first-degree rape any rape by an offender “over [18] years of age

upon a [victim] under the age of [14]”; of a victim “incapable through lunacy or

unsoundness of mind of giving legal consent”; “by means of force overcoming [the

victim’s] resistance”; or “by means of threats of immediate and great bodily harm,

accompanied by apparent power of execution, preventing such resistance”), with

§ 888(B) (defining forcible sodomy, in relevant part and in different subsections, as

sodomy “committed by a person over [18] years of age upon a person under [16] years of

age”; “committed upon a person incapable through mental illness or any unsoundness of

mind of giving legal consent”; or “accomplished with any person by means of force,

violence, or threats of force or violence accompanied by apparent power of execution”).

       In short, under the relevant versions of the Oklahoma statutes at issue, a defendant

can commit either rape or forcible sodomy by engaging in a particular sex act (1) with a

victim under a certain age; (2) with a victim whose mental illness or unsoundness of

mind renders the victim incapable of giving legal consent; (3) by force; or (4) by credible

threat of force. And the government makes no effort to explain why the OCCA would

treat these similar statutory alternatives as means in one context and elements in another.

Accordingly, we see no reason to think the OCCA wouldn’t extend Bruner’s analysis of

§ 1111 and § 1114 to § 888(B). See 

. Thus, the government’s first

argument fails.

                                            15
       Second, even assuming that Bruner’s holding extends to § 888(B), the government

insists that this holding is nevertheless of limited value here. That’s because, according to

the government, Bruner doesn’t actually establish that “the alternative methods of

commiting [sic] rape [are] means as opposed to elements.” Aplee. Br. 23. In support, the

government advances a two-part argument. First, it insists that the OCCA resolved the

defendant’s argument in Bruner based solely on due-process principles. Second, it asserts

that to the extent Bruner says anything about jury unanimity, that discussion isn’t

dispositive of the means-or-elements question.

       We disagree with the government’s cramped reading of Bruner. True, the OCCA

focused primarily on the defendant’s due-process argument. But it unambiguously

acknowledged (1) that the defendant was also raising a jury-unanimity argument, see

(“It is conceivable, the appellant maintains, that the jury could

have found him guilty without unanimously finding him guilty of each and every element

necessary to the crime beyond a reasonable doubt.”), and (2) that the jury instructions

indeed presented the alternative “theories of guilt . . . in the disjunctive,” 

OCCA rejected the defendant’s entire “fifth assignment of error,”

which included both the defendant’s due-process argument and his jury-unanimity

argument. 

And critically, the OCCA did so without ever suggesting that it

had any reason to think the jurors were, in fact, unanimous as to the specific statutory

alternative or alternatives that applied. 

can only conclude that the OCCA

rejected the defendant’s unanimity argument because the court instead determined that

such unanimity wasn’t required in the first place—a conclusion that flows naturally from

                                               16
the OCCA’s holding that the alternatives at issue were simply “different ways” (or

means) of committing the “single crime” of rape. 

see also Blackwell v. State,

, 16 (Okla. Crim. App. 1983) (“The unanimity guaranteed by the [Oklahoma

Constitution] is required only with respect to the ultimate issue of the appellant’s guilt or

innocence of the crime charged and not with respect to alternative means by which the

crime was committed.”). Thus, we reject the government’s invitation to elide Bruner’s

jury-unanimity analysis.

       Finally, we also reject the government’s third challenge to Degeare’s Bruner

argument—that to the extent Bruner contains a jury-unanimity analysis, that analysis

isn’t dispositive of the means-or-elements question. On the contrary, Mathis makes jury

unanimity the touchstone of the means-or-elements inquiry.

       First, in illustrating the distinction between these two concepts, Mathis

describes a hypothetical statute that requires using a deadly weapon but “spells out

various factual ways of committing [that] component of the offense,” e.g., using a

knife, gun, or 

. Because “[a] jury could convict” a defendant

under this hypothetical statute “even if some jurors ‘conclude[d] that the defendant

used a knife’ while others ‘conclude[d] he used a gun,’ so long as all agreed that the

defendant used a ‘deadly weapon,’” Mathis explains, these alternatives constitute

“legally extraneous circumstances”—i.e., means. 

original) (first

quoting Richardson v. United States, 

, 817 (1999); then quoting

). Next, Mathis goes on to apply the distinction illustrated

by this hypothetical to the real-world question before the Court: it holds that the

                                             17
statutory alternatives at issue constitute means rather than elements precisely because

a state-court decision establishes that those alternatives are merely different ways “of

committing one offense, so that a jury need not agree” on one or more of those

alternatives to convict.3 

2256 (emphasis added).

      Taking our cue from Mathis, we have likewise adopted a unanimity-focused

approach to the means-or-elements question. See, e.g., United States v. Burtons, 696

F. App’x 372, 378 n.3 (10th Cir. 2017) (unpublished) (citing Mathis for proposition

that “where jury unanimity isn’t required, statutory alternatives constitute means, not

elements”); 

(“[B]ut it is not clear whether [the statutory

alternatives] are different means to commit the same crime or whether they define

different crimes such that a jury would have to agree on a particular alternative to

convict.” (emphasis added)); 

(noting that structure of

applicable jury instruction didn’t “suggest the jury would have to agree on a

particular alternative,” thus indicating that alternatives were means rather than

elements). And our sister circuits have done the same. See, e.g., United States v.


      3
         The government also suggests that Mathis’ jury-unanimity test doesn’t apply
when the statutory alternatives “are separately listed as elements in jury instructions.”
Aplee. Br. 26. But this reasoning is circular: whether the statutory alternatives are
“listed as elements,” 

is the question—not the divining rod we
use to answer it. Moreover, we know of no authority that treats alternatives as
elements (regardless of how they appear in a particular jury instruction) in the face of
a binding state-court decision holding that a jury need not unanimously agree on one
or more of them to convict. See Sylvia v. Wisler, 

, 1313 (10th Cir.
2017) (explaining that in resolving matters of state law, federal courts “must defer to
the most recent decisions of the state’s highest court” (quoting Kokins v. Teleflex,
Inc., 

, 1295 (10th Cir. 2010))). Accordingly, we decline to recognize
such an exception to Mathis’ unanimity rule.
                                           18
Robinson, 

, 940 (9th Cir. 2017); United States v. McMillan, 

, 1057 (8th Cir. 2017); United States v. Starks, 

, 316 (1st Cir.

2017); Harbin v. Sessions, 

, 66, 67 (2d Cir. 2017); United States v. Lynn,

, 796 (7th Cir. 2017); United States v. Steiner, 

, 119 (3d

Cir. 2017); United States v. Gundy, 

, 1163 (11th Cir. 2016), cert.

denied, 

(2017); United States v. Howell, 

, 498 (5th Cir.

2016), cert. denied, 

(2017); United States v. Fuertes, 

,

498 (4th Cir. 2015).

       Accordingly, Bruner’s conclusion that a jury need not unanimously agree on

the statutory “way[]” or “ways” in which a particular defendant “accomplished” the

“single crime” of 

, “definitively” resolves that the statutory

alternatives at issue in Bruner are means rather than elements, 

. And given the similarities between those statutory alternatives and the

statutory alternatives at issue here, we conclude that Bruner weighs heavily in favor

of treating § 888(B)’s alternatives as means too. Nevertheless, because Bruner doesn’t

“definitively” resolve the means-or-elements question in this case, 

, we turn next to the other tools in the Mathis toolbox: the statutory language and the

records underlying Degeare’s convictions, see id.; 

n.19 (“Mathis

unambiguously instructs federal courts to settle, if possible, the means/elements issue

when applying the ACCA even if there is no on-point state decision.”).4


       4
        Again, we need not resolve whether, when a state-court decision does appear
to “definitively” establish that statutory alternatives are means, Mathis, 

       B.     The Statute Itself

       Mathis lists three ways in which a “statute on its face may resolve” the means-or-

elements 

. None of them resolve that question here. First,

§ 888(B)’s alternatives don’t “carry different punishments,” such that they must be

elements under Apprendi. 

. On the contrary, § 888’s penalty

provision—which is tethered solely to § 888(A)—states that “[a]ny person who forces

another person to engage in the detestable and abominable crime against nature . . . is

guilty of a felony punishable by . . . not more than [20] years” in prison.” § 888(A). Nor

is § 888(B) necessarily “drafted to offer ‘illustrative examples,’” which would indicate

that its alternatives are means.5 

(quoting 

). Likewise, § 888(B) doesn’t “itself identify which things must be charged (and

so are elements) and which need not be (and so are means).” 

the statutory characteristics that Mathis treats as relevant, the

government asserts that because § 888(B)’s alternatives appear in three separate

subsections, they must be elements. In support, it cites United States v. Maldonado-

Palma, 

(10th Cir. 2016), cert. denied, 

(2017), where we

at 2256, we may nevertheless look to the face of the statute itself or the record
documents to answer the means-or-elements question. But we note that the Mathis
Court didn’t take this approach: its inquiry started and stopped with a state-court
decision that held the relevant alternatives were means. See 

could plausibly argue that, by stating “forcible sodomy . . . include[s]”
the statutory alternatives at issue here, § 888(B) (emphasis added), § 888 provides a
“non-exhaustive list” of “illustrative examples [that] are not alternative elements.”

; see also 

. But because Degeare
expressly concedes that it’s not clear from the face of the statute that § 888(B)’s
alternatives are merely “illustrative examples,” 

, we decline to
address this possibility.
                                            20
opined, “New Mexico’s aggravated assault statute is a divisible statute because it sets out

alternative elements for aggravated assault in three subsections.” 

         The government mischaracterizes Maldonado-Palma. There, we didn’t rely on the

fact that the statutory alternatives appeared in separate subsections to conclude that they

were elements. Instead, we relied on the fact that those statutory alternatives were

elements—as established by a state-court decision indicating as much—to conclude that

the statute was divisible. See 

v. Armijo, 

, 1120 (N.M. Ct.

App. 2004)). Moreover, it doesn’t appear that the defendant in Maldonado-Palma even

argued on appeal that the statute at issue there wasn’t divisible. Instead, he argued that

even assuming the statute was divisible and the modified categorical approach therefore

applied, the government failed to produce any documents that might “demonstrate which

of the three possible forms of assault . . . supported the basis of [his] conviction.” Brief

for Appellant, Maldonado-Palma, 

(No. 15-2146), 

,

at *28. Thus, it doesn’t appear that the means-or-elements question was ever at issue

there.

         In any event, as Bruner makes clear, the fact that § 888(B)’s alternatives appear in

different subsections doesn’t demonstrate that they’re elements. One of the rape statutes

at issue in Bruner set forth its alternatives in separate subsections, and yet the OCCA held

that those alternatives were means. See § 1111 (listing alternative definitions of rape in

separate subsections); 

(holding that jury need not agree on

particular statutory alternative to convict defendant of rape). Similarly, Oklahoma’s first-

degree-murder statute lists malice-aforethought murder and felony murder in separate

                                              21
subsections of a single statute, see Okla. Stat. Ann. tit. 21, § 701.7, and yet a jury need

not unanimously agree on one alternative or the other to convict, see Crawford v. State,

, 640 (Okla. Crim. App. 1992) (describing these alternatives as different

“factual bas[e]s” on which jury need not unanimously agree; explaining that jury must

only be unanimous as to whether defendant committed “single crime” of “first[-]degree

murder”), overruled on other grounds by Malone v. State, 

(Okla. Crim.

App. 2007).

       Because nothing on the statute’s “face” answers the means-or-elements question,

, we turn to the documents underlying Degeare’s convictions.

See 

(“And if state law fails to provide clear answers, federal judges have

another place to look: the record of a prior conviction itself.”). But before we do, we

pause to recap. First, we will only treat § 888(B) as divisible if we are at least more

certain than not that its alternatives are elements. See supra note 1. Second, Bruner

strongly suggests that § 888(B)’s alternatives are means. Third, nothing “on [the] face” of

§ 888(B) suggests otherwise. 

. Thus, in light of Bruner, we will

only treat § 888(B) as divisible if the record documents “plainly” indicate that its

alternatives are elements. 

(explaining that when “record materials” don’t

“speak plainly,” we will be unable “to satisfy ‘Taylor’s demand for certainty’” (quoting

)).

       C.     The Record Documents

       Mathis lists three ways in which record documents can “speak plainly” as to

whether statutory alternatives constitute means or elements. 

the charging

                                             22
document or jury instructions “reiterat[e] all the [statutory alternatives],” this “is as clear

an indication as any that each alternative is only a possible means of commission, not an

element that the prosecutor must prove to a jury beyond a reasonable doubt.” 

same is true if the charging document or jury instructions “use a single umbrella

term.” 

indictment and jury instructions could indicate, by” instead

“referencing one alternative term to the exclusion of all others, that the statute contains a

list of elements, each one of which goes toward a separate crime.” 

by

applying these principles to the relevant jury instructions and then discuss the charging

documents.6

              1.      The Jury Instructions

       The current version of Oklahoma’s Uniform Jury Instructions provides, in relevant

part, the following instruction for forcible sodomy:

       No person may be convicted of forcible oral sodomy unless the State has
       proved beyond a reasonable doubt each element of the crime. These
       elements are:

       First, penetration;

       Second, of the mouth/vagina of the defendant/victim;

       Third, by the mouth/penis of the defendant/victim;

       6
         Because Degeare didn’t go to trial, there was no jury and hence there were no
jury instructions. Nevertheless, “the state’s uniform jury instructions can provide insight
into the means/elements question.” 

n.15.

       In Titties, we indicated that “Oklahoma’s Uniform Jury Instructions provide[d] an
additional source of state law guidance.” 

(emphasis added). We do not depart
from that characterization here. We simply opt to analyze the relevant uniform
instructions alongside the relevant charging documents because Mathis indicates the
same analysis applies to both. 

.
                                              23
       [Fourth, which is accomplished by means of force or violence, or threats of
       force or violence that are accompanied by the apparent power of
       execution.]

       You are further instructed that any sexual penetration, however slight, is
       sufficient to complete the crime.

       OR

       [Fourth, by a person over the age of eighteen on a child under the age of
       sixteen.]

       You are further instructed that any sexual penetration, however slight, is
       sufficient to complete the crime.

       OR

       [Fourth, committed upon a person incapable through mental illness or any
       unsoundness of mind of giving legal consent].

       You are further instructed that any sexual penetration, however slight, is
       sufficient to complete the crime.

Okla. Unif. Jury Instr. CR 4-128.7


       7
         As Degeare points out, it doesn’t appear that Oklahoma had a uniform
sodomy instruction at the time of his conviction. And we question whether the
current version of the instruction—whatever it might have to say about the current
status of the law—could possibly “speak plainly” as to whether Oklahoma treated
§ 888(B)’s alternatives as means or elements at the time of Degeare’s conviction. See
United States v. Starks, 

, 317 (1st Cir. 2017) (recognizing that “state laws
can change over time” and holding that, “[i]n the ACCA context . . . the relevant question
is whether the crime was divisible at the time of the defendant’s prior conviction”);
United States v. Seabrooks, 

, 1348 (11th Cir. 2016), cert. denied, 

(2017) (“If the state statute was divisible at the time the defendant was convicted of
violating it, and if at least one but not all of the different crimes created by the statute
count as violent felonies under the ACCA’s elements clause, then [court will apply
modified categorical approach].” (emphasis added)). But we need not resolve this
question; even assuming that we may rely on the current version of the instruction, it
doesn’t plainly indicate that § 888(B)’s alternatives are elements.

                                            24
       In arguing that this instruction indicates § 888(B)’s alternatives are elements, the

government first points to the “Notes on Use” following the instruction; those notes

expressly state that a “trial court should select the Fourth Element that is supported by the

evidence.” Okla. Unif. Jury Instr. CR 4-128 notes on use (emphasis added). But simply

calling a statutory alternative an element doesn’t make it so. Cf. 

(“The label a State assigns to a crime—whether ‘burglary,’ ‘breaking and entering,’

or something else entirely—has no relevance to whether that offense is an ACCA

predicate.”). This much is clear from the fact that the “Notes on Use” following

Oklahoma’s first-degree-rape instruction likewise refer to § 1111’s alternatives—

alternatives that Bruner establishes are actually 

—as

“element[s].” Okla. Unif. Jury Instr. CR 4-120 notes on use.8 Thus, the “Notes on Use”

following Okla. Unif. Jury Instr. CR 4-128 don’t plainly indicate that § 888(B)’s

alternatives are elements.

       Next, the government argues that by setting forth § 888(B)’s alternatives in

separate subsections of the instruction, rather than “bunch[ing them] together,” the

instruction indicates that Oklahoma treats § 888(B)’s statutory alternatives as elements.

See 

(“The instruction bunches together the statutory purpose

alternatives into a single element. It does not suggest the jury would have to agree on a

particular alternative to satisfy the fifth element.”).



       8
         Consistent with the government’s reliance on the current version of Okla.
Unif. Jury Instr. CR 4-128, we cite the current version of Okla. Unif. Jury Instr. CR 4-120
as well.
                                               25
       But Oklahoma’s first-degree-rape instruction likewise doesn’t “bunch[] together”

§ 1111’s statutory alternatives. 

Oklahoma’s uniform forcible-sodomy

instruction, Oklahoma’s uniform rape instruction sets forth the relevant alternatives

separately and divides them by “OR.” Compare Okla. Unif. Jury Instr. CR 4-128, with

Okla. Unif. Jury Instr. CR 4-120. Nevertheless, the OCCA has held that those alternative

ways of committing rape are means rather than elements. 

.

Moreover, although Oklahoma’s forcible sodomy statute doesn’t “bunch[] together” the

statutory alternatives at issue here, 

, neither does it provide

wholly separate instructions for each of those alternatives, cf. 

(holding that statutory alternatives were elements rather than means where New Mexico

provided “three separate and distinct instructions”—one for each of statute’s three

alternatives); Burtons, 696 F. App’x at 379 (holding that statutory alternatives were

elements rather than means where Oklahoma provided separate jury instruction for each

statutory alternative).

       Finally, the “Notes on Use” following Oklahoma’s forcible-sodomy instruction do

indicate that a trial court should select the § 888(B) alternative “that is supported by the

evidence” in a particular case. Okla. Unif. Jury Instr. CR 4-128 notes on use. And this

could arguably suggest that those alternatives are elements. See 

(“[J]ury instructions could indicate, by referencing one alternative term to the

exclusion of all others, that the statute contains a list of elements, each one of which goes

toward a separate crime.”). But the “Notes on Use” don’t expressly preclude a trial court

from instructing the jury on more than one (or even all) of § 888(B)’s alternatives if the

                                              26
evidence warrants such an instruction. Okla. Unif. Jury Instr. CR 4-128 notes on use. Nor

do they prohibit the trial court, in that scenario, from “bunch[ing] together” those

statutory alternatives “into a single element.” 

; see also 

(explaining that when jury instruction “reiterat[es] all” of statute’s

alternatives, “[t]hat is as clear an indication as any that each alternative is only a possible

means of commission, not an element that the prosecutor must prove to a jury beyond a

reasonable doubt”). Accordingly, we reject the government’s assertion that the jury

instructions “‘plainly’ treat the alternatives as elements, not means.” Aplee. Br. 21

(quoting 

).

              2.      The Charging Documents

       Mathis leaves us with one final avenue for determining whether statutory

alternatives constitute means or elements: examination of the charging document. 136 S.

Ct. at 2257. If the charging document reiterates all the statutory alternatives, that

indicates those alternatives are means. But if it instead “referenc[es] one alternative term

to the exclusion of all others, that [indicates] the statute contains a list of elements, each

one of which goes toward a separate crime.” 

government points out, the charging document alleges that Degeare

“forcibly put[] his penis inside [one of the victim’s] mouths” and “forc[ed]” the other

victim “to place his penis inside [her] mouth.” R. vol. 1, 123. Thus, the government

concludes, the charging document references only a single § 888(B) alternative “to the




                                              27
exclusion of all others,” 

: “sodomy accomplished with any

person by means of force,” § 888(B)(3).9

       We agree this is one plausible interpretation of the charging document. But it’s not

the only one. As Degeare points out, the term “force” (and its variations) don’t appear

solely in § 888(B)(3). Instead, (1) the title of § 888 itself refers to “[f]orcible sodomy”;

(2) § 888(A) states that “[a]ny person who forces another person to engage in the

detestable and abominable crime against nature, . . . upon conviction, is guilty of a felony

punishable by imprisonment in the penitentiary for a period of not more than [20] years”;

(3) § 888(B) states that “[t]he crime of forcible sodomy shall include” certain acts; and

(4) § 888(B)(3) refers to “sodomy accomplished . . . by means of force.” § 888 (emphases

added).




       9
           We reproduce the language of Count 1 and Count 2 below:




                                              28
       Thus, it’s not at all clear to us that in alleging Degeare committed “forcible oral

sodomy” against one of his victims “by forcing her to place his penis inside [her] mouth”

and against his other victim by “by forcibly putting his penis inside [her] mouth,” the

charging document necessarily and specifically invokes § 888(B)(3). R. vol. 1, 123

(emphases added). Instead, it’s possible that each charge’s first use of the term is merely

a nod to the name of the offense charged, while its second reference is—as Degeare

argues—an effort to rope in the language of § 888(A). And in that case, Degeare points

out, the language of the charging document arguably indicates (by failing to charge a

specific § 888(B) alternative) that § 888(B)’s alternatives are simply “diverse means of

satisfying [§ 888(A)’s] single [force] element.” 

; see also 

when statute’s alternatives are merely “various factual ways of

committing some component of the offense,” those “ways” constitute means, not

elements); 

(distinguishing between elements, “which . . . must be charged”

and means, “which need not be”).10

       The government also points out that the charging document for Degeare’s 1990

forcible-sodomy conviction specifically alleges only the age of the victim, rather than

using the term “force.”11 And according to the government, this demonstrates that

§ 888(B)’s alternatives are elements. Again, we agree this is one plausible interpretation.


       10
          True, the charging document uses the phrases “by forcing her” and “by
forcibly.” R. vol. 1, 123 (emphasis added). And the phrase “by . . . force” appears
only in § 888(B)(3). But this hardly seems dispositive, especially when the charging
document only generally references § 888, rather than specifically citing § 888(B)(3).
       11
          We note that the charging document alleges Degeare “require[d]” his victim
to engage in sodomy. R. vol. 1, 121.
                                             29
See 

(explaining that if charging document “referenc[es] one

alternative term to the exclusion of all others,” that indicates “the statute contains a list of

elements, each one of which goes toward a separate crime”); § 888(B)(1) (defining

forcible sodomy, in relevant part, as “sodomy committed by a person over [18] years of

age upon a person under [16] years of age”). But again, it’s not the only plausible one. As

Degeare points out, the government’s argument overlooks the fact that Degeare’s 1990

forcible-sodomy conviction is based on conduct that occurred in 1989. And at that time,

Oklahoma’s forcible-sodomy statute (1) wasn’t divided into subsections and (2) didn’t

reference the victim’s age. Instead, it only generally prohibited “forc[ing] another person

to engage in the detestable and abominable crime against nature.” § 888 (1989).

       Thus, by referencing the victim’s age—instead of expressly alleging that Degeare

“force[d]” the victim to engage in sodomy, id.—the charging document for Degeare’s

1990 forcible-sodomy conviction arguably indicates that engaging in sodomy with a

victim who was too young to consent was merely one of any number of “factual ways of

committing [the force] component of the [1989] offense.” 

; see

also 

(holding that jury instruction stating that child under 16

can’t consent to sodomy didn’t “negate[]” § 888’s force requirement).

       In any event, we need not decide which of the parties’ competing interpretations of

the charging documents is correct. We hold only that, whatever the charging documents

might have to say about the means-or-elements question in this case, they don’t say it

“plainly.” 

. And for the reasons discussed above, nothing else

the government points to “clear[ly]” indicates that § 888(B)’s alternatives are elements,

                                              30
either. 

Accordingly, in light of Bruner, we can’t be more certain than not that

§ 888(B) is divisible. And that means the district court erred in applying the modified

categorical approach; in treating Degeare’s 1994 forcible-sodomy convictions as ACCA

predicates under the elements clause; and in denying his § 2255 motion.

                                        Conclusion

       In Bruner, the OCCA held that the alternative ways in which a defendant can

violate the Oklahoma rape statutes at issue in that case were means, not 

–80. We see no reason to think the OCCA would reach a different

conclusion about the similar ways of violating Oklahoma’s forcible sodomy statute. And

the government identifies none. Accordingly, we can’t be “certain”—under any plausible

definition of that term—that Oklahoma’s forcible-sodomy statute is “necessarily”

divisible. 

(quoting 

).

       In light of this conclusion, we hold that the district court erred in relying on

the modified categorical approach to determine that forcible sodomy is a violent

felony. 

And because the government concedes that forcible sodomy isn’t

a violent felony under the pure categorical approach, we likewise hold that the

district court erred in treating Degeare’s 1994 convictions for forcible sodomy as

ACCA predicates. That leaves Degeare with only a single qualifying conviction: his

2003 conviction for possession with intent to distribute. Because that single

conviction isn’t sufficient to trigger the ACCA’s enhanced penalty, see § 924(e)(1),

Degeare’s ACCA sentence is illegal and he is entitled to relief. We therefore reverse



                                            31
the district court’s order denying Degeare’s § 2255 motion, vacate his sentence, and

remand for resentencing.




                                         32