United States v. Najee Oliver (11th Cir. June 2020)

The Federal Docket

Sentencing/Predicate violent felonies – A conviction from a state statute that contains an exhaustive list of illegal conduct, of which only one is applied to a defendant, is divisible enough to qualify as a predicate violent felony under the elements clause of the Armed Career Criminal Act.

Najee Oliver plead guilty to possessing a firearm and ammunition as a convicted felon under 18 U.S.C. §§ 922(g) and 924(a)(2). Oliver was sentenced to 180 months in prison under the Armed Career Criminal Act in part due to “his prior Georgia conviction for making terroristic threats under O.C.G.A. § 16-11-37(a).”

On appeal, Oliver argued that the district court erred by imposing the Act’s enhanced 180-month mandatory minimum because his prior conviction under Georgia’s terroristic-threats statute covered conduct outside the Act’s ambit, was indivisible, and did not qualify as a predicate violent felony under the Armed Career Criminal Act’s elements clause.

The Court disagreed, holding that Georgia’s terroristic-threats statute contained divisible elements because it listed three distinct types of threats in an exhaustive list of what qualifies as an offense under the statute. The Court also found that the record supporting Oliver’s conviction only included one type of threat and excluded the others, supporting the conclusion that the statue was divisible. Specifically, Oliver violated the section applicable when a defendant “threatens to commit any crime of violence, to release any hazardous substance…or to burn or damage property with the purpose of terrorizing another or of causing the evacuation of a building…”

The Court held that Oliver’s conviction qualified as a violent felony under the elements clause, which required the predicate felony to involve physical, violent force. The plain and ordinary language of the statute, which pertained to threats of “any crime of violence,” is “akin to the physical force required under the” Armed Career Criminal Act.

Concurring in the opinion, Judge Tallman from the 9th Circuit noted that state courts in Georgia had decided that the Georgia statute for terroristic threats was divisible and that their opinions should have been considered.

Appeal from the Southern District of Georgia

Opinion by Wilson, joined by Pryor and Tallman (by designation from 9th Cir.)

Concurring opinion in part and in judgement by Tallman.

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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