Eleventh Circuit Court of Appeals - Published Opinions

Monday, January 06, 2020

Oliver: Georgia's Terrorist Threats Offense Is Not a Violent Felony Under the ACCA

In United States v. Oliver, No. 17-15565 (Jan. 6, 2020) (Wilson, Jill Pryor, Tallman (9th)), the Court held that a Georgia offense for making terroristic threats is not a violent felony under the ACCA's elements clause.

The Court concluded that the Georgia statute was indivisible under Mathis because the statute, state case law, pattern jury instruction, and record of conviction did not make clear whether the alternatives were means or elements.  Therefore, the Court resolved the inquiry in favor of indivisibility.  And the Court concluded that the statute was categorically overbroad because it could be committed by threatening or burning property, which did not have as an element the threatened use of force against a person.

Judge Tallman dissented.  He agreed that threatening to burn a building did not satisfy the elements clause, but he opined that the statute was divisible based on its structure, state court decisions reflecting charging practices, and the indictment in the defendant's case (which was not in the record but was quoted by the government and PSI).  And he opined that threatening to commit a crime of violence with the purpose of terrorizing another, the section under which the defendant was charged, satisfied the elements clause because it necessarily required a threat against a person.