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.
