Sumrall v. United States of America

Filing 3

ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Curtis Reed Sumrall. Before the Court is Defendant-Petitioners Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Finding that relief is appropriate, the Court GRANTS the Motion, as more fully set out. Signed by Honorable David L. Russell on 4/6/17. (jw)

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.

CURTIS REED SUMRALL,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. CR-04-97-R
CIV-16-582-R

ORDER
Before the Court is Defendant-Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255. [Doc. 323]. Finding that relief is appropriate, the Court
GRANTS the Motion.
I. Background
In October 2004, a grand jury sitting in the Western District of Oklahoma returned
a nine-count superseding indictment naming Defendant-Petitioner Curtis Sumrall in six
counts. [Doc. 93]. Mr. Sumrall eventually pled guilty to possessing a firearm as a felon, in
violation of 18 U.S.C. § 922(g). [Doc. 95]. Prior to his plea, the Government informed him
that he was eligible for enhancement under the Armed Career Criminal Act (ACCA). [Doc.
16]. Under the ACCA, a person convicted of possessing a firearm as a felon faces a
minimum of fifteen years’ imprisonment if that person has three previous convictions for
“a serious drug offense” or a “violent felony.” 18 U.S.C. § 924(e). Without this sentence
enhancement, a conviction for possessing a firearm as a felon carries a maximum prison
1

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 2 of 13

term of ten years. § 924(a)(2). Finding that the Mr. Sumrall did in fact qualify for the ACCA
enhancement, the Court sentenced Mr. Sumrall to 188 months’ imprisonment on February
1, 2005. [Doc. 142]. But on appeal, and in light of the Supreme Court’s intervening decision
in Shephard v. United States, 544 U.S. 13 (2005), the Tenth Circuit remanded the case to
the district court to make adequate findings to support an ACCA-enhancement. [Doc. 207].
Prior to resentencing, the Government identified the three earlier state-law
convictions of Mr. Sumrall’s that it believed qualified him for sentence enhancement: (1)
unlawful possession of marijuana with intent to distribute,1 (2) assault and battery with a
dangerous weapon,2 and (3) witness intimidation.3 [Doc. 210]. The Court agreed with the
Government that these convictions counted as ACCA-predicate offenses and resentenced
him to his original term of 188 months’ imprisonment. [Docs. 213, 214]. On May 31, 2016,
Defendant moved to vacate his sentence under 28 U.S.C. § 2255 based on the Supreme
Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Mr. Sumrall and the
Government disagree on whether, after Johnson, Mr. Sumrall still has three prior
convictions for a serious drug offense or a violent felony that qualify him for the ACCA’s
15-year-minimum prison term.
Because Mr. Sumrall has the better argument, the Court finds that relief is
appropriate. The Court will grant relief and resentence him accordingly.

1
Okla. Stat. tit. 63, § 2 – 401(B)(2).
2
Okla. Stat. tit. 21, § 645.
3
Okla. Stat. tit. 21, § 455.  

2

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 3 of 13

II. Standard of Review
“Under § 2255, federal courts have authority to vacate sentences ‘imposed in
violation of the Constitution or laws of the United States,’ ‘in excess of the maximum
authorized by law,’ ‘that the [sentencing] court was without jurisdiction to impose,’ ‘or ...
otherwise subject to collateral attack.’” United States v. Blackwell, 127 F.3d 947, 953 (10th
Cir. 1997) (quoting 28 U.S.C. § 2255). To be sure, a remedy under § 2255 “does not
encompass all claimed errors in conviction and sentencing.” United States v. Addonizio,
442 U.S. 178, 184, 99 S.Ct. at 2240. Rather, “an error of law does not provide a basis for
collateral attack unless the claimed error constituted ‘a fundamental defect which
inherently results in a complete miscarriage of justice.’” Id. at 185 (citing Hill v. United
States, 368 U.S. 424, 428, 82 S.Ct. 468, 471 (1962)).
III. Analysis
A. Sentence Enhancement under the Armed Career Criminal Act
“Absent an enhancement under the ACCA, ‘the felon-in-possession statute sets out
a 10-year maximum penalty.’” United States v. Titties, __ F.3d __, 2017 WL 1102867, at
*3 (10th Cir. Mar. 24, 2017) (citing Mathis v. United States, 136 S.Ct. 2243, 2248 (2016));
18 U.S.C. § 924(a)(2). If a defendant, however, is convicted of possessing a firearm as a
felon under 18 U.S.C. § 922(g) and the defendant has three prior convictions for a “violent
felony” or a “serious drug offense,” then the ACCA prescribes a 15-year mandatory
minimum sentence. Id.; § 924(e)(1). Further convictions by guilty plea—such as in Mr.
Sumrall’s case—qualify as ACCA offenses. See Shephard, 544 U.S. at 19 (2005). To apply
the ACCA enhancement, the government must show that a past conviction qualifies as an
3

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 4 of 13

ACCA-predicate offense. See United States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir.
2012).
Congress, however, did not leave the question of whether a prior conviction
qualifies as a “violent felony” or a “serious drug offense” to guesswork. Rather, the ACCA
defines both terms. A “serious drug offense,” for example, includes state law crimes for
attempting to distribute controlled substances which carry maximum prison terms of at
least ten years. 18 U.S.C. § 923(e)(2)(A)(ii). Identifying a “violent felony,” on the other
hand, is admittedly more complicated. Before Johnson, the ACCA defined the term as
“any crime punishable by imprisonment for a term exceeding one year” that meets one of
three requirements: (1) “has as an element the use, attempted use, or threatened use of
physical force against the person of another”—referred to as the elements clause; (2) is
“burglary, arson, or extortion, or involves the use of explosives”—referred to as the
enumerated-offense clause; or (3) “otherwise involves conduct that presents a serious
potential risk of physical injury to another”—referred to as the residual clause. §
924(e)(2)(B)(i), (ii). Johnson affected the validity of only this last clause, with the Supreme
Court deeming it unconstitutionally vague since it “both denie[d] fair notice to defendants
and invite[d] arbitrary enforcement by judges.” 135 S.Ct. at 2557. Now, in the wake of
Johnson, a prior conviction qualifies as a violent felony under the ACCA only if it falls
within the enumerated-felony clause or the elements clause.
Now that the residual clause may no longer serve as a basis for an ACCA-predicate
offense, Mr. Sumrall’s requested relief hinges on whether he has his three prior convictions
that qualify under the ACCA’s definition of serious drug offense or its two remaining valid
4

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 5 of 13

definitions of violent felony. Two of his prior convictions are undoubtedly ACCApredicate offenses. First, his conviction for possession of marijuana with intent to distribute
under Okla. tit. 63, § 2-401(B)(2) qualifies as serious drug offense because it involves the
intent to distribute a controlled substance and authorizes a term of imprisonment of life.
Second, his conviction for assault and battery with a dangerous weapon qualifies because
the Tenth Circuit has said as much. See United States v. Mitchell, 843 F.3d 1215, 1224–25
(10th Cir. 2016) (holding that conviction for assault and battery with a dangerous weapon
categorically qualified as a crime of violence under the elements clause of the United States
Sentencing Guidelines).4
Mr. Sumrall thus has at least two ACCA-predicate offenses. The issue is whether
his conviction for witness intimidation qualifies as a third. It certainly is not a serious drug
offense. And it clearly does not qualify as a violent felony under the enumerated-offense
clause because it is not “burglary, arson, or extortion, [and does not] involve[] the use of
explosives.” 18 U.S.C. § 924(e)(2)(B)(ii). Yet it still may fall within the elements clause if
it “has as an element the use, attempted use, or threatened use of physical force against the
person of another.” § 924(e)(2)(B)(i). Without one of these elements, though, his
conviction does not qualify as a violent felony, meaning he lacks the three prior convictions

4
Though Mitchell interpreted the phrase “crime of violence” as used in the United States Sentencing
Guidelines, the Guidelines define that phrase in the same way that the ACCA defines “violent felony,”
meaning Mitchell is thus still instructive. See, e.g., United States v. Ramon Silva, 608 F.3d 663, 671 (10th
Cir. 2010) (“Given the similarity in language between the ACCA and USSG, we have occasionally looked
to precedent under one provision for guidance under another in determining whether a conviction qualifies
as a violent felony.”) (internal quotes omitted).

5

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 6 of 13

required for sentence enhancement under the ACCA. If that is the case, then his 188-month
sentence far exceeds that imposed for non-ACCA offenses.
B. The Categorical and Modified-Categorical Approaches
Pursuant to the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575,
110 S.Ct. 2143 (1990), courts use an elements-based approach in deciding whether a
conviction qualifies as an ACCA-predicate offense. Most of the time, this task calls for the
“formal categorical approach,” which looks to the elements of the statutes of conviction
“and not to the particular facts underlying those convictions.” Id. at 600. Consequently,
“[a] prior conviction is an ACCA predicate only if the elements of the prior crime
necessarily satisfy the ACCA definition.” United States v. Tittles, __ F.3d ___, 2017 WL
1102867, at *5 (10th Cir. Mar. 24, 2017); also see Descamps v. United States, 133 S.Ct.
2276, 2281 (2013) (“Congress meant ACCA to function as an on-off switch, directing that
a prior crime would qualify as a predicate offense in all cases or in none.”).
“[I]f the statute sweeps more broadly” than the ACCA definition—that is, if some
conduct would justify the state-law conviction but would not satisfy the ACCA
definition—then any “conviction under that law cannot count as an ACCA predicate.” Id.
at 2283. In other words, it does not matter if the facts underlying a defendant’s earlier
conviction reveal that the defendant’s conduct was actually violent; if the statute
contemplates criminalizing conduct that would not meet the ACCA’s definition of violent
felony, then that conviction cannot support the ACCA-sentence enhancement. Because the
focus is on elements, not facts, any “mismatch of elements saves the defendant from an
ACCA sentence.” Mathis, 136 S.Ct. at 2251.
6

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 7 of 13

In rare cases, however, this formal categorical approach will not suffice. Sometimes
a statute of conviction will be “divisible”—that is, it “sets out one or more elements of the
offense in the alternative.” Descamps, 133 S.Ct. at 2281. “For these statutes, ‘[n]o one
could know just from looking at the statute, which version of the offense [the defendant]
was convicted of,’ and there can be no categorical comparison of elements when the statue
is unclear about which of the alternative elements formed the basis of the defendant’s
conviction.” Tittles, 2017 WL 1102867, at *5 (quoting Descamps, 133 S.Ct. at 2284). This
approach, known as the modified-categorical approach, “serves—and serves solely—as a
tool to identify the elements of the crime of conviction when a statute’s disjunctive
phrasing renders one (or more) of them opaque.” Id. (citing Mathis, 136 S.Ct. at 2253). To
that end, a court may then “consult a limited class of documents [from the record] to
determine which alternative formed the basis of the defendant's prior conviction.” Id. By
invoking these documents, which include the charging paper, jury instructions, terms of a
plea agreement, or transcript of colloquy between a judge and defendant, “[t]he court can
then do what the categorical approach demands: compare the elements of the crime of
conviction (including the alternative element used in the case) with the elements of the
generic crime.” Descamps, 133 S.Ct. at 2281, 2284.
A court’s first task, then, is to decide whether a statute is divisible and thus whether
to employ the categorical or modified-categorical approach. “A statute is considered
divisible only if it creates multiple offenses by setting forth alternative elements.” United
States v. Edwards, 836 F.3d 831, 833 (7th Cir. 2016); also see United States v. Gardner,
823 F.3d 793, 802 (4th Cir. 2016) (“A crime is not divisible simply because it may be
7

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 8 of 13

accomplished through alternative means, but only when alternative elements create distinct
crimes.”) The key distinction, as the Supreme Court clarified in Mathis, is between
elements and means. “Elements are the constituent parts of a crime’s legal definition—the
things the prosecution must prove to sustain a conviction.” Mathis, 136 S.Ct. at 2248
(quotations omitted). “[T]hey are what the defendant necessarily admits when he pleads
guilty.” Id. By contrast, means are “various factual ways of committing some component
of the offense.” Id. at 2249. “If the listed items are alternative means of satisfying an
element, then the statue is not divisible and the categorical approach must be applied . . . If
the alternatives are elements, then the modified categorical approach should be applied.”
Titties, 2017 WL 1102867, at *6.
Aside from clarifying this elements-means distinction, Mathis also offered “several
tools for deciding whether an alternatively phrased criminal law lists elements or means.”
Id. One of those ways, Mathis explained, was to look to state-law decisions. The Tenth
Circuit has also approved examining a state’s uniform jury instructions. See, e.g., id. at *9
(consulting Oklahoma’s Uniform Jury Instructions for the crime of feloniously pointing a
firearm to determine if the crime qualified as a violent felony).
C. Mr. Sumrall’s Prior Conviction for Witness Intimidation
The Court’s work, then, begins with Oklahoma’s statute for witness intimidation.
When Mr. Sumrall pled guilty to witness intimidation in violation of Okla. Stat. tit. 21, §
645, the statute was written as follows:
A. Every person who willfully prevents any person from
giving testimony who has been duly summoned or subpoenaed
or endorsed on the criminal information or juvenile petition as
8

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 9 of 13

a witness, or who makes a report of abuse or neglect . . . or who
is a witness to any reported crime, or threatens or procures
physical or mental harm through force or fear with the intent to
prevent any witness from appearing in court to give his
testimony, or to alter his testimony is, upon conviction, guilty
of a felony punishable by not less than one (1) year nor more than
ten (10) years in the State Penitentiary.
B. Every person who threatens physical harm through force or fear
or causes or procures physical harm to be done to any person
or harasses any person or causes a person to be harassed
because of testimony given by such person in any civil or
criminal trial or proceeding, or who makes a report of abuse or
neglect . . . is, upon conviction, guilty of a felony punishable by
not less than one (1) year nor more than ten (10) years in the
State Penitentiary.
As the Oklahoma Court of Criminal Appeals has explained, the statute clearly lays
out two separate offenses: intimidating a witness (or the attempt to) before the person
testifies—codified in subsection A—and intimidating a witness (or the attempt to) after the
person testifies—codified in subsection B. See Pinkley v. State, 49 P.3d 756, 759–60 (Okla.
Crim. 2002). Further, the Court can be sure from Oklahoma’s Uniform Jury Instructions
that the statute sets out four potential set of elements under which a Defendant may face
charges. (For convenience, the Court will label them as Sets A through D).
Set A:
First, willfully;
Second, prevented/ (attempted to prevent);
Third, a person who (has been duly summoned/subpoenaed/ (endorsed on a
(criminal information)/(juvenile petition))/(has made a report of abuse/neglect
required by law)/(is a witness to a reported crime);
9

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 10 of 13

Fourth, from testifying/(producing a record/ document/object).
Set B:
First, willfully;
Second, threatened/procured;
Third, physical/mental harm;
Fourth, through force/fear;
Fifth, to a person;
Sixth, [with the intent to prevent the person from appearing in court to
testify/produce a record/document/object]
OR
Sixth, [with the intent to make the person alter that person's testimony].
Set C:
First, willfully;
Second, (threatened physical harm through force/fear)/(caused/procured physical
harm to be done) to a person;
Third, because of (testimony given by the person in a civil/criminal
trial/proceeding)/(a report of abuse/neglect required by law).
Set D:
First, willfully;
Second, (harassed a person)/(caused a person to be harassed);

10

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 11 of 13

Third, because of (testimony given by the person in a civil/criminal
trial/proceeding)/(a report of abuse/neglect required by law).
Oklahoma Uniform Jury Instructions–Criminal, § 3-39. Oklahoma’s statute for witness
intimidation therefore “list[s] elements in the alterative, and thereby defines multiple
crimes.” Mathis, 136 S.Ct. at 2249. And because the statue “sets out one or more elements
of the offense in the alternative,” it is divisible. Descamps, 133 S.Ct. at 2281. As a result,
the Court “requires a way of figuring out which of the alternative elements listed . . . was
integral to the defendant’s conviction (that is, which was necessarily found or admitted).”
Mathis, 136 S.Ct. at 2250. That statute thus demand the modified-categorical approach,
which permits the court to glance at Mr. Sumrall’s charging documents.
Those documents reveal that Mr. Sumrall pled guilty to the elements in Set B. See
Doc. 210–6 (Information) (charging Mr. Sumrall with “willfully and unlawfully
threaten[ing] physical harm through force or fear . . . with the intent to prevent the witness
from testifying by threating to kill [the witness].” The question is therefore this: does Set
B encompass crimes that do not “ha[ve] as an element the use, attempted use, or threatened
use of physical force against the person of another” under 18 U.S.C. § 924(e)(2)(B)(i)?
Here, it is clear that it does. A conviction under the statute does not require that the
defendant have used, attempted to use, or threatened to use force. Rather, a defendant may
violate the statute by putting another in a state of fear.
So to be clear, there would surely be some instances where the threatened use of
force could be of the kind referenced in the elements clause, i.e., “violent force—that is,
force capable of causing physical pain or injury to another person.” Curtis Johnson v.
11

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 12 of 13

United States, 559 U.S. 133, 140 (2010). Imagine a defendant who threatens to kill a
designated witness should they testify. That would count as the threatened use of violent,
physical force. On the other hand, a person could violate the statute with non-violent
conduct in many ways. A defendant attempting to dissuade a designated witness from
testifying could threaten to blast a car horn outside the witness’s home at odd hours of the
night. He could threaten to litter the witness’s yard with offensive signage or even to
ostracize a person from a social club or group of friends. He might even stoop to threatening
to expose a witness’s extramarital affair. In fairness, all of this threatened conduct would
be unpleasant. Some would be annoying. Some nefarious. Some outrageous. None,
however, would have “as an element the use, attempted use, or threatened use of physical
force against the person of another” to qualify it as a violent felony under § 924(e)(2)(B)(i).
So though not a violent felony under the ACCA, the conduct would still be grounds for
conviction under Oklahoma’s witness-intimidation statute because all involve a defendant
(1) willfully (2) threatening (3) a person with (4) mental harm (5) through fear with (6) the
intent to prevent the person from testifying.
This mismatch of elements between Oklahoma’s witness-intimidation statute and
the elements clause compels the Court to find that Mr. Sumrall lacks three prior convictions
that qualify as ACCA-predicate offenses. 18 U.S.C. § 924(a)(2). Because Mr. Sumrall’s
original sentence of 188 months “was in excess of the maximum authorized by law,” 28
U.S.C. § 2255 entitles him to relief. Where a § 2255 claim has merit, district courts have
the discretion to choose between discharging the petitioner, resentencing the petitioner,
correcting the petitioner’s sentence, or granting petitioner a new trial. 28 U.S.C. § 2255.
12

Case 5:04-cr-00097-R Document 341 Filed 04/06/17 Page 13 of 13

Because Defendant has already served more than ten years, the court finds that correction
of Petitioner’s sentence is the most appropriate form of relief. As a result, his motion will
be GRANTED and the Judgment and Commitment dated December 5, 2015 [Doc. No.
214] is VACATED.
An amended judgment and commitment shall be entered forthwith sentencing
Defendant to 120 months imprisonment. The Bureau of Prisons is hereby directed to
immediately release Defendant Curtis Reed Summrall from custody.
IT IS SO ORDERED this 6th day of April 2017.

13