Degeare v. United States of America
ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Honorable Robin J. Cauthron on 3/2/17. (lg)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
JOSEPH R. DEGEARE,
MEMORANDUM OPINION AND ORDER
Defendant filed a pro se Motion seeking relief from a sentence pursuant to 28 U.S.C.
§ 2255 based on the Supreme Court’s recent decision in Johnson v. United States, ___ U.S.
___, 135 S.Ct. 2551 (2015). The Court appointed counsel to assist Defendant; counsel
filed a Supplement to Defendant’s Motion as well as a Reply to Plaintiff’s Response.
On December 10, 2003, Defendant was indicted on a single count of felon in
Defendant pleaded guilty to the Indictment on January 16, 2014.
preparation for sentencing, the United States Probation Office prepared a Presentence
Investigation Report. That report noted Mr. DeGeare qualified for an enhancement of his
sentence pursuant to 18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”).
Defendant’s underlying convictions were (1) forcible sodomy, Logan County Case No.
CF-1990-06; (2) two counts of forcible sodomy and one count of lewd molestation of a
minor, Oklahoma County Case No. CF-1993-7920; (3) unlawful possession of controlled
drugs with intent to distribute, Cleveland County Case No. CF-2002-879. At sentencing,
this Court determined that Defendant was subject to the ACCA and sentenced him to 180
months’ imprisonment. Defendant now seeks relief from his sentence, arguing that based
upon the Supreme Court’s decision in Johnson, application of the ACCA to him is
Under the ACCA, a person who violates 18 U.S.C. § 922(g)(1) is subject to an
enhanced sentence if he has three or more prior convictions for a “violent felony.”
§ 924(e)(1). A violent felony is defined as “any crime punishable by imprisonment for a
term exceeding one year” that satisfies one of three clauses. The first is the elements
clause: a crime that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.”
Second is the
enumerated offense clause: a crime which is a categorical match to the generic offenses
of burglary, arson, or extortion. § 924(e)(2)(B)(iii). Third is the residual clause: a
crime which involves conduct that presents a serious potential risk of physical injury to
another. § 924(e)(2)(B)(ii). In Johnson, the Supreme Court struck the residual clause,
finding it was unconstitutionally vague.
Defendant does not challenge his prior conviction for possession of controlled drugs
and Plaintiff concedes that neither Defendant’s 1990 conviction nor the 1994 conviction
for lewd molestation can be used as predicate felonies. Thus, the only prior crimes at issue
are the 1994 forcible sodomy convictions.
The Court’s review in this matter is governed by the framework described by the
Supreme Court in Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243 (2016), and
Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2283 (2013). The Court is not
to consider the particular facts underlying the conviction, rather the focus is on the elements
of the offense, those “things the prosecution must prove to sustain a conviction . . . [or] [a]t
a trial . . . what the jury must find beyond a reasonable doubt to convict the defendant.”
Mathis, 136 S.Ct. at 2248 (internal quotation marks and citation omitted). If the statutory
offense encompasses conduct broader than the generic crime, or broader than the required
violent force or physical force, “a conviction under that law cannot count as an ACCA
predicate, even if the defendant actually committed the offense in its generic form.”
Descamps, 133 S.Ct. at 2283.
In certain circumstances, the Court may employ a modified categorical approach.
This approach may be used only when the offense of conviction is “divisible,” meaning it
has multiple alternative versions of the crime. Descamps, 133 S.Ct. at 2283. If the
modified categorical approach applies, it permits the Court to review “the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant, or to some comparable judicial record of this
information.” Shepard v. United States, 544 U.S. 13, 26 (2005). Notably, a statute is not
divisible for purposes of applying the modified categorical approach if the statute lists
alternative means of violating a single element, and one of those means would not qualify
as an ACCA predicate. Mathis, 136 S.Ct. at 2254-55. This raises the issue of whether
the enumerated alternatives are “means” or “elements.” Id. While the Supreme Court
has never provided a bright line definition or rule regarding what is an “element” as
opposed to “means,” in Mathis the Supreme Court noted that making the determination
will be “easy” when the state’s highest criminal court has decided the issue; that is, has the
state’s highest criminal court determined what specific elements must be determined in
order to find the defendant guilty of the statute.
As relevant here, Defendant was convicted under 21 Okla. Stat. § 888. That statute
§ 888 Forcible Sodomy
A. Any person who forces another person to engage in the detestable and
abominable crime against nature, pursuant to Section 886 of this title, upon
conviction, is guilty of a felony punishable by imprisonment in the
penitentiary for a period of not more than twenty (20) years. Any person
convicted of a second violation of this section, where the victim of the second
offense is a person under sixteen (16) years of age, shall not be eligible for
probation, suspended or deferred sentence. Any person convicted of a third
or subsequent violation of this section, where the victim of the third or
subsequent offense is a person under sixteen (16) years of age, shall be
punished by imprisonment in the State Penitentiary for a term of life or life
without parole, in the discretion of the jury, or in case the jury fail or refuse
to fix punishment then the same shall be pronounced by the court.
B. The crime of forcible sodomy shall include:
Sodomy committed by a person over eighteen (18) years of age upon
a person under sixteen (16) years of age; or
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
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 Defendant argues that this statute is not divisible, but rather sets out three different
methods to commit the offense of forcible sodomy. According to Defendant, subpart (B)
does not provide alternative elements but rather provides examples of differing factual
means by which the statute may be violated. If Defendant is correct, the statute is not
divisible under Descamps, 133 S.Ct. at 2283; Shepard, 544 U.S. at 26. After consideration
of the statute and the Supreme Court’s reasoning in Descamps and Shepard, the Court finds
Oklahoma’s forcible sodomy statute is divisible. That is, the statute is comprised of
“multiple alternative versions of the crime” of forcible sodomy. Descamps, 133 S.Ct. at
2284-85. This decision is bolstered by the fact that the Oklahoma Court of Criminal
Appeals has, through its adoption of uniform jury instructions, established specific sets of
instructions to apply to each subparagraph of § 888(B). Defendant’s convictions under
§ 888(B)(3) required the jury to find beyond a reasonable doubt the following elements:
(1) penetration, (2) of the mouth/vagina of the defendant/victim, (3) by the mouth/penis of
the defendant/victim, and (4) which is accomplished by means of force or violence, or
threats of force or violence that are accomplished by the apparent power of execution. See
OUJI-CRIM 4-128. Different elements would have to be proven to convict Defendant of
one of the other subparagraphs of § 888(B). Therefore, the Court applies the “modified
Under that approach, the Court may examine the underlying documents to
determine under which portion of Oklahoma’s forcible sodomy law Defendant was
convicted. The documents provided by Plaintiff demonstrate Defendant was convicted of
violating § 888(B)(3), as he forced the victims to place his penis in their mouths.
Defendant asserts that even if the Court reaches this conclusion, his crimes still do not
qualify as ACCA predicates as the force necessary to violate § 888 does not require
As noted above, the elements clause of the ACCA is triggered when the Defendant
is convicted of a felony that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” § 924(e)(2)(B)(i). The Supreme Court has
defined “physical force” to mean violent force. See Curtis Johnson v. United States, 559
U.S. 133, 140 (2010) (“We think it clear that in the context of a statutory definition of
‘violent felony,’ the phrase ‘physical force’ means violent force – that is, force capable of
causing physical pain or injury to another person.”).
The Court has little difficulty
determining that forcing another person to perform fellatio is force capable of causing
physical pain or injury. Indeed, the very language of the subpart of § 888 under which
Defendant was convicted, requires the act be accomplished by “means of force or violence,
or threats of force or violence . . . .” See OUJI CRIM 4-128.
Applying the modified categorical approach, the Court finds that Defendant was
convicted of a crime that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.”
Defendant’s convictions for forcible sodomy qualify as crimes of violence under the
ACCA, and Johnson does not require vacating his earlier sentence.
Defendant also argues the Court erred in requiring him to register as a sex offender.
Defendant notes that this issue is presently pending before the United States Supreme Court
and that he mentions it here only to preserve that appeal. Defendant’s current Motion was
his second § 2255 Motion.
Therefore, he was required to obtain a certificate of
appealability from the Tenth Circuit before he could proceed. The Order granting the
certificate stated: “Accordingly, we grant Joseph R. DeGeare authorization to file a
second or successive § 2255 motion in district court to raise a claim based on Johnson v.
United States.” In re Joseph DeGeare, No. 16-6141, p. 2 (10th Cir. June 14, 2016).
Because the registration issue is not within the scope of the certificate, the Court lacks
jurisdiction to consider the argument.
Defendant’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (Dkt. No. 59) and Defendant’s Second Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (Dkt. No. 67) are DENIED.
IT IS SO ORDERED this 2nd day of March, 2017.
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