Denver, CO - Criminal defense lawyer represented defendant with using and carrying a firearm in relation to a crime of transmitting threats in interstate commerce charge.
Title 18, Section 924(c)(1)(A) of the United States Code proscribes “us[ing] or
carr[ying] a firearm” “during and in relation to any crime of violence,” or “in furtherance
of any such crime, possess[ing] a firearm.” As noted, a “crime of violence” is a felony
that “has as an element the use, attempted use, or threatened use of physical force against
the person or property of another.” 18 U.S.C. § 924(c)(3)(A).5
“[T]he ‘force’ component in ‘physical force’ refers to ‘violent force—that is, force
capable of causing physical pain or injury to another person.’” United States v. Muskett,
970 F.3d 1233, 1239 (10th Cir. 2020) (quoting Johnson v. United States, 559 U.S. 133,
140 (2010)), cert. denied, 141 S. Ct. 1710 (2021). This requires “only potentiality,” not
“any particular degree of likelihood or probability that the force used will cause physical
4 In reaching this holding, we exercise our discretion to “affirm on any ground
adequately supported by the record.” United States v. Chavez, 976 F.3d 1178, 1203–04
n.17 (10th Cir. 2020) (quotation marks omitted). Although the district court decided this
case on a different basis, the issue of divisibility was fully briefed before the district court
as well as this court and no factual development is necessary. Accordingly, this case is an
appropriate one for affirmance on alternate grounds. Cf. id. (declining to affirm on an
alternate ground because the parties had not “fully briefed and argued the alternate
ground,” nor did they have “a fair opportunity to develop the factual record” (internal
quotation marks omitted)).
5 The Supreme Court has held 18 U.S.C. § 924(c)(3)(B), which included as crimes
of violence those that have “a substantial risk that physical force against the person or
property of another may be used,” is unconstitutionally vague. United States v. Davis,
139 S. Ct. 2319, 2323–24, 2336 (2019). Accordingly, § 924(c)(3)(A) is the only
provision at issue.
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pain or injury.” Id. (quoting Stokeling v. United States, 139 S. Ct. 544, 554 (2019)). And
“physical” means “force exerted by and through concrete bodies—distinguishing
physical force from, for example, intellectual force or emotional force.” Id. (quoting
Johnson, 559 U.S. at 138).
The Categorical Approach
Under the categorical approach, courts “look to the elements of the statute of
conviction ‘and not to the particular facts underlying [that conviction].’” United States v.
O’Connor, 874 F.3d 1147, 1151 (10th Cir. 2017) (second alteration in original) (quoting
Taylor v. United States, 495 U.S. 575, 600 (1990)). Put another way, the court must
examine “whether the elements of the offense are of the type that would justify its
inclusion . . . without inquiring into the specific conduct of this particular offender.”
United States v. Melgar-Cabrera, 892 F.3d 1053, 1061 (10th Cir. 2018) (quotation marks
omitted). But for a crime to fall outside the definition, “there must be ‘a realistic
probability, not a theoretical possibility,’ that the statute at issue could be applied to
conduct that does not constitute a crime of violence.” Id. (quoting Gonzales v. DuenasAlvarez, 549 U.S. 183, 193 (2007)).
Laws that are alternatively phrased—that is, laws that utilize two or more terms in
the disjunctive—present a more complicated inquiry. “The first task for a sentencing
court faced with an alternatively phrased statute is . . . to determine whether its listed
items are elements or means.” Mathis v. United States, 136 S. Ct. 2243, 2256 (2016).
“Elements” are the constituent parts of the definition of a crime, the things the
prosecution must prove beyond a reasonable doubt to sustain a conviction. Id. at 2248.
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By contrast, “means” are different ways of committing a single element. Id. at 2249. A
jury need not unanimously agree upon which factual “means” a defendant used to
commit an element of the offense; it is enough that each juror believes the defendant
committed all elements via one or more means. Id. If the alternative phrasing sets forth
means, the statute is indivisible and the court must apply the categorical approach as
normal. Id. at 2256. But if a statute sets forth alternative elements, the statute is divisible
and the court must “review the record materials to discover which of the enumerated
alternatives played a part in the defendant’s . . . conviction, and then compare that
element (along with all others)” to the relevant standard (here, § 924(c)(3)(A)’s definition
of crime of violence). Id. This is called the “modified categorical approach.” Id. at 2249.
Title 18, Section 875
The pertinent provision here, 18 U.S.C. § 875(c), proscribes “transmit[ting] in
interstate or foreign commerce any communication containing any threat to kidnap any
person or any threat to injure the person of another.” “In addition to the elements
specified in the statute, . . . the government must prove the defendant transmitted the
communication for the purpose of issuing a threat or with knowledge the communication
would be viewed as a threat.” United States v. Stevens, 881 F.3d 1249, 1253 (10th Cir.
2018) (citing Elonis v. United States, 575 U.S. 723, 740 (2015)).
“Kidnap” in § 875(c) refers to the definition of “kidnap” Congress set forth in
18 U.S.C. § 1201, not the common-law crime. United States v. Mobley, 971 F.3d 1187,
1202–03 (10th Cir. 2020). Section 1201 employs a “verb string” to define kidnap. Id.
A person kidnaps when he “unlawfully seizes, confines, inveigles, decoys, kidnaps,
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abducts, or carries away and holds for ransom or reward or otherwise” another person.
18 U.S.C. § 1201(a). This verb string “criminalize[s] much more than common-law
‘kidnap,’” which is “tak[ing] and carry[ing] away any person by force and against his
will.” Mobley, 971 F.3d at 1199–1200 (internal quotation marks omitted). In particular, it
includes kidnapping by inveiglement—by deception or flattery. See Inveigle, Black’s Law
Dictionary (11th ed. 2019) (defining “inveigle” as “to lure or entice through deceit or
insincerity; to persuade (someone) dishonestly”).
The Supreme Court in Mathis “identified several tools for deciding whether an
alternatively phrased criminal law lists elements or means.” United States v. Titties,
852 F.3d 1257, 1267 (10th Cir. 2017); see Mathis, 136 S. Ct. at 2256–57. These include
(1) court decisions; (2) the statute’s text; and (3) if those tools fail, looking to record
documents for an indication (the “peek” method). Titties, 852 F.3d at 1267–68; Mathis,
136 S. Ct. at 2256–57.
6 But if “a clear answer to the means-or-elements question remains
elusive,” the court “must eschew the modified categorical approach” and assume the
alternatives are means rather than elements. United States v. Degeare, 884 F.3d 1241,
1248 (10th Cir. 2018) (citing Mathis, 136 S. Ct. at 2257, discussing the need for certainty
6 We note these tools were identified for use “[i]n deciding whether a state
statute’s alternatives are elements or means.” United States v. Degeare, 884 F.3d 1241,
1247 (10th Cir. 2018) (emphasis added). This case requires us to consider whether a
federal statute is divisible. Both parties ask this court to apply the Mathis framework,
however. Accordingly, we do so.
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that a statute’s alternatives are elements rather than means). This court has not “yet
resolved what quantum of certainty” is necessary, but whatever it is, the court must “be at
least more certain than not that a statute’s alternatives constitute elements before we will
treat that statute as divisible.” Id. at 1248 n.1 (emphasis in original).
We now consider each of the tools identified by the Court to determine whether
§ 875(c) sets forth means or elements.
Our research has identified only two cases binding upon this panel that have
touched on the relevant issue. In Elonis, the Supreme Court granted certiorari to
determine whether § 875(c) “requires that the defendant be aware of the threatening
nature of the communication, and—if not—whether the First Amendment requires such a
showing.” 575 U.S. at 726. As a preface to its discussion, the Supreme Court paraphrased
§ 875(c): “This statute requires that a communication be transmitted and that the
communication contain a threat. It does not specify that the defendant must have any
mental state with respect to these elements.” Id. at 732. The Court summarized the statute
to illustrate it “does not indicate whether the defendant must intend that his
communication contain a threat.” Id. In doing so, the Supreme Court did not express a
view as to whether § 875(c) contains means or elements when it provides two alternatives
7 At oral argument, counsel for Mr. Mjoness suggested our decision in United
States v. Cantu, 964 F.3d 924, 929 (10th Cir. 2020), resolved this question. We do not
agree. In Cantu, we explained we will not apply the modified categorical approach if “we
cannot ultimately say with certainty that the statute is divisible.” Id. But we cited
Degeare for this proposition, and we did not purport to resolve the level of certainty
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for violating the statute: threat to injure and threat to kidnap. Accordingly, Elonis is not
In Stevens, the defendant challenged his § 875(c) conviction, arguing his interstate
messages did not constitute true threats. 881 F.3d at 1251. As part of the legal
background, we added numbers to § 875(c) to indicate its elements: “Whoever
 transmits in interstate or foreign commerce  any communication containing  any
threat to kidnap any person or any threat to injure the person of another . . . .” Stevens,
881 F.3d at 1252–53 (alterations in original) (quoting 18 U.S.C. § 875(c)). We then stated
Elonis “recognized a fourth element,” that “the defendant transmitted the communication
for the purpose of issuing a threat or with knowledge the communication would be
viewed as a threat.” Id. at 1253. But like Elonis, Stevens was not concerned with whether
a “threat to kidnap” and a “threat to injure” in § 875(c) constitute elements or means.
Rather, we quoted § 875(c) as part of the legal background, but focused our analysis on
whether the messages constituted true threats. See id. at 1253–56.8 Thus, our numbering
of the elements is dicta.
The government directs our attention to United States v. Chapman, 866 F.3d 129
(3d Cir. 2017). There, the Third Circuit considered 18 U.S.C. § 876(c). That statute is
identical in all material respects to § 875(c), except that it forbids sending threats through
the mail rather than across state lines. Compare 18 U.S.C. § 875(c), with id. at § 876(c).
8 Indeed, there was no need to discuss the threat-to-kidnap alternative because the
threats at issue were all threats to injure, specifically threats to kill. See United States v.
Stevens, 881 F.3d 1249, 1256–58 (10th Cir. 2018) (listing the ten threatening messages
underlying the charges).
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The Third Circuit held § 876(c) was divisible, concluding it “‘comprises multiple,
alternative versions of the crime.’” Chapman, 866 F.3d at 134 (quoting Descamps,
570 U.S. at 262). The court identified “[t]hose versions [as]: (1) knowingly mailing any
communication containing any threat to kidnap any person; and (2) knowingly mailing
any communication containing any threat to injure the person of the addressee or of
Chapman, however, lacks any persuasive analysis of the divisibility question. The
Chapman court made a passing reference to an example presented by the Supreme Court
in Mathis, stating: “An example of an indivisible statute: a statute that criminalizes ‘the
entry of a premises with the intent to steal.’ By contrast, that statute would be divisible if
‘entry’ is swapped with ‘lawful entry, or in the alternative, unlawful entry.’” Id. at 134
n.5. Chapman was referring to an example Mathis gave of a divisible statute. The Mathis
Court stated: “Suppose, for example, that the California law noted above had prohibited
‘the lawful entry or the unlawful entry’ of a premises with intent to steal, so as to create
two different offenses, one more serious than the other.” Mathis, 136 S. Ct. at 2249.
Chapman, however, omitted an essential feature of the Supreme Court’s example, namely
that the hypothetical statute “create[d] two different offenses.” Compare id., with
Chapman, 866 F.3d at 134 n.5 (not including this language).
A close reading of Mathis demonstrates the problem with this omission. In Mathis,
the Supreme Court explained the categorical approach by looking to the statute at issue in
its prior decision, Taylor v. United States. Mathis, 136 S. Ct. at 2248–49. Taylor, the case
in which the Court first explained the categorical approach, considered a statute that
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“criminalized entering a location (even if lawfully) with the intent to steal” and so swept
more broadly than generic burglary, which required the entry to be unlawful. Id. at 2248–
49, 2251. In discussing the modified categorical approach, the Court in Mathis stated:
“Suppose, for example, that the California law [at issue in Taylor] had prohibited ‘the
lawful entry or the unlawful entry’ of a premises with intent to steal, so as to create two
different offenses, one more serious than the other.” Id. (emphasis added). The Court then
explained how the modified categorical approach could be used to identify which offense
was the relevant comparator. Id.
The Mathis Court next addressed “a different kind of alternatively phrased law:
not one that lists multiple elements disjunctively, but instead one that enumerates various
factual means of committing a single element.” Id. Returning to the example of burglary,
it explained, “a statute might . . . itemize the various places that crime could occur as
disjunctive factual scenarios rather than separate elements, so that a jury need not make
any specific findings (or a defendant admissions) on that score.” Id.
In context, the words “to create two different offenses” are crucial. Recall that the
essential question is “elements or means?” Id. at 2256. To say a statute creates two
different offenses is to say that that it includes alternative elements. The Supreme Court
in Mathis used an example of a divisible statute—one with alternative elements—to
illustrate application of the modified categorical approach.
Here, the statute itself does not designate the alternatives as two different offenses
and they are not punished differently. Without the assumption in Mathis that the statute
creates two offenses, all that can be definitively said is that a statute criminalizing “the
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lawful entry or the unlawful entry” is alternatively phrased. To be sure, if a legislature
makes one a more serious offense—that is, applies a harsher punishment for conviction
of one branch—the statute is necessarily divisible. Id. (“If statutory alternatives carry
different punishments, then . . . they must be elements.”). But if the statute instead
indicates that unlawful entry or lawful entry can satisfy the element, those alternatives
would be means. See id. at 2251 (“The itemized construction gives a sentencing court no
special warrant to explore the facts of an offense, rather than to determine the crime’s
elements and compare them with the generic definition.”).
That is where the reasoning in Chapman stumbles. The Third Circuit tells us that
§ 876(c) is divisible without explanation. 886 F.3d at 134. At the end of the sentence
asserting this, it places a footnote that repeats the Supreme Court’s example from Mathis.
But unlike the assumption of divisibility embedded in the Mathis example, nothing in
§ 876(c) indicates the alternatives there “create two different offenses, one more serious
than the other.” Thus, Chapman provides no persuasive reasoning on whether § 876(c) is
divisible, and it does not inform our present inquiry.
The government also cites two district court cases analyzing divisibility in the
context of § 876(c), Sotelo v. United States, No. 3:16-CV-375 RLM, 2016 WL 6036977
(N.D. Ind. Oct. 14, 2016), aff’d on other grounds, 922 F.3d 848 (7th Cir. 2019), and
Tomkins v. United States, No. 16-CV-7073, 2018 WL 1911805 (N.D. Ill. Apr. 23, 2018).
In Sotelo, the court reasoned that nothing in the statutory text suggested “threat to
kidnap” or “threat to injure” were “example[s],” which in turn suggested they were
elements rather than means. 2016 WL 6036977, at *3. It is true that if a statute lists
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examples, those alternatives must be means. But the inverse it not necessarily true. That
is, the fact that “threat to kidnap” and “threat to injure” are not listed as examples in the
statute does not necessarily make them elements. See Degeare, 884 F.3d at 1253
(explaining that statutory text of an Oklahoma statute did not resolve the means-orelements question where the statute was not drafted to offer illustrative examples). A
statute could provide a finite list of the ways an element can be satisfied, thereby creating
a specific list of means, rather than an open-ended list of examples. In such a case the
alternatives are means, rather than elements, notwithstanding that they are not listed as
examples. See Mathis, 136 S. Ct. at 2250 (holding a statute criminalizing entry into “any
building, structure, [or] land, water, or air vehicle” listed alternative means rather than
alternative elements (alteration and emphasis in original) (quoting Iowa Code § 702.12
(2013))). Thus, Sotelo does not provide reasoning that supports an interpretation of the
alternatives in § 875(c) as either means or elements.
In Tomkins, the court characterized United States v. Lynn, 851 F.3d 786 (7th Cir.
2017), as stating where there is “more than one way of committing” an offense, the
statute states an element. 2018 WL 1911805, at *7 (quoting Lynn, 851 F.3d at 797). This
misreads Lynn, which relied upon a state court decision holding that the alternatively
phrased state statute provided separate elements. 851 F.3d at 797 (citing People v.
Nichols, 979 N.E.2d 1002, 1013–14 (Ill. 2012)). The Tompkins court mistook Lynn’s
definition of alternative phrasing for a definition of divisibility. The better reading of
Lynn is that when there is “more than one way of committing” an offense, the statute is
alternatively phrased but not necessarily divisible. Id. This comports with Mathis, where
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there was more than one way of committing burglary—one could break into either a
structure or a vehicle—but the Court held the alternatives were means rather than
elements. 136 S. Ct. at 2256.
Finally, the government notes that prior to Mathis, numerous circuits held § 876(c)
is a crime of violence. But nothing about these pre-Mathis decisions sheds light on
whether those circuits would agree § 876(c) is divisible under the post-Mathis categorical
approach. Accordingly, we do not consider pre-Mathis precedent persuasive.
In sum, our inquiry into existing caselaw is inconclusive.
b. Statutory Language
“Mathis lists three ways in which a ‘statute on its face may resolve’ the means-orelements question.” Degeare, 884 F.3d at 1253 (quoting Mathis, 136 S. Ct. at 2256).
These are: (1) whether the alternatives carry different punishments (making them
elements); (2) whether the alternatives are illustrative examples (making them means);
and (3) whether the statute identifies “which things must be charged (and so are
elements) and which need not be (and so are means).” Id. (quoting Mathis, 136 S. Ct.
at 2256). None of these considerations answers the question here.
The relevant statutory text proscribes “transmit[ting] in interstate or foreign
commerce any communication containing any threat to kidnap any person or any threat to
injure the person of another.” 18 U.S.C. § 875(c). A person who does so “shall be fined
under this title or imprisoned not more than five years, or both.” Id. Because the
alternatives do not carry separate penalties, they are not necessarily elements. But the
single penalty does not dictate they are means. See Degeare, 884 F.3d at 1253. Likewise,
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the statute appears to list two specific ways to violate it, rather than simply providing
illustrative examples. If they were examples, we could easily conclude the statute
provides means. But where they are finite alternatives, the question remains open as to
whether they are means or elements. See id. Finally, nothing in the statute identifies
“which things must be charged (and so are elements) and which need not be (and so are
means).” Mathis, 136 S. Ct. at 2256.
To the extent the “statute-on-its-face” analysis extends past these considerations,
the text remains inconclusive.
9 The government argues the repetition of the phrase “any
threat,” used prior to both the phrases “to injure” and “to kidnap” suggests the
alternatives are elements. We agree the phrasing of the statute allows a weak inference
that a threat to injure and a threat to kidnap constitute different elements. But, as Mr.
Mjoness notes, “such repetition simply enhances readability where threats to kidnap are
directed to ‘any person’ and those to injure are directed to ‘the person of another.’” Reply
Br. at 2. Under these circumstances, the repetition of “any threat” does not resolve
whether the alternatives are means or elements.
The government also contends that because the threat-to-kidnap alternative
incorporates the legal definition of “kidnapping,” and because a jury would need to
conclude the threatened outcome met this legal definition, the threat-to-kidnap alternative
is properly construed as an element, rather than a means. That a term has a precise legal
9 In Degeare, we rejected an argument that the fact that alternatives appeared in
separate subsections indicated they were elements. 884 F.3d at 1253–54. In doing so, we
noted the argument went “beyond the statutory characteristics that Mathis treats as
relevant.” Id. at 1253.
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definition, however, does not necessarily suggest it is an element rather than simply a
means by which an element can be satisfied. It will always be the case that terms in a
statute—set out alternatively or otherwise—are subject to legal interpretation and debate.
For example, the Iowa statute at issue in Mathis defined burglary to include entry into
structures, appurtenances thereto, or vehicles. Iowa Code §§ 702.12, 713.1 (2013). These
terms—structures, appurtenances, and vehicles—have been the subject of further
definition. The Iowa Supreme Court has had to determine exactly what qualifies as an
appurtenance on several occasions. See State v. Rooney, 862 N.W.2d 367, 376 (Iowa
2015) (collecting cases). Yet despite the legal nature of this definition, we know Iowa’s
statute references means, not elements. Mathis, 136 S. Ct. at 2250 (citing State v.
Duncan, 312 N.W.2d 519, 523 (Iowa 1981)).
In turn, Mr. Mjoness makes a textual argument based on the structure of § 875(c).
He argues the fact that § 875’s four subsections contain different elements and penalties
suggests Congress used the four subsections to differentiate among separate crimes.
10 The full text of 18 U.S.C. § 875 is:
(a) Whoever transmits in interstate or foreign commerce any
communication containing any demand or request for a ransom or reward
for the release of any kidnapped person, shall be fined under this title or
imprisoned not more than twenty years, or both.
(b) Whoever, with intent to extort from any person, firm,
association, or corporation, any money or other thing of value, transmits in
interstate or foreign commerce any communication containing any threat to
kidnap any person or any threat to injure the person of another, shall be
fined under this title or imprisoned not more than twenty years, or both.
(c) Whoever transmits in interstate or foreign commerce any
communication containing any threat to kidnap any person or any threat to
injure the person of another, shall be fined under this title or imprisoned not
more than five years, or both.
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asserts the structure of the statute thus reflects “a clear delineation of crimes by
subsection, undermining the likelihood of further divisibility within each subsection.”
Reply Br. at 2–3. We agree § 875(c) can be read to provide some limited support for a
Congressional intent to distinguish separate crimes by individual subsections, with
alternatives within a subsection constituting means. But the statute’s structure is far from
In sum, none of the textual considerations suggest a clear answer to whether the
alternatives in § 875(c) are means or elements. Therefore, we proceed to the next method
of analysis identified by the Court—the “peek” method. See Mathis, 136 S. Ct. at
2256–57 (explaining that if caselaw and the statute itself “fail to provide clear answers,
federal judges have another place to look: the record of a prior conviction itself”).
Record documents may indicate a criminal statute’s alternatives are means rather
than elements where “the charging document or jury instructions ‘reiterat[e] all the
[statutory alternatives]’” or “‘use a single umbrella term.’” Degeare, 884 F.3d at 1254
(alterations in original) (quoting Mathis, 136 S. Ct. at 2257). By contrast, when these
documents “instead ‘reference[e] one alternative term to the exclusion of all others,’”
(d) Whoever, with intent to extort from any person, firm,
association, or corporation, any money or other thing of value, transmits in
interstate or foreign commerce any communication containing any threat to
injure the property or reputation of the addressee or of another or the
reputation of a deceased person or any threat to accuse the addressee or any
other person of a crime, shall be fined under this title or imprisoned not
more than two years, or both.
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they indicate the statute contains a list of elements. Id. (quoting Mathis, 136 S. Ct.
Because Mr. Mjoness pleaded guilty and did not go to trial, there are no jury
instructions from his case to consult. In such circumstances, we have held “uniform jury
instructions can provide insight into the means/elements question.” Titties, 852 F.3d
at 1270 n.15.11 Looking to uniform or pattern jury instructions technically does not
qualify as employing the peek method, because the peek method involves review of
record documents, rather than legal guidance not specific to the case. Degeare, 884
F.3d at 1254 n.6. Nevertheless, it is prudent “to analyze the relevant uniform instructions
alongside the relevant charging documents because Mathis indicates the same analysis
applies” to charging documents and pattern or uniform jury instructions. Id.
i. Charging document
The charging document in this case states Mr. Mjoness “transmitted in interstate
commerce a communication containing a threat to injure the person of another.” ROA,
Vol. I at 10. That is, the charging document alleges only that Mr. Mjoness made a “threat
to injure,” and does not mention a “threat to kidnap.” The indictment “indicate[s], by
referencing one alternative term to the exclusion of all others, that the statute contains a
11 Titties involved referencing a state’s uniform jury instructions. United States v.
Titties, 852 F.3d 1257, 1270–71 n.15 (10th Cir. 2017). The parties suggest looking to
uniform jury instructions is an appropriate analytical method in federal cases, as well;
specifically, they argue we should look to this circuit’s pattern jury instructions.
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list of elements.” Mathis, 136 S. Ct. at 2257. The charging document thus supports a
conclusion that § 875(c) is divisible.12
ii. Jury instructions
The Tenth Circuit Pattern Jury Instructions provide:
To find the defendant guilty of [violating 18 U.S.C. § 875(c)] you
must be convinced that the government has proved each of the following
beyond a reasonable doubt:
First: the defendant knowingly transmitted a communication
containing a threat to [kidnap any person] [injure the person of another];
Second: the defendant transmitted the communication with the intent
to make a threat, or with knowledge that the communication will be viewed
as a threat;
Third: the communication was transmitted in interstate or foreign
commerce. . . .
10th Cir. Crim. Pattern Jury Instructions No. 2.37.1 (second and third sets of brackets in
12 The government notes “this charging language only reflects the government’s
drafting decision in [Mr.] Mjoness’[s] case.” Appellee Br. at 23. It reports that
indictments and superseding indictments available on Westlaw also tend to charge only
the threat-to-injure alternative, without mentioning the threat-to-kidnap alternative. Id.
at 23 n.6. Mr. Mjoness counters that the government’s “random selection of charging
decisions” from Westlaw is too “small a universe” to be significant. Reply Br. at 4 n.2.
In Mathis, the Supreme Court instructed judges could look at “the record of a prior
conviction itself,” 136 S. Ct. at 2256, not to charging documents from other cases. We
follow the direction of the Supreme Court and rely upon the charging document in this
case as support for construing a threat to injure and a threat to kidnap as alternative
13 This instruction also provides a definition of “threat,” see 10th Cir. Crim.
Pattern Jury Instructions No. 2.37.1, but that definition does not shed light on the
divisibility issue. Nor does the accompanying use note provide any illumination, as it
does not discuss § 875(c)’s “kidnap any person” or “injure the person of another”
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The use of separate sets of brackets, the first containing “kidnap any person” and
the second containing “injure the person of another,” is most reasonably read as
providing a choice between the two possibilities. See 10th Cir. Crim. Pattern Jury
Instructions, Introductory Note (“Brackets indicate optional material or material that
needs to be adapted to a given case.”).14 That is, the instruction will be finalized by
selecting the bracketed language that is applicable, so in the typical case the jury is
instructed it must find only one of the two choices. This indicates the alternatives are
elements rather than means. Where the jury instructions “referenc[e] one alternative term
to the exclusion of all others” rather than listing both, the alternatives are elements.
Mathis, 136 S. Ct. at 2257.
* * *
The Supreme Court in Mathis stated that where the “indictment and jury
instructions . . . referenc[e] one alternative term to the exclusion of all others,” they
should be read to “indicate . . . that the statute contains a list of elements, each one of
which goes toward a separate crime.” Id. Here, the answer is apparent because the pattern
jury instructions and charging document call for only one of the alternative threats. See
id. (noting that “record materials will not in every case speak plainly, and if they do not, a
sentencing judge will not” have the requisite certainty to decide the means/elements issue
14 At oral argument, the government suggested we should not place reliance on
this pattern jury instruction because it is not based on an actual decision from this court.
We have held, however, that state uniform jury instructions are a source of law for the
means/elements inquiry. Titties, 852 F.3d at 1270 n.15; Degeare, 884 F.3d at 1254 n.6.
And the government asserts that “the same principles generally should apply to analyzing
a federal statute.” Appellee Br. at 19 n.9. Using those principles, we consider the pattern
jury instructions instructive.
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(emphasis added)). Where these materials speak plainly, the requisite level of certainty is
Thus, applying the tools identified in Mathis, we conclude with the requisite
certainty that the alternatives in § 875(c) are elements, not means. We therefore apply the
modified categorical approach to determine whether a threat to injure in violation of
§ 875(c) is a crime of violence.
Threat to Injure
Under the modified categorical approach, we “review the record materials to
discover which of the enumerated alternatives played a part in the defendant’s . . .
conviction, and then compare that element (along with all others)” to the relevant
standard, here § 924(c)(3)(A). Id. at 2256. We may consider only certain documents to
make that determination, specifically “the terms of the charging document, 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 . . . some comparable
judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26 (2005);
accord Mathis, 136 S. Ct. at 2249 (“Under [the modified categorical] approach, a
sentencing court looks to a limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine what crime, with what
elements, a defendant was convicted of.”).
Mr. Mjoness does not contest that he was charged with the threat-to-injure
alternative. Moreover, that his offense fell under the threat-to-injure alternative is
confirmed by his charging document, ROA, Vol. I at 10 (alleging Mr. Mjoness
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“transmitted in interstate commerce a communication containing a threat to injure the
person of another”); his plea agreement, ROA, Vol. II at 13–14 (listing as an element that
Mr. Mjoness “violated 18 U.S.C. § 875(c) by transmitting, in interstate commerce, one or
more threats to injure another person” and requiring that Mr. Mjoness agree to provide a
complete factual basis to support the plea); and the factual basis Mr. Mjoness provided at
his change-of-plea hearing, ROA, Vol. III at 31 (transcript of plea hearing at which
Mr. Mjoness agreed he “transmit[ted] a communication containing a threat to injure the
person of another”). Application of the modified categorical approach thus clearly
identifies Mr. Mjoness’s offense as an interstate threat to injure.
Having made that determination, our analysis proceeds to the next step—applying
the categorical approach to the elements of conviction. The precise question is whether
the elements of the “threat to injure” offense categorically involve “the use, attempted
use, or threatened use of physical force against the person or property of another.”
18 U.S.C. § 924(c)(3)(A). Mr. Mjoness concedes his plea agreement did not reserve the
right to argue the threat-to-injure alternative does not involve threatening the use of
physical force. See Oral Argument at 8:41–9:05 (stating that “Mr. Mjoness didn’t argue
. . . the content of the threat-to-injure prong [before the district court], and so under [his]
conditional plea, . . . whether or not a threat to injure” involves the use of physical force
“is not before th[is] court”). Thus, this argument is waived.
Even if he had reserved that argument, however, it would be unsuccessful. “[T]he
‘force’ component in ‘physical force’ refers to ‘violent force—that is, force capable of
causing physical pain or injury to another person.’” Muskett, 970 F.3d at 1239 (quoting
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Johnson, 559 U.S. at 140). A threat to injure another person necessarily involves
threatening to use force capable of injuring another person. The threat-to-injure branch of
§ 875(c) is thus categorically a crime of violence for purposes of § 924(c).
Therefore, we hold Mr. Mjoness’s conviction under § 875(c) for making an
interstate threat to injure is a crime of violence and serves as a proper predicate crime to a
violation of § 924(c).
Outcome: Section 875(c) is divisible, and Mr. Mjoness violated that section by making
interstate threats to injure. Mr. Mjoness’s § 875(c) conviction is categorically a crime of violence. We therefore affirm the district court’s denial of Mr. Mjoness’s motion to dismiss the § 924(c) claim, but on alternate grounds to those relied on by the district