FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS July 16, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-5001 JESSE BUD LEAVERTON, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:16-CR-00080-GKF-1) _________________________________ William P. Widell, Jr., Assistant Federal Public Defender, Tulsa, Oklahoma (Barry L. Derryberry, Assistant Federal Public Defender, Tulsa, Oklahoma; Julia L. O’ Connell, Federal Public Defender, Tulsa, Oklahoma, with him on the briefs), for Defendant- Appellant. Timothy L. Faerber, Office of the United States Attorney, Tulsa, Oklahoma (Neal C. Hong, Office of the United States Attorney, Tulsa, Oklahoma; Loretta F. Radford, Acting United States Attorney, with him on the brief), for Plaintiff-Appellee. _________________________________ Before LUCERO, HOLMES, and McHUGH, Circuit Judges. _________________________________ LUCERO, Circuit Judge. _________________________________ Jesse Leaverton was convicted of three counts of bank robbery. At sentencing, the district court concluded that 18 U.S.C. § 3559(c) applied because Leaverton had been previously convicted of two serious violent felonies, enhancing his sentence from a maximum of twenty years to a mandatory term of life imprisonment. Leaverton now appeals, arguing that his prior conviction for Oklahoma manslaughter does not qualify under § 3559(c). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse Leaverton’s sentence and remand to the district court for resentencing. I Leaverton was convicted of three counts of bank robbery in violation of 18 U.S.C. § 2113(a). His Presentence Investigation Report (“PSR”) calculated a total offense level of 27 and a criminal history category of III, resulting in an advisory Guidelines range of 87 to 108 months. However, the government contended that Leaverton was subject to a mandatory life sentence under 18 U.S.C. § 3559(c)(1). That statute requires that anyone convicted of “a serious violent felony” who has two or more prior convictions for serious violent felonies be sentenced to life imprisonment. § 3559(c)(1). A serious violent felony is one that falls within a list of enumerated offenses or is punishable by a term of imprisonment of at least ten years and meets certain other criteria. § 3559(c)(2)(F). The sole point of contention was whether Leaverton’s prior conviction for Oklahoma Manslaughter I qualified as a serious violent felony. That statute contains three subsections. See Okla. Stat. tit. 21, § 711. The government argued that Leaverton was convicted under a subsection that applies when a killing is “perpetrated without a design to effect death, and in a heat of passion, but in a cruel 2 and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.” Okla. Stat. tit. 21, § 711(2). In support of its argument, the government attached a docket sheet that described Leaverton as pleading guilty to “MANSLAUGHTER I, SECTION #2, TITLE 711.” At sentencing, the district court found that Leaverton had been convicted under subsection two. It held ...
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