Case: 17-15565 Date Filed: 01/06/2020 Page: 1 of 37 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-15565 ________________________ D.C. Docket No. 4:17-cr-00065-WTM-GRS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NAJEE OLIVER, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Georgia ________________________ (January 6, 2020) Before WILSON, JILL PRYOR, and TALLMAN,∗ Circuit Judges. WILSON, Circuit Judge: ∗Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit, sitting by designation. Case: 17-15565 Date Filed: 01/06/2020 Page: 2 of 37 Najee Oliver pled guilty to possessing a firearm and ammunition as a convicted felon under 18 U.S.C. §§ 922(g) and 924(a)(2). Based on his prior convictions, including a prior Georgia conviction for making terroristic threats under O.C.G.A. § 16-11-37(a) (2010), Oliver was sentenced under the Armed Career Criminal Act (ACCA) to 180 months in prison. On appeal, Oliver argues that his prior conviction for making terroristic threats is not a predicate violent felony under the elements clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(i). Because § 16-11-37(a) is indivisible and overbroad under Mathis v. United States, 136 S. Ct. 2243, 2249 (2016), a violation of that statute categorically does not constitute a predicate offense under the elements clause of the ACCA. Therefore, Oliver does not have three qualifying predicate offenses, as required to support the application of the ACCA enhancement, and we remand to the district court for resentencing. I. Background Late one evening, an officer from the Savannah-Chatham Metropolitan Police Department observed Oliver pulling on car door handles. When the officer approached, Oliver fled, and the officer followed. During the pursuit, Oliver threw a firearm and a bag over a fence into a nearby construction site. Shortly after, the officer apprehended Oliver. Police then investigated the construction site and recovered a loaded 9mm Glock pistol, which the police later determined was stolen 2 Case: 17-15565 Date Filed: 01/06/2020 Page: 3 of 37 in a residential burglary. They also recovered the bag, which contained 45 grams of marijuana. A federal grand jury indicted Oliver on three felony counts: possession of a firearm and ammunition by a convicted felon, in violation of §§ 922(g)(1) and 924(a)(2) (Count One); possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Count Two); and using and carrying a firearm during and in relation to the drug trafficking offense charged in Count Two, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three). Oliver pled guilty to Count One pursuant to a written plea agreement, and the district court dismissed Counts Two and Three. A probation officer prepared a presentence investigation report (PSI), which stated that Oliver qualified as an armed career criminal under the ACCA based on two prior convictions for possession with intent to distribute and his prior Georgia conviction for making terroristic threats. 1 Based on an offense level of 30 and a criminal history category of VI, his initial guideline range was 168–210 months’ imprisonment. But ...
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