United States v. Wilkins

Appellate Case: 19-5114 Document: 010110671622 Date Filed: 04/15/2022 Page: 1
FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
April 15, 2022
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-5114

IRA LEE WILKINS,

Defendant - Appellant.

_________________________________

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:19-CR-00116-JED-1)
_________________________________

Shira Kieval, Assistant Federal Public Defender (Virginia L. Grady,
Federal Public Defender, with her on the briefs), Denver, Colorado, for the
Defendant-Appellant.

M. Scott Proctor, Assistant United States Attorney (Clinton J. Johnson,
Acting United States Attorney, and Leena Alam, Assistant United States
Attorney, with him on the briefs), Tulsa, Oklahoma, for the Plaintiff-
Appellee.
_________________________________

Before BACHARACH, BRISCOE, and MURPHY, Circuit Judges.
_________________________________

BACHARACH, Circuit Judge.
_________________________________

This case arises out of Mr. Ira Lee Wilkins’s sentence for unlawfully

possessing a firearm. See 18 U.S.C. § 922(g)(1). In deciding the sentence,
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the district court considered the effect of Mr. Wilkins’s prior conviction in

Texas for aggravated robbery. The district court characterized this offense

as a “crime of violence” under the sentencing guidelines, which increased

the base-offense level. U.S.S.G. §§ 2K2.1(a)(4)(A) & (6). Mr. Wilkins

appeals, arguing for the first time that the district court shouldn’t have

considered aggravated robbery as a crime of violence. 1 We affirm.

I. To determine whether aggravated robbery in Texas constitutes a
crime of violence, we must determine the applicable approach.

To determine whether a prior offense constitutes a crime of violence,

we apply either the categorical approach or the modified categorical

approach. United States v. Kendall, 876 F.3d 1264, 1267–68 (10th Cir.

2017).

A. Categorical Approach

Under the categorical approach, we compare the underlying state

statute to the guidelines’ definition of a “crime of violence.” Id. at 1267. If

the statute sweeps beyond the guidelines’ definition of a “crime of

1
After we affirmed the sentence, Mr. Wilkins raised a new issue in the
United States Supreme Court, urging reconsideration based on Borden v.
United States, 141 S. Ct. 1817 (2021). There the Supreme Court had
concluded that a criminal offense with a mens rea of recklessness could not
constitute a violent felony under the Armed Career Criminal Act. Id. at
1834. The Supreme Court granted the request, remanding for consideration
of Borden. We have applied Borden to the sentencing guidelines, holding
that a crime of violence under the sentencing guidelines requires a mens
rea greater than recklessness. United States v. Ash, 7 F.4th 962, 963 (10th
Cir. 2021).

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violence,” we wouldn’t consider the offense a crime of violence. Id. at

1267–68.

We start with how Texas defines aggravated robbery. Under Texas

law, a person commits aggravated robbery if “he commits robbery as

defined in Section 29.02, and he

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or places
another person in fear of imminent bodily injury or death, if the
other person is:

(A) 65 years of age or older; or

(B) a disabled person.”

Tex. Penal Code § 29.03(a).

This definition turns on the meaning of “robbery.” A person commits

robbery under § 29.02 “if, in the course of committing theft . . . and with

intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to
another; or

(2) intentionally or knowingly threatens or places another in fear
of imminent bodily injury or death.”

Tex. Penal Code § 29.02(a).

We compare this definition of aggravated robbery to the guidelines’

definition of a “crime of violence.” The applicable guideline provision,

§ 4B1.2(a)(1), defines a “crime of violence” as a state felony that “has as

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an element the use, attempted use, or threatened use of physical force

against the person of another.” U.S.S.G. § 4B1.2(a)(1). 2 So we must decide

whether Texas’s offense of aggravated robbery necessarily contains an

element of using, attempting to use, or threatening to use physical force

against “the person of another.” Id.

B. Modified Categorical Approach

The parties agree that Texas’s statutes for robbery and aggravated

robbery cover some conduct that wouldn’t fit the applicable definition of a

“crime of violence.” But the government argues that

 the Texas statutes create separate offenses and

 Mr. Wilkins’s conviction involves only the offense that
constitutes a “crime of violence.”

So we must decide whether the Texas statutes refer to different crimes or

just different ways of committing a single crime. We call this inquiry

“divisibility.” United States v. Titties, 852 F.3d 1257, 1266 (10th Cir.

2017).

2
The guidelines contain a separate definition that treats “robbery” as
one of the crimes constituting a “crime of violence.” U.S.S.G.
§ 4B1.2(a)(2). Under this part of the definition, a Texas robbery counts
only if it fits the generic definition of a robbery. See United States v.
O’Connor, 874 F.3d 1147, 1154 (10th Cir. 2017) (concluding that robbery
under the Hobbs Act, which requires the use or threat of force against
property, does not qualify as generic robbery and extends beyond
§ 4B1.2(a)(2)). The government does not characterize Mr. Wilkins’s
offense as a generic robbery, so this definition does not apply.
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A statute is “divisible,” creating multiple crimes, when the statute

“sets out one or more elements of the offense in the alternative.” Descamps

v. United States, 570 U.S. 254, 257 (2013) (emphasis added). But

disjunctively listed statutory components do not automatically qualify as

elements. United States v. Titties, 852 F.3d 1257, 1267 (10th Cir. 2017).

When the statute merely lists “various factual ways of committing some

component of the offense,” the statutory components are considered means

rather than elements. Id. (internal quotation marks & citation omitted). A

statute is divisible only when it lists “multiple, alternative elements, and

so effectively creates several different . . . crimes.” Id. (internal quotation

marks & citation omitted).

If the statute is divisible, creating multiple crimes, the district court

applies the modified categorical approach to determine which crime was

committed. Id. To make that determination, the court consults a limited

class of record documents. Id. at 1266. Once the court determines which

crime the defendant committed, the court compares the elements of that

crime to the guidelines’ definition of a “crime of violence.” Id.

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II. It would not have been an obvious error for the district court to
classify the Texas robbery statute as divisible, creating multiple
crimes.

At issue is the divisibility of the Texas robbery statute, § 29.02(a). 3

See p. 3, above. Subsection “1” requires only recklessness; Subsection “2”

requires either intentional or knowing conduct. So our threshold task is to

decide whether these statutory components refer to elements (reflecting

two separate crimes) or means (different ways of committing the same

offense). Under the plain-error standard, Mr. Wilkins doesn’t show an

obvious error in considering the statutory components as elements.

A. We apply the plain-error standard, preventing reversal
unless the alleged error is obvious.

If Mr. Wilkins had preserved the issue, the government would need

to establish that

 the Texas robbery statute contains two sets of elements and

 Mr. Wilkins’s conviction is a “crime of violence” under the
guidelines because the elements require the use, attempt to use,
or threat to use physical force against another person.

3
Mr. Wilkins also argues that the aggravator at issue—§ 29.03(a)(2)
(“using or exhibiting a deadly weapon”)—does not qualify as a crime of
violence because recklessness would suffice. But aggravated robbery
contains two elements: (1) a robbery under § 29.02(a) and (2) an
aggravator under § 29.03(a). To show that aggravated robbery is not a
crime of violence, Mr. Wilkins needed to establish that both the robbery
and the aggravator require a mens rea of only recklessness. Because we
ultimately conclude that Mr. Wilkins’s robbery offense requires a mens rea
greater than recklessness, we need not address his argument about the
aggravator.
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See United States v. Degeare, 884 F.3d 1241, 1245 (10th Cir. 2018).

But in district court, Mr. Wilkins did not challenge classification of

aggravated robbery as a crime of violence. So we apply the plain-error

standard. See United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th

Cir. 2005) (en banc). Under this standard, Mr. Wilkins must show an error

that is plain, affects substantial rights, and seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id.

Ordinarily, a statute is indivisible unless we can tell with certainty

that the alternative statutory components constitute elements (rather than

means). United States v. Cantu, 964 F.3d 924, 929 (10th Cir. 2020). This

court has not defined the level of certainty required for divisibility; at a

minimum, we must be “at least more certain than not that a statute’s

alternatives constitute elements.” United States v. Degeare, 884 F.3d 1241,

1248 n.1 (10th Cir. 2018) (emphasis in original). But given the plain-error

standard, our ultimate question is whether classification of the statutory

components as elements would have constituted an obvious error. 4 See

pp. 3–4, 6–7, above.

4
Mr. Wilkins argues that we need not “‘definitively’ conclude that
Texas aggravated robbery is indivisible.” Appellant’s Supp. Reply Br. at 2.
We agree. Under the plain-error standard, we don’t require a defendant to
conclusively prove indivisibility. See, e.g., United States v. Cantu, 964
F.3d 924, 935 (10th Cir. 2020).

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B. The district court could have reasonably considered the
statutory components of Texas robbery as elements.

To determine whether the statutory components constitute elements,

we start by considering the pertinent state’s caselaw, the pattern jury

instructions, and the statute itself. See United States v. Cantu, 964 F.3d

924, 928 (10th Cir. 2020) (the state’s caselaw and the statutory text);

Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir. 2020) (the pattern jury

instructions). If those sources show with certainty whether the separate

statutory components constitute elements or means, the inquiry ends.

Cantu, 964 F.3d at 928. If the characterization remains uncertain, the court

can “peek” at the record to determine whether the statutory components

constitute elements or means. Id. at 928–29.

1. Pattern Jury Instructions and State Caselaw

Texas’s pattern jury instructions suggest that the statutory

components are elements. But Mr. Wilkins points to two Texas state-court

opinions as proof that the statutory components are means:

a. Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014)

b. Burton v. State, 510 S.W.3d 232 (Tex. Ct. App. 2017)

These opinions provide little help in characterizing the statutory

components as elements or means.

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a. Texas’s Criminal Pattern Jury Charges

The state’s pattern jury instructions provide guidance on the content

of Texas law. Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir. 2020); see

also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45 (Tex. 2007) (“[O]ur

trial courts routinely rely on the Pattern Jury Charges in submitting cases

to juries, and we rarely disapprove of these charges.”). That guidance is

particularly helpful here because

 Mr. Wilkins pleaded guilty and

 the record contained no case–specific jury instructions.

See United States v. Titties, 852 F.3d 1257, 1270 n.15 (10th Cir. 2017)

(considering the state’s pattern jury instructions in similar circumstances).

In Texas, the pattern jury instructions differ for the two subsections

of the robbery statute. Compare Tex. Crim. Pattern Jury Charges § 87.2

(Robbery by Threats), with Tex. Crim. Pattern Jury Charges § 87.1

(Robbery Bodily Injury). Those differences “suggest[] that robbery by

threat and robbery by bodily injury are separate crimes within one statute.”

Martin v. Kline, No. 19-15605, 2021 WL 6102175, at *1 (9th Cir. Dec. 22,

2021) (unpublished); see also United States v. Leaverton, 895 F.3d 1251,

1255 (10th Cir. 2018) (basing divisibility in part on the uniform jury

instructions’ indication that the statutory components require proof of

different elements). So the pattern jury instructions support

characterization of the statutory components as elements.
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b. Cooper v. State

Despite the pattern jury instructions, Mr. Wilkins points to Cooper v.

State, 430 S.W.3d 426 (Tex. Crim. App. 2014). But there a majority of the

court didn’t agree on whether the statutory components constituted

elements or means.

In Cooper, Texas’s highest criminal court found a double jeopardy

violation when the defendant had been convicted of both “aggravated

robbery by causing bodily injury” and “aggravated robbery by threat.” Id.

at 427. Five out of eight participating judges joined the majority.

Two judges in the majority wrote concurrences, each joined by

another judge in the majority. Both concurrences agreed that “the ‘threat’

and ‘bodily’ injury elements of robbery [were] simply alternative methods

of committing a robbery.” Id. at 434 (Keller, P.J., concurring); id. at 439

(Cochran, J., concurring). Mr. Wilkins thus argues that the concurrences

definitively treat the alternative phrases in the Texas robbery statute as

means rather than elements.

But the cited statements come from the concurrences, not the

majority opinion. The concurrences included only a plurality (four of the

eight judges). And under Texas law, the plurality does not constitute

binding authority. See Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175,

176–77 (Tex. 1994) (concluding that a prior plurality opinion didn’t

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constitute authority for future cases when “a majority of the sitting court”

had not agreed on the principles of law).

Mr. Wilkins argues that the cited statements garnered a court

majority because

 the four concurring judges had joined the majority and

 a fifth judge in the majority had not expressed disagreement.

But we cannot read the fifth judge’s silence as implicitly adopting the

reasoning of the concurrences. See Sands v. State, 64 S.W.3d 488, 494–95

(Tex. Ct. App. 2001) (concluding that a prior concurrence didn’t reflect a

majority of the court when three justices would reach the same outcome

but didn’t join the majority’s reasoning). After all, the fifth judge in the

majority could have incorporated this position if he had agreed with the

concurrences.

Mr. Wilkins argues that even if the concurrences do not bind us, they

show that the double-jeopardy question turned on classification as

elements or means. In support, Mr. Wilkins observes that

 the dissenting judges in Cooper found no violation of double
jeopardy, reasoning that robbery-by-injury and robbery-by-
threat are different offenses and

 Cooper overruled an opinion addressing classification of
robbery-by-threat and robbery-by-assault as means or elements.

Granted, we have consulted double-jeopardy cases when deciding

divisibility. See, e.g., United States v. Cantu, 964 F.3d 924, 930 (10th Cir.

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2020); United States v. McKibbon, 878 F.3d 967, 975 (10th Cir. 2017). But

when we’ve considered double-jeopardy cases, their reasoning has clarified

the characterization as elements or means. For example, we relied on a

state-court opinion to find indivisibility because the court had found a

legislative intent “to create a single, unitary offense” in enacting the

pertinent statute. United States v. McKibbon, 878 F.3d 967, 975 (10th Cir.

2017) (internal quotation marks & citation omitted). Similarly, we

interpreted an opinion to support indivisibility when the state court had

recognized that two counts addressed a single offense and shared the same

elements. United States v. Cantu, 964 F.3d 924, 930 (10th Cir. 2020).

In contrast, the majority opinion in Cooper noted in a single

sentence, without any explanation, that the court had found a double-

jeopardy violation, saying only that the court had “review[ed] the opinion

of the court of appeals, the record, and the briefs of the parties.” Cooper v.

State, 430 S.W.3d 426, 427 (Tex. Crim. App. 2014) (majority opinion).

Without an explanation for this finding, we have little to help us classify

the statutory components as elements or means. So the district court

wouldn’t have committed an obvious error under Cooper by declining to

treat the statutory components as means.

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c. Burton v. State

Mr. Wilkins also relies on Burton v. State, 510 S.W.3d 232 (Tex. Ct.

App. 2017). But Burton didn’t expressly address classification as elements

or means.

In Burton, an intermediate appellate court found no violation of the

defendant’s right to a unanimous verdict when the jury could infer

aggravated robbery from either a bodily injury or threat. Id. at 237. The

Burton court ultimately held that “causing bodily injury or threatening the

victim [were] different methods of committing the same [aggravated

robbery] offense.” Id. (emphasis added). But what did the court mean by

methods? The court did not say, leaving it “unclear whether the [Burton]

court was referring to the elements of a crime, the means of satisfying a

single element, or the crimes set forth by a statute under a [divisibility]

analysis.” United States v. Lerma, 877 F.3d 628, 634 n.4 (5th Cir. 2017).

Despite this lack of clarity in Burton, Mr. Wilkins interprets the

court’s use of the term methods as synonymous with means. This

interpretation is possible, but not definitive, for courts sometimes use the

term methods when referring to alternative statutory components that could

consist of either elements or means. See, e.g., United States v. Harris, 950

F.3d 1015, 1017 (8th Cir. 2020) (“If the statute lists alternative methods of

committing the offense, we must determine whether the statute lists

alternative elements that define separate crimes and must be found by a
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jury or whether the statute merely ‘specifies various means of fulfilling the

crime’s elements.’” (quoting United States v. Doyal, 894 F.3d 974, 975

(8th Cir. 2018) (emphasis added))).

Mr. Wilkins also characterizes the statutory components of Texas

robbery as means because Burton did not require jury unanimity on

whether the defendant had committed robbery by threat or by injury.

Burton v. State, 510 S.W.3d 232, 236 (Tex. App. 2017); see also United

States v. Degeare, 884 F.3d 1241, 1249–50 (10th Cir. 2018) (basing

indivisibility on a jury’s ability to find guilt despite internal disagreement

among the jury). But if Mr. Wilkins were right, we would have an internal

conflict among Texas’s intermediate appellate courts. In an earlier opinion,

Woodard v. State, for example, the Texas Court of Appeals had held that

the robbery statute “provide[d] two separate, underlying robbery

offenses—robbery causing bodily injury and robbery by threat.” 294

S.W.3d 605, 608 (Tex. Ct. App. 2009).

In Burton, the court didn’t address—much less overrule—Woodard’s

characterization of the two statutory components as separate offenses. 5 So

5
The Burton court did refer to Woodard in a footnote. But that
reference addressed only Woodard’s consideration of the aggravating
factors of aggravated robbery, stating that they involved “simply
descriptions or means by which the underlying offense of robbery causing
bodily injury can be committed.” Burton v. State, 510 S.W.3d 232, 237 n.4
(Tex. Ct. App. 2017) (citing Woodard v. State, 294 S.W.3d 605, 609 (Tex.
Ct. App. 2009)).

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the district court wouldn’t have committed an obvious error by declining to

characterize the statutory components as means based on Burton.

* * *

The cited state-court opinions thus do not resolve the issue of

divisibility.

2. Statutory Text

Besides the pattern jury instructions and case law, we also consider

the statute itself. The alternative statutory components, listed in separate

numbered paragraphs, 6 involve not only different conduct but also different

elements. “The inclusion of different sets of mens rea elements is strong

evidence that the Texas robbery statute is divisible,” involving a difference

in elements rather than means. Martin v. Kline, No. 19-15605, 2021 WL

6102175, at *1 (9th Cir. Dec. 22, 2021) (unpublished); see also United

States v. Garrett, 24 F.4th 485, 489 (5th Cir. 2022) (reasoning that the

statutory components in Texas’s robbery statute constitute elements in part

6
Granted, we have held that this factor alone would not show with
certainty that the statutory components constitute elements. United States
v. Degeare, 884 F.3d 1241, 1253 (10th Cir. 2018). But we can consider this
factor as one of the statutory characteristics to determine whether the
statutory components constitute elements or means.

Mr. Wilkins points out that the Supreme Court hasn’t listed the
existence of separate subsections as a factor suggesting divisibility. But we
often consider factors beyond those that the Supreme Court has considered.
See, e.g., United States v. Hamilton, 889 F.3d 688, 696 (10th Cir. 2018).

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because of the different mental states for robbery-by-injury and robbery-

by-threat).

We can also consider analogous state statutes in determining

divisibility. See, e.g., Johnson v. Barr, 967 F.3d 1103, 1109 (10th Cir.

2020). For example, Texas’s assault statute contains three subdivisions in

separate paragraphs, divided by semicolons. Each paragraph describes

different behavior and mens rea. See Tex. Penal Code § 22.01. 7 These

subdivisions, according to the Texas Court of Criminal Appeals, describe

“three distinct criminal offenses.” Landrian v. State, 268 S.W.3d 532, 540

(Tex. Crim. App. 2008). The court thus explained that “aggravated assault

by causing bodily injury” and “aggravated assault by threat” were two

separate crimes: “The first is a result-oriented offense and the second is a

conduct-oriented offense.” Id.; see also United States v. Garrett, 24 F.4th

7
In Texas, a person commits assault “if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to
another, including the person’s spouse;

(2) intentionally or knowingly threatens another with imminent
bodily injury, including the person’s spouse; or

(3) intentionally or knowingly causes physical contact with another
when the person knows or should reasonably believe that the
other will regard the contact as offensive or provocative.”

Tex. Penal Code Ann. § 22.01.

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485, 489 (5th Cir. 2022) (“The Texas simple robbery statute creates two

distinct crimes, robbery-by-injury and robbery-by-threat.”).

Mr. Wilkins points out that the two statutory components trigger the

same punishments. The presence of the same punishment suggests

characterization as means, but that suggestion isn’t dispositive. United

States v. Bouziden, 725 F. App’x 653, 657 (10th Cir. 2018) (unpublished). 8

3. Record Documents

When uncertainty remains after considering the pattern jury

instructions, state caselaw, and the state statute itself, we can “peek” at the

record documents to determine whether the items listed in the statute are

elements or means. Mathis v. United States, 136 S. Ct. 2243, 2256–57

(2016) (quoting Rendon v. Holder, 782 F.3d 466, 473–474 (9th Cir. 2015)

(Kozinsky, J., dissenting)). 9

Mr. Wilkins argues that the record supports characterization as

means because the state court did not call the charge against Mr. Wilkins

“anything but ‘aggravated robbery’” or cite a specific subsection of the

robbery statute. Appellant’s Supp. Reply Br. at 4 n.1. For this argument,

Mr. Wilkins cites multiple orders deferring adjudication.

8
Bouziden is persuasive but not precedential. See 10th Cir. R. 32.1(A).
9
Mr. Wilkins attaches the relevant documents to his supplemental
brief and requests judicial notice of these documents. See Fed. R. Evid.
201(b), (c)(2), (d). We grant his request.

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But in “peeking” at the record to determine divisibility, we consider

only “conclusive records made or used in adjudicating guilt,” such as the

charging document, jury instructions, and plea agreement. United States v.

Abeyta, 877 F.3d 935, 942 (10th Cir. 2017) (quoting Shepard v. United

States, 544 U.S. 13, 21 (2005)). Orders deferring adjudication do not help

us on divisibility. See id. (declining to “peek” at the docket sheet because

it falls short of being a “‘conclusive record[] made or used in adjudicating

guilt’”).

In the indictment, only the first paragraph sets out a charge of

aggravated robbery. This paragraph includes

 one subsection of robbery (“intentionally or knowingly
threaten[ing] or plac[ing] another in fear of imminent bodily
injury or death”), § 29.02(a)(2), and

 one aggravator (“us[ing] and possess[ing] a deadly weapon”),
§ 29.03(a)(2).

In four additional paragraphs, the indictment states how Mr. Wilkins had

committed robbery by “intentionally, knowingly and recklessly” causing

bodily injury to the victim under § 29.02(a)(1), but not “serious” bodily

injury—an aggravator under § 29.03(a)(1). True Bill of Indictment, No.

219-81050-99 (Collin Cnty., Texas Dist. Ct. Nov. 10, 1999). And none of

these paragraphs refer to any additional aggravators under § 29.03(a). See

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id. 10 Because the indictment includes only one charge of aggravated

robbery and that charge refers only to one statutory component of Texas

robbery under § 29.02(a), we can infer that the statute contains a list of

elements rather than means. Mathis v. United States, 136 S. Ct. 2243, 2257

(2016).

Mr. Wilkins’s guilty plea also supports characterization as elements.

See United States v. Adkins, 883 F.3d 1207, 1215 (9th Cir. 2018)

(concluding that a plea agreement shows that the statutory elements

constitute different elements rather than means). When Mr. Wilkins

pleaded guilty, he admitted only the conduct alleged in the first paragraph

of the indictment, the part charging aggravated robbery: “I . . . did then

and there intentionally and knowingly, while in the course of committing

theft of property and with intent to obtain and maintain control of said

property, threaten and place [the victim] in fear of imminent bodily injury

and death, and used and exhibited a deadly weapon, namely: a firearm.”

Stipulation of Facts, State v. Wilkins, No. 219-81050-99 (Collin Cnty.,

Texas Dist. Ct. Dec. 9, 1999). This admission refers only to one part of the

statute on aggravated robbery.

10
The indictment also includes one paragraph on criminal attempt,
alleging that Mr. Wilkins committed aggravated robbery and robbery
through acts “amounting to more than mere preparation that tend[ed] but
fail[ed] to effect the commission of offense intended.” Tex. Penal Code
§ 15.01(a).
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The indictment and stipulation arguably leave some uncertainty on

divisibility. For example, the indictment includes multiple paragraphs

under the heading “aggravated robbery” without explaining whether the

charge relates to one crime or multiple crimes. Judges could thus differ in

how they interpret their peeks at the state-court records. But the mere

existence of uncertainty and reasonable disagreement does not mean that

characterization as elements would have constituted an obvious mistake.

C. Two other circuits have ruled that the statutory components
of Texas robbery constitute elements, and we are reluctant
to create a circuit split.

Our court hasn’t addressed the divisibility of the Texas statute on

robbery or aggravated robbery. But the Fifth and Ninth Circuits have

addressed the divisibility of Texas robbery, and both have treated the

statutory components as elements. See United States v. Garrett, 24 F.4th

485, 489 (5th Cir. 2022); Martin v. Kline, No. 19-15605, 2021 WL

6102175, at *1 (9th Cir. Dec. 22, 2021) (unpublished); United States v.

Wehmhoefer, 835 F. App’x 208, 211–12 (9th Cir. 2020) (unpublished).

Granted, these opinions aren’t binding on a question of Texas law. See

United States v. Faulkner, 950 F.3d 670, 674 n.5 (10th Cir. 2019) (“[O]ur

divisibility inquiry looks to state, not federal, court decisions.”). But one

of the two circuits to address the issue was the Fifth Circuit. And several

other circuits ordinarily defer to a federal circuit court’s interpretation of

state law when the circuit includes that state. See Whitewater W. Indus.,

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Ltd. v. Alleshouse, 981 F.3d 1045, 1051 (Fed. Cir. 2020); In re Dow

Corning Corp., 778 F.3d 545, 549 (6th Cir. 2015); Desiano v.Warner-

Lambert & Co., 467 F.3d 85, 90 (2d Cir. 2006), aff’d sub nom., Warner-

Lambert Co., LLC v. Kent, 552 U.S. 440 (2008); Dawn Equip. Co. v.

Micro-Trak Sys., Inc., 186 F.3d 981, 989 n.3 (7th Cir. 1999); Charter Oil

Co. v. Am. Employers’ Ins. Co., 69 F.3d 1160, 1164 (D.C. Cir. 1995). 11 For

example, the Sixth Circuit expressly stated that it would defer to the Fifth

Circuit in interpreting Texas law on divisibility. See United States v.

Cavazos, 950 F.3d 329, 335 & n.2 (6th Cir. 2020).

Even without such deference, we are ordinarily reluctant to create a

circuit split without a “sound reason.” United States v. Thomas, 939 F.3d

1121, 1130–31 (10th Cir. 2019) (quoting Anderson v. Private Cap. Grp.,

549 F. App’x 715, 718 (10th Cir. 2013) (unpublished)). Because Mr.

Wilkins presents no compelling basis to create a circuit split based on the

pattern jury instructions, the state caselaw, the state statute, or the record

documents, we lack a sound reason to reject the other circuit courts’

characterization of the statutory components as elements. Under the plain-

11
The Supreme Court takes a similar approach. Elk Grove Unified Sch.
Dist. v. Newdow, 542 U.S. 1, 16 (2004) (“Our custom on questions of state
law ordinarily is to defer to the interpretation of the Court of Appeals for
the Circuit in which the State is located.”), abrogated in part on other
grounds, Lexmark Intern., Inc. v. Static Control Components, 572 U.S.
118, 127 (2014).

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error standard, we thus conclude that the district court wouldn’t have

committed an obvious error by characterizing the statutory components as

elements.

III. Under the modified categorical approach, Mr. Wilkins was
convicted of a crime of violence.

Because the district court would not have obviously erred by

considering the statutory components as elements, we must

 apply the modified categorial approach and

 consider which crime was committed.

In pleading guilty, Mr. Wilkins stipulated to facts matching the crime of

intentionally or knowingly threatening or putting another in fear of

imminent bodily injury or death (using or exhibiting a deadly weapon).

Tex. Penal Code § 29.02(a)(2), § 29.03(a)(2). And Mr. Wilkins does not

deny that this offense would constitute a crime of violence under the

sentencing guidelines.

IV. Conclusion

If an error exists, it would not have been obvious. For an obvious

error on divisibility, the defendant need not identify a precedent or state

case addressing the same statute. See United States v. Cantu, 964 F.3d 924,

935 (10th Cir. 2020) (precedent); United States v. Titties, 852 F.3d 1257,

1272 n.19 (10th Cir. 2017) (state case). But merely pointing to an

uncertainty wouldn’t satisfy the plain-error standard. Two circuit courts

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have concluded that the Texas robbery statute identifies two separate

crimes, and one of those circuits sometimes obtains deference when

applying Texas law. See pp. 19–21, above. So even if the district court had

erred, the error would not have been obvious.

The district court could have reasonably viewed the statutory

components as elements. The statutory components provide different mens

rea requirements in separate paragraphs, the pattern jury instructions refer

to the separate statutory components as different crimes, and the

indictment and factual basis for the plea clarify that Mr. Wilkins was

charged with a crime requiring intentional or knowing conduct. Given

these circumstances, the district court would not have committed an

obvious error by characterizing the statutory components as elements.

In the absence of an obvious mistake, application of the modified

categorical approach would not have constituted a plain error. The

stipulation of facts shows that Mr. Wilkins pleaded guilty to the set of

elements requiring intentional or knowing conduct. So if the district court

had erred in applying the modified categorical approach, the error would

not have been plain. We thus affirm the sentence.

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