United States v. B'Quan Ferguson

USCA11 Case: 22-12013 Document: 49-1 Date Filed: 04/30/2024 Page: 1 of 24

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22-12013
____________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
B'QUAN FERGUSON,

Defendant-Appellant.

____________________

Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:21-cr-00157-WTM-CLR-1
____________________

Before JORDAN, LAGOA, and TJOFLAT, Circuit Judges.
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2 Opinion of the Court 22-12013

LAGOA, Circuit Judge:
B’Quan Ferguson appeals his 180-month sentence following
his conviction for one count of possession of a firearm by a felon,
in violation of 18 U.S.C. § 922(g)(1). On appeal, Ferguson contends
that the district court erred in finding that his prior Georgia convic-
tion under O.C.G.A. § 16-10-32(b) for threatening physical harm to
a witness qualifies as a “violent felony” under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e). After careful considera-
tion of the parties’ arguments and with the benefit of oral argu-
ment, we conclude that Ferguson’s prior conviction qualifies as a
violent felony and we affirm the district court’s judgment.
I. BACKGROUND
On October 31, 2020, B’Quan Ferguson was driving in Sa-
vannah, Georgia, when local police officers recognized him as the
subject of an ongoing investigation. The officers observed Fergu-
son park at a tire shop and walk to a nearby convenience store.
When Ferguson returned, the officers were waiting by his vehicle,
and they inquired whether Ferguson owned the car. Ferguson an-
swered that it was his brother’s car, but a record check revealed
that Ferguson had a suspended license and that the vehicle had no
insurance and an expired registration. At that point, the officers
observed a pistol grip sticking out from underneath the front pas-
senger’s seat. Ferguson was cited for driving with a suspended li-
cense and without insurance, and the vehicle was towed.
Officers obtained a search warrant for the vehicle and found
a pistol under the front passenger seat. A search warrant for
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22-12013 Opinion of the Court 3

Ferguson’s DNA, coupled with a DNA test on the firearm, con-
firmed that Ferguson’s DNA was present on the pistol. Officers
obtained an arrest warrant for Ferguson for the possession of a fire-
arm by a convicted felon, which they executed on December 27,
2020.
A grand jury charged Ferguson with one count of possession
of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Fergu-
son pled guilty to the charge under a written plea agreement.
The probation officer’s presentence investigation report
(PSI) concluded that Ferguson qualified as an armed career crimi-
nal under ACCA based on prior convictions for possession with in-
tent to distribute, conspiracy to possess with intent to distribute,
and threatening a witness. Based on an offense level of twenty-four
and a criminal history category of VI, Ferguson’s initial guideline
range was 168 to 210 months’ imprisonment. But because Fergu-
son qualified as an armed career criminal, ACCA mandated a fif-
teen-year minimum sentence. The guideline range was thus 180
to 210 months.
According to the PSI, the facts underlying Ferguson’s con-
viction for threatening a witness involved an individual named Syl-
vester Harris. After threatening Harris with a gun, Ferguson was
indicted and charged under O.C.G.A. § 16-10-32(b) with having
“threatened physical harm” toward Sylvester Harris with “the in-
tent to hinder, delay, prevent, and dissuade” Harris from testifying
in an official proceeding. Ferguson pled guilty to the offense and
was sentenced to five years’ imprisonment in that case.
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At sentencing in this case, Ferguson objected to the PSI’s
conclusion that he was an armed career criminal. Ferguson argued
that his Georgia conviction for threatening a witness did not qual-
ify as a violent felony for the purposes of ACCA enhancement. 1
The government answered that, because ACCA’s definition of “vi-
olent felony” simply requires a felony plus the threat of “something
more than non-consent,” a felony conviction for threatening
“physical harm” constitutes a “violent felony” under ACCA. The
district court overruled Ferguson’s objection, applied the ACCA
enhancement, and sentenced Ferguson to 180 months’ imprison-
ment.
This timely appeal ensued.
II. STANDARD OF REVIEW
We review de novo whether a defendant’s prior conviction
qualifies as a crime of violence for purposes of ACCA. United States
v. Matthews, 3 F.4th 1286, 1291 (11th Cir. 2021).
III. ANALYSIS
Ferguson challenges the district court’s determination that a
conviction for threatening a witness under Georgia law qualifies as
a violent felony under ACCA. He contends that the Georgia stat-
ute under which he was convicted is indivisible and cannot serve
as an ACCA predicate because it criminalizes both threats of

1 Ferguson also argued that his conspiracy conviction did not count as a “seri-

ous drug offense” for the purposes of the ACCA enhancement. He does not
raise that argument on appeal.
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22-12013 Opinion of the Court 5

economic and physical harm. He also argues that, even if the stat-
ute is divisible, a threat of physical harm under the statute does not
constitute a violent felony for ACCA purposes. Specifically, Fergu-
son reasons that the Georgia statute can be violated by misde-
meanor conduct that constitutes no more than an offensive touch-
ing. For the following reasons, we disagree.
A. Categorical and Modified Categorical Approaches
ACCA provides that a defendant who is convicted of pos-
sessing a firearm as a felon must receive a fifteen-year mandatory-
minimum sentence if he has three or more prior convictions for “a
violent felony or a serious drug offense, or both.” 18 U.S.C.
§ 924(e)(1). ACCA defines “violent felony” as:
any crime punishable by imprisonment for a term ex-
ceeding one year . . . that—
(i) has as an element the use, attempted use, or threat-
ened use of physical force against the person of an-
other; or
(ii) is burglary, arson, or extortion, involves use of ex-
plosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.
Id. § 924(e)(2)(B). The first clause, § 924(e)(2)(B)(i), is commonly
referred to as ACCA’s “elements” clause. United States v. Oliver, 962
F.3d 1311, 1316 (11th Cir. 2020).
“Under this provision, ‘use’ requires active employment of
physical force.” Id. (citing Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)).
The Supreme Court has clarified that “the phrase ‘physical force’
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6 Opinion of the Court 22-12013

means violent force—that is, force capable of causing physical pain
or injury to another person.” Id. (quoting Johnson v. United States,
559 U.S. 133, 140 (2010)).
O.C.G.A. § 16-10-32(b), the statute at issue in this appeal,
makes it a felony to threaten a witness in order to prevent that wit-
ness from testifying. Specifically, the statute provides:
Any person who threatens or causes physical or eco-
nomic harm to another person or a member of such
person’s family or household, threatens to damage or
damages the property of another person or a member
of such person’s family or household, or attempts to
cause physical or economic harm to another person
or a member of such person’s family or household
with the intent to hinder, delay, prevent of dissuade
any person from:
(1) attending or testifying in an official proceeding;
...
shall be guilty of a felony and, upon conviction
thereof, shall be punished by imprisonment for not
less than two years nor more than ten years or by fine
of not less than $10,000.00 nor more than $25,000.00
or both.
Id. Because O.C.G.A § 16-10-32(b) does not criminalize burglary,
arson, extortion, or any of the other crimes enumerated in
§ 924(e)(2)(B)(ii), we must decide whether a conviction under
O.C.G.A § 16-10-32(b) qualifies as a violent felony under ACCA’s
elements clause. See Oliver, 962 F.3d at 1316.
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To determine whether a state conviction qualifies as a “vio-
lent felony” under ACCA, we employ a “categorical approach.”
Id.; accord Taylor v. United States, 495 U.S. 575, 600 (1990). The cat-
egorical approach asks whether “the ‘least of the acts criminalized’
by the statute of conviction has an element requiring ‘the use, at-
tempted use, or threatened use of physical force against the person
of another.” United States v. Sharp, 21 F.4th 1282, 1285 (11th Cir.
2021) (quoting Oliver, 962 F.3d at 1316). If so, then the conviction
categorically qualifies as a violent felony; if not, then the conviction
categorically does not qualify as a violent felony. Id.
Because the categorical approach asks only whether the stat-
ute of conviction categorically fits within ACCA’s definition of “vi-
olent felony,” a court should look only to the “elements of the stat-
ute of conviction” rather than the “specific conduct of a particular
offender.” United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017)
(alteration adopted) (quoting Mathis v. United States, 579 U.S. 500,
510 (2016)); see Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (“[A]
state offense is a categorical match with a generic federal offense
only if a conviction of the state offense ‘“necessarily” in-
volved . . . facts equating to [the] generic [federal offense].’” (alter-
ations in original) (quoting Shepard v. United States, 544 U.S. 13, 24
(2005) (plurality opinion))).
But sometimes, a statute “lists multiple, alternative ele-
ments, and so effectively creates ‘several different crimes,’” only
one of which categorically qualifies as a violent felony. Descamps v.
United States, 570 U.S. 254, 263–64 (2013) (alterations adopted)
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8 Opinion of the Court 22-12013

(quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)). Such statutes
are called “divisible” statutes. Id. at 257. In such cases, courts apply
the “modified categorical approach.” Id. at 263–64. The modified
categorical approach is simply the categorical approach applied to
one of a divisible statute’s listed crimes. Id. at 263 (“[T]he modified
approach merely helps implement the categorical approach when
a defendant was convicted of violating a divisible statute.”). For
example, under the reasoning of Descamps, a single state statute
might prohibit both threatening murder and threatening property
damage. If the statute is divisible between the two threats, and the
threat of murder constitutes a violent felony, then a jury conviction
for threatening murder categorically constitutes a conviction for a
violent felony. Cf. id. at 261–62 (explaining that where a state bur-
glary statute criminalizes entry of an automobile and entry of a
building, the modified categorical approach would apply to the lat-
ter element but not the former, assuming that the statute were di-
visible). To decide which “version” of a divisible statute formed
the basis of a defendant’s conviction, a court may look at certain
judicial documents, including the indictment, plea agreement, plea
colloquy, or other comparable records. 2 See Shepard, 544 U.S. at 26.

2 These documents are known as Shepard documents and are records related

to a defendant’s prior convictions, including charging documents, plea agree-
ments, plea-colloquy transcripts, and other comparable judicial records. Shep-
ard v. United States, 544 U.S. 13, 26 (2005).
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Because the modified categorical approach applies only to
divisible statutes, courts must distinguish divisible statutes, which
list alternative elements, from indivisible statutes, which list vari-
ous means of committing an offense. Mathis, 579 U.S. at 517. If an
indivisible statute specifies means of committing an offense that in-
clude both violent and nonviolent conduct, then that statute does
not qualify categorically as a “violent felony” under ACCA. Oliver,
962 F.3d at 1316–17. By contrast, if a divisible statute criminalizes
violent and nonviolent conduct as two separate elements, then a
defendant may commit a violent felony by violating the statute’s
violent conduct element, regardless of the fact that the statute also
criminalizes nonviolent conduct. Sharp, 21 F.4th at 1285–86.
O.C.G.A § 16-10-32(b) contains three clauses that each crim-
inalize a type of activity: (1) to threaten or cause harm to a person;
(2) to threaten or cause damage to property; and (3) to attempt to
cause physical or economic harm to a person. As noted, the first
clause, at issue here, criminalizes two types of threatened or caused
harm: “economic” and “physical.” The government admits that
threatening economic harm does not constitute a “violent felony.”
And it is clear that threatening property damage does not involve
the use of “physical force directed against the person of another.”
Thus, to determine whether Ferguson’s conviction constitutes a
“violent felony,” we must first decide whether O.C.G.A. § 16-10-
32(b) is divisible. If the statute’s first clause is indivisible, and phys-
ical and economic harm are simply alternative means of commit-
ting the same offense, then the statute does not categorically con-
stitute a “violent felony” under ACCA. If, instead, the statute is
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10 Opinion of the Court 22-12013

divisible, not only by the three types of prohibited action (harm to
a person, damage to property, or attempted harm to a person) but
also by the type of harm (economic or physical), then we must next
determine whether threatening “physical harm” has an element re-
quiring “the use, attempted use, or threatened use of physical force
against the person of another.”
To be divisible, a statute must set out “one or more elements
of the offense in the alternative—for example, stating that burglary
involves entry into a building or an automobile.” Descamps, 570
U.S. at 257 (emphasis in original). “Thus, for a statute to be divisi-
ble, the statutory phrases listed in the alternative must be elements,
not means.” Oliver, 962 F.3d at 1317 (citing Mathis, 579 U.S. at 517).
“‘Elements’ are the ‘constituent parts’ of a crime’s legal defini-
tion—the things the ‘prosecution must prove [and the jury must
find beyond a reasonable doubt] to sustain a conviction.’” Mathis,
579 U.S. at 504 (quoting Black’s Law Dictionary 634 (10th ed. 2014)).
“Means,” by contrast, are merely “various factual ways of commit-
ting some component of the offense.” Id. at 506.
As explained by the Supreme Court in Mathis, there are
three methods for determining whether an alternatively phrased
statute sets forth elements or means. First, the “statute on its face
may resolve the issue.” Id. at 518. The statute may do so plainly,
by its very structure and layout. For example, in Davis, we held
that a statute criminalizing sexual abuse was divisible because it
consisted of two clauses set off by numbers, one of which criminal-
ized sexual abuse by forcible compulsion, and the other of which
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22-12013 Opinion of the Court 11

criminalized sexual abuse of a person incapable of consent. 875
F.3d at 598. Courts have also found that the disjunctive “or” indi-
cates that alternatives are different elements. See, e.g., Descamps,
570 U.S. at 257 (explaining that an example of a divisible statute is
one “stating that burglary involves entry into a building or an auto-
mobile”); United States v. Bates, 960 F.3d 1278, 1293 (11th Cir. 2020)
(explaining that a statute which listed two alternatives in the dis-
junctive intended the alternatives to be elements); United States v.
Gundy, 842 F.3d 1156, 1167 (11th Cir. 2016) (finding that a statute
contained three subsets of different locational elements because
the statute’s “plain text” stated the elements “in the alternative and
in the disjunctive”). Further, since Apprendi v. New Jersey, 530 U.S.
466 (2000), statutes may also indicate that alternatives are elements
by assigning them different punishments. Mathis, 579 U.S. at 518.
As part of this textual analysis, courts also look to whether
the statute’s list of alternatives is exhaustive or non-exhaustive. If
a statutory list is drafted to only offer “illustrative examples,” then
it is not setting forth a series of elements, but rather a variety of
possible means. Id. (quoting United States v. Howard, 742 F.3d 1334,
1348 (11th Cir. 2014)). We have interpreted the phrase “illustrative
examples” to describe a “non-exhaustive” list of means. Oliver, 962
F.3d at 1317 (quoting Howard, 742 F.3d at 1348). For instance, in
Howard, we found that an Alabama statute was not divisible where
it defined “building” as “[a]ny structure which may be entered by
persons . . . and such term includes any vehicle, aircraft or
warcraft . . . and such term includes any railroad box car or other
rail equipment or trailer or tractor trailer or combination thereof.”
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742 F.3d at 1348 (quoting Ala. Code § 13A-7-1(2)). We explained
that the word “include” made the list non-exhaustive, indicating
that the various types of structures mentioned were examples ra-
ther than alternative elements. Id. By comparison, statutes setting
forth exhaustive lists are more likely to be listing elements than
means. In Oliver, for example, we held that a statute listing three
types of terroristic threats (threatening a crime of violence, releas-
ing hazardous substances, and damaging property) was divisible
because the list was “exhaustive” and lacked “illustrative exam-
ples.” 962 F.3d at 1319.
The second method of determining a statute’s divisibility is
to look for a definitive answer from a precedential state court deci-
sion. Mathis, 579 U.S. at 517–18. In Mathis, the Supreme Court
explained that a state court decision “definitively answer[ed] the
question” where it held that alternatively listed items were “‘alter-
native methods’ of committing one offense, so that a jury need not
agree” on a specific statutory alternative. Id. (alteration adopted)
(quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981)). “When
a ruling of that kind exists, a sentencing judge need only follow
what it says.” Id.
Third, federal courts can also look for guidance in the record
of a prior conviction itself. Id. at 519. Indeed, Mathis explains that
federal judges may look to the record of the prior conviction “if
state law fails to provide clear answers.” Id. at 518. When parsing
a divisible statute, we apply the modified categorical approach to
determine whether the defendant committed a crime of violence.
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Alvarado-Linares, 44 F.4th at 1342. Under the modified categorical
approach, we look beyond the elements enumerated in the statute
to Shepard documents—the indictment, jury instructions, plea
agreement, and plea colloquy—to determine which specific crime,
comprising which elements, the defendant committed. Id. If the
indictment or jury instructions in a particular case reiterate all the
alternative terms from the statute or use a “single umbrella term”
like “premises,” then the record is “as clear an indication as any that
each alternative is only a possible means of commission, not an el-
ement that the prosecutor must prove to a jury beyond a reasona-
ble doubt.” Mathis, 579 U.S at 519. Conversely, “by referencing one
alternative term to the exclusion of all others” an indictment could
indicate that the statute “contains a list of elements, each one of
which goes toward a separate crime.” Id.
B. Divisibility of Georgia’s Threatening-a-Witness Statute
With this framework in mind, we now turn to the Georgia
statute before us. Neither we nor the Georgia Supreme Court have
definitively held that O.C.G.A § 16-10-32(b) is divisible. Recall that
O.C.G.A. § 16-10-32(b) criminalizes three types of activity intended
to dissuade a witness from testifying in a public proceeding: (1)
threatening or causing harm to a person, (2) threatening or causing
damage to property, and (3) attempting to cause harm to a person.
The first clause, at issue here, also criminalizes two types of threat-
ened or caused harm: economic harm and physical harm. Id. The
parties contest only the divisibility of the first clause. But whether
the statute is divisible between economic and physical harm is im-
material if the statute is not also divisible between the three types
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14 Opinion of the Court 22-12013

of intimidating activity, the second of which would not constitute
a violent felony under ACCA. We must begin, then, with the di-
visibility of the three clauses.
Ferguson conceded at oral argument that O.C.G.A § 16-10-
32(b) is divisible between the three types of activity, and we agree.
To begin with, the statute’s framework is similar to the statute we
held divisible in Oliver and is divisible for the same reasons. See
Oliver, 962 F.3d at 1319. On the face of the statute, the three clauses
set forth an exhaustive list of intimidating activities that qualify as
violations under the statute. O.C.G.A § 16-10-32(b). Likewise, “the
lack of illustrative examples indicates that the Georgia statute con-
tains divisible threat elements.” Oliver, 962 F.3d at 1319 (citing
Mathis, 579 U.S. at 518).
Moving to the second step of the Mathis framework, no
Georgia state court decision “definitively answers” whether
O.C.G.A. § 16-10-32(b), as a whole, lists elements or means. See
Mathis, 579 U.S. at 518. Though a handful of Georgia courts have
implied that the statute is divisible by describing “economic harm”
as an “element” of the offense, none have explicitly ruled on the
statute’s divisibility. See Shelnutt v. State, 657 S.E.2d 611, 616 (Ga.
Ct. App. 2008); Palmer v. State, 682 S.E.2d 323, 324 (Ga. Ct. App.
2009). Mathis’s second step thus does not offer much guidance, as
the Georgia state courts have not weighed in upon any aspect of
§ 16-10-32(b)’s divisibility.
As such, we turn to Mathis’s third step—Ferguson’s record
of conviction. Ferguson’s indictment charged Ferguson with
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violating the first clause by threatening “physical harm to Sylvester
Harris with the intent to hinder, delay, prevent, and dissuade him
from attending and testifying in an official proceeding.” The indict-
ment makes no mention of property damage or attempted physical
or economic harm. Exclusion of these other types of activity is fur-
ther proof that the statute contains a list of divisible elements. See
Oliver, 962 F.3d at 1320. Accordingly, we conclude that the statute
itself is divisible between the three types of prohibited activity.
Having concluded that O.C.G.A. § 16-10-32(b) is divisible
among the three clauses discussed above, we now must consider
whether the first clause—which prohibits threatening or causing
harm to a person—is itself divisible. Ferguson argues that the first
clause is not divisible between threatening economic harm and
threatening physical harm. Because threatening economic harm is
clearly not a violent felony, Ferguson maintains that his conviction
under the first clause cannot categorically qualify as a violent fel-
ony. We disagree.
To begin with, the text of the statute suggests that “physical
harm” and “economic harm” are two alternative elements, setting
forth two crimes, rather than two possible means of committing a
single crime. To review, the statute’s first clause criminalizes
“threaten[ing] or caus[ing] physical or economic harm to another
person or member of such person’s family or household . . . with
the intent to hinder, delay, prevent or dissuade any person
from . . . attending or testifying . . . .” O.C.G.A § 16-10-32(b) (em-
phasis added). Unlike the three clauses we found divisible above,
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16 Opinion of the Court 22-12013

economic and physical harm are not set off by commas. Nonethe-
less, the similarity between the clause’s structure and those statutes
that we have previously declared divisible suggests that the statute
at issue here establishes physical and economic harm as two alter-
native elements.
Like the statute in Oliver, the clause eschews umbrella terms
and instead specifies two distinct types of harm capable of satisfy-
ing the statute. The exhaustiveness of the clause and the lack of
illustrative examples indicate that the statute contains divisible
threat elements. See Oliver, 962 F.3d at 1319.
Moreover, like the statute in Gundy, O.C.G.A. § 16-10-32(b)
states the types of harms in the “alternative and in the disjunctive.”
In Gundy, this Court concluded that a Georgia burglary statute
listed three different locational “elements” that “effectively cre-
ate[ed] several different crimes.” 842 F.3d at 1167. The statute in
question in Gundy, which has since been revised, originally stated:
A person commits the offense of burglary when,
without authority and with the intent to commit a fel-
ony or theft therein, he enters or remains within the
dwelling house of another or any building, vehicle,
railroad car, watercraft, or other such structure de-
signed for use as the dwelling of another or enters or
remains within any other building, railroad car, air-
craft, or any room or any part thereof.
O.C.G.A. § 16-7-1 (effective until June 30, 2012); accord Gundy, 842
F.3d at 1164. As in Oliver, we noted that the statute did not contain
any single umbrella term, such as “building” or “occupied
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22-12013 Opinion of the Court 17

structure,” and that it lacked the word “include” or a definition
providing a “non-exhaustive laundry list of other places or loca-
tions.” Gundy, 842 F.3d at 1166. Instead, we parsed the statute’s
long clause to contain three alternative locational elements, despite
the fact that those elements were not set off by commas: (1) the
dwelling house of another, (2) any building, vehicle, railroad car,
watercraft, or other such structure designed for use as the dwelling
of another, and (3) within any other building, railroad car, aircraft,
or any room or any part thereof. In parsing the statute this way, we
relied on the “plain text of the Georgia statute,” which listed the
three subsets of different locational elements “in the alternative
and disjunctive.” Id. at 1167. We also cited to Descamps for the
proposition that an example divisible statute is one “stating that
burglary involves entry into a building or an automobile.” Id. (em-
phasis in original) (quoting Descamps, 570 U.S. at 257).
Here, O.C.G.A. § 16-10-32(b)’s first clause similarly separates
two types of harm by a disjunctive— “[a]ny person who threatens
or causes physical or economic harm to another person”—indicat-
ing intended divisibility. O.C.G.A. § 16-10-32(b); see also Bates, 960
F.3d at 1293. Thus, given our precedent, we conclude that although
O.C.G.A. § 16-10-32(b) refers to physical and economic harm in the
same clause, the clause is nonetheless divisible.
Mathis’s third step also points to the statute’s first clause as
being divisible. As mentioned above, Ferguson’s indictment
charged him only with threatening physical harm. Had the indict-
ment charged Ferguson with threatening physical or economic
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18 Opinion of the Court 22-12013

harm, it would have been a clear indication that the prosecution
did not have to prove one of those alternatives. See Mathis, 579 U.S.
at 518 (explaining that an indictment that charges a defendant with
burgling a “building, structure, or vehicle” lists means of commis-
sion rather than alternative elements requiring proof ). The same
would be true if the indictment used an umbrella term such as
“threatening harm.” Id. Instead, Ferguson’s indictment charged
only one of the two harms, “[e]xclud[ing] the other type[] of
threat[] listed,” and indicating that the prosecutor had to prove
physical harm to prevail. See Oliver, 962 F.3d at 1320 (citing Mathis,
579 U.S. at 519). Thus, Ferguson’s indictment suggests that the stat-
ute lists two divisible elements in the form of alternative harms,
each one of which constitutes a separate crime. 3 Id. In light of the
statute’s text and Ferguson’s indictment, we conclude that O.C.G.A
§ 16-10-32(b) is divisible between economic and physical harm.
C. Applying the Modified Categorical Approach
Because the first clause of O.C.G.A. § 16-10-32(b) is divisible,
we apply the modified categorical approach and ask whether Fer-
guson’s conviction for threatening a witness with physical harm
has, as an element, “the use, attempted use, or threatened use of
physical force against the person of another.” § 924(e)(2)(B)(i).

3 In at least three other Georgia cases concerning violations of O.C.G.A. § 16-

10-32(b), defendants were similarly charged with only one of the two alterna-
tive harms. See Brown v. State, 745 S.E.2d 699, 705 (Ga. Ct. App. 2013), aff'd,
759 S.E.2d 489 (2014); Palmer, 682 S.E.2d at 324 (Ga. Ct. App. 2009); Shelnutt,
657 S.E.2d at 613 (Ga. Ct. App. 2008).
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22-12013 Opinion of the Court 19

The Supreme Court has explained that “physical force” in
§ 924(e)(2)(B)(i) means “violent force—that is, force capable of caus-
ing physical pain or injury to another person.” Johnson, 559 U.S. at
140 (emphasis in original). As such, § 924(e)(2)(B)(i) is not satisfied
by the “slightest offensive touching,” though it may consist “of
only that degree of force necessary to inflict pain—a slap in the
face, for example.” Id. at 139, 143. Despite the similarity of the
term “physical force” with O.C.G.A. § 16-10-32(b)’s phrase, “physi-
cal harm,” this does not necessarily mean that the Georgia statute
includes the “threatened use of physical force” required by ACCA.
See id. at 138 (“The meaning of ‘physical force’ in § 924(e)(2)(B)(i) is
a question of federal law, not state law.”).
Neither O.C.G.A § 16-10-32(b) nor caselaw interpreting the
statute define the term “physical harm.” In the absence of a defi-
nition, we give the term “physical harm” its plain and ordinary
meaning. See Oliver, 962 F.3d at 1321 (noting that the rules of stat-
utory construction require courts to “afford the statutory text its
plain and ordinary meaning”). As the Supreme Court recognized
in Johnson, the word “physical” “plainly refers to force exerted by
and through concrete bodies—distinguishing physical force from,
for example, intellectual force or emotional force.” Id. The Oxford
English dictionary defines harm as “[e]vil (physical or otherwise) as
done to or suffered by some person or thing; hurt, injury, damage,
mischief.” Harm, Oxford English Dictionary,
https://www.oed.com/search/dictionary/?scope=En-
tries&q=harm. The plain meaning of “physical harm” is thus
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20 Opinion of the Court 22-12013

largely coextensive with the consequence of “violent force,” which
includes “physical pain or injury.” See Johnson, 559 U.S. at 140.
Ferguson contends that O.C.G.A. § 16-10-32(b)’s prohibition
of threatened physical harm does not include a threat of “physical
force” because it may be satisfied by “a threat of a mere unwanted
touching.” But both this Court and Georgia state courts have de-
fined the term “physical harm” in analogous circumstances as re-
quiring force greater than “mere offensive touching.” In Talaman-
tes-Enriquez v. U.S. Attorney General, 12 F.4th 1340 (11th Cir. 2021),
this Court explained that the Georgia crime of simple battery is
“categorically a crime of violence” under the Immigration and Na-
tionality Act (“INA”) because “intentionally causing physical harm
to the victim” requires more than “simple physical contact with the
victim.” Id. at 1351 (quoting Hernandez v. U.S. Att’y Gen., 513 F.3d
1336, 1340 (11th Cir. 2008)) (noting that Johnson’s definition of
“physical force” was equally applicable under the INA as ACCA).
Similarly, Georgia courts have defined “physical harm” in two
other Georgia statutes as requiring “a touching that goes beyond
insult to the infliction of pain or physical injury” and “intentional
physical contact that causes actual physical damage, injury or hurt
to the victim.” See Hammonds v. State, 587 S.E.2d 161, 163 (Ga. Ct.
App. 2003) (defining “physical harm” in O.C.G.A. § 16-5-23(a)(2),
Georgia’s simple battery statute); State v. Randle, 781 S.E.2d 781, 783
(Ga. 2016) (defining “intentional physical harm” in O.C.G.A § 17-
10-6.2(c)(1)(D), a sexual assault statute). In sum, there is strong ev-
idence that the phrase “physical harm” in Georgia law contem-
plates more than offensive touching and instead requires the sort
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22-12013 Opinion of the Court 21

of physical act, capable of creating “injury” and “damage,” that sat-
isfies the Supreme Court’s definition of “physical force” as used in
ACCA. See Oliver, 962 F.3d at 1321 (finding that a threat to commit
“any crime of violence” is a threat of “physical force” because the
term “violence” contemplates “physical force so as to injure or
damage.”).
Ferguson also maintains that a “threat of physical harm”
does not constitute a violent felony because various misdemeanors
would qualify as threats or causes of “physical harm” under
O.C.G.A § 16-10-32(b). But this argument is without merit. Even
assuming that some threat constituting a threat of physical harm
under O.C.G.A. § 16-10-32(b) would be a misdemeanor if not for
the defendant’s intent to interfere with a witness, that does not
make the misdemeanor conduct less a threat of physical harm.
ACCA merely requires that a “violent felony” include a threat of
physical force “as an element.” § 924(e)(2)(B)(i). It makes no de-
mand that the violent or physical element be responsible for classi-
fying the crime as a felony. In United States v. Gandy, 917 F.3d 1333
(11th Cir. 2019), we held that simple battery, which constitutes a
felony when committed against jail detainees, counted as a “violent
felony” for ACCA purposes. Id. at 1339–40. We made no issue of
the fact that the “violent” aspect of the felony would be a misde-
meanor if not for the additional circumstances of the victim’s sta-
tus. Id. Ferguson has given us no better reason to do so here.
In his conclusion, Ferguson briefly argues that his conviction
cannot count as a violent felony because ACCA requires that a
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22 Opinion of the Court 22-12013

violent felony be “punishable by imprisonment for a term exceed-
ing one year,” and O.C.G.A. § 16-10-32(b) makes imprisonment op-
tional by allowing punishment either by “imprisonment for not less
than two years” or by fine. This is not a persuasive argument. By
its very terms, ACCA defines a violent felony as one that is able to
be punished by a year’s imprisonment, not one that must be. See
§ 924(e)(2)(B) (“[T]he term ‘violent felony’ means any crime pun-
ishable by imprisonment for a term exceeding one year . . .” (em-
phasis added)). O.C.G.A. § 16-10-32(b) explicitly allows for such im-
prisonment and thus meets ACCA’s requirement.
In sum, a conviction under O.C.G.A. § 16-10-32(b) for threat-
ening physical harm includes a “threat of physical force” as an ele-
ment because “physical harm” is a phrase that the dictionary, as
well as the Georgia Supreme Court, defines similarly to how the
Supreme Court has defined “physical force” as used in ACCA. See
Hammonds, 587 S.E.2d at 163; Johnson, 559 U.S. at 140. Accordingly,
we conclude that Ferguson’s conviction under O.C.G.A § 16-10-
32(b) qualifies as a violent felony under ACCA’s elements clause.
IV. CONCLUSION
For the foregoing reasons, we affirm Ferguson’s sentence.
AFFIRMED.
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22-12013 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, Concurring.
The “categorical approach” has been both decried and de-
fended. Compare, e.g., United States v. Doctor, 842 F.3d 306, 313−16
(4th Cir. 2016) (Wilkinson, J., concurring), with, e.g., United States v.
Faust, 853 F.3d 39, 61−66 (1st Cir. 2017) (Barron, J., concurring).
But given recent Supreme Court decisions like United States v. Tay-
lor, 596 U.S. 845, 850−51 (2022), it looks like that approach “is here
to stay,” at least for the foreseeable future. See Amit Jain & Phillip
Dane Warren, An Ode to the Categorical Approach, 67 UCLA L. Rev.
Discourse 132, 151 (2019).
The Supreme Court has given us some methods for differ-
entiating between “means” and “elements” in the “modified cate-
gorical” approach for divisible statutes. See Mathis v. United States,
579 U.S. 500, 517−19 (2016). See also Descamps v. United States, 570
U.S. 254, 286 (2013) (Alito, J., dissenting) (“The feature that distin-
guishes elements and means is the need for juror agreement[.]”).
But this guidance, to me, is largely unhelpful in the really difficult
cases (e.g., those where there is no caselaw from the state courts to
help with the divisibility analysis). In such cases, differentiating be-
tween means and elements can sometimes feel like a coin flip.
In trying to answer the means/elements question, I find it
helpful to analyze whether the types of conduct prohibited by the
statute are qualitatively different in terms of the societal and per-
sonal harms that are proscribed. If they are different in kind—like
those resulting from battery and sexual assault—the statute will
likely be divisible. But if the harms are similar—like the prohibited
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2 JORDAN, J., Concurring 22-12013

entry into a home, office, warehouse, building, apartment, or con-
dominium, or the different types of narcotic drugs that can’t be
possessed—then the statute is probably not divisible. Cf. Paul H.
Robinson, Reforming the Federal Criminal Code: A Top Ten List, 1 Buff.
Crim. L. Rev. 225, 233 (1997) (“The mark of a systematic approach
to creating and defining offenses is a code that organizes offenses
conceptually: offenses against the person, offenses against prop-
erty, etc., and within each category additional categories.”).
Here, threatening or causing physical harm is conceptually
different from threatening or causing economic harm in the first
clause of O.C.G.A. § 16-10-32(b). In the world of criminal law, of-
fenses against one’s person are generally viewed as different than
offenses against one’s property. The former category usually en-
tails harm (or potential harm) to a human being, while in the latter
category such harm (or potential harm) is normally just a possible
collateral consequence. See Connor Sunderman, Violence Against
Property: The Breaking Point of Federal Crime of Violence Classifica-
tions, 122 Colum. L. Rev. 755, 789−90 (2022).
With these thoughts, I join Judge Lagoa’s opinion for the
Court.