FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 2, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-5087 (D.C. Nos. 4:16-CV-00323-GKF-TLW and JOHN ROBERT DURAN, 4:09-CR-00040-GKF-1) (N.D. Okla.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, MORITZ, and EID, Circuit Judges. _________________________________
John Duran appeals the district court’s order denying his 28 U.S.C. § 2255
motion. In doing so, he mounts a two-part attack. First, Duran asserts that in 2009,
the sentencing court ordered him to serve an enhanced prison sentence under the
residual clause of the Armed Career Criminal Act (ACCA) of 1984, 18 U.S.C.
§ 924(e)(2)(B)(ii). And as he points out, the Supreme Court subsequently declared
that residual clause unconstitutionally vague. See Johnson v. United States, 135 S. Ct.
2551, 2557 (2015). Second, Duran alleges that he doesn’t qualify for an enhanced
sentence under the ACCA’s elements clause, see § 924(e)(2)(B)(i), or its enumerated-
offenses clause, see § 924(e)(2)(B)(ii), which both remain intact post-Johnson. See
* This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 135 S. Ct. at 2563. Thus, he maintains, the sentencing court’s Johnson error wasn’t
harmless, and the district court erred in concluding otherwise and in denying his
§ 2255 motion on that basis.
We need not address whether a Johnson error occurred here because—for the
reasons discussed below—we agree with the district court that any such error was
harmless. Accordingly, we affirm.
Background
In 2009, Duran pleaded guilty to one count each of possessing a firearm in
furtherance of a crime of violence and possessing a firearm and ammunition after a
felony conviction. See 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A)(i), 924(e)(1).
At the time of his 2009 sentencing, Duran had six prior Oklahoma convictions
for robbery by fear. See Okla. Stat. Ann. tit. 21, § 791 (defining robbery, in relevant
part, as “a wrongful taking of personal property in the possession of another, from his
person or immediate presence, and against his will, accomplished by means of . . .
fear”), id. § 794 (defining requisite fear to include both fear of injury to person and
fear of injury to property).
Duran stipulated that Oklahoma robbery by fear constituted a “violent felony”
for ACCA purposes. Thus, the sentencing court imposed the ACCA’s mandatory
minimum sentence of 15 years in prison. See § 924(e)(1), (e)(2)(B) (imposing
mandatory minimum sentence for offenders with three or more violent-felony
convictions). But in light of Duran’s stipulation, the sentencing court found it
unnecessary to specify whether it determined that robbery by fear satisfied the
2 ACCA’s elements clause, see § 924(e)(2)(B)(i) (defining violent felony, in relevant
part, as offense that “has as an element the use, attempted use, or threatened use of
physical force against the person of another”), the ACCA’s enumerated-offenses
clause, see § 924(e)(2)(B)(ii) (defining violent felony, in relevant part, as offense that
“is burglary, arson, or extortion, [or] involves use of explosives”), or the ACCA’s
residual clause, see § 924(e)(2)(B)(ii) (defining violent felony, in relevant part, as
offense that “otherwise involves conduct that presents a serious potential risk of
physical injury to another”).
Six years later, the Supreme Court struck down the last of these three
clauses—the residual clause—as unconstitutionally vague. See Johnson, 135 S. Ct.
at 2557. Eleven months after that, Duran filed a motion to vacate his sentence under
§ 2255. In that motion, Duran argued that Oklahoma robbery by fear doesn’t
constitute a violent felony post-Johnson and that he is therefore entitled to
resentencing.
The district court disagreed. In doing so, it first rejected the government’s
assertion that Duran couldn’t demonstrate a Johnson error occurred—i.e., that the
sentencing court actually relied on the residual clause to classify robbery by fear as a
violent felony—simply because “the record [wa]s silent” on this point. R. vol. 1, 126
n.1. Instead, the district court concluded that under those circumstances, Duran had
no burden to show that the sentencing court actually relied on the ACCA’s residual
3 clause.1 Thus, the district court assumed from the silent record that a Johnson error
occurred and proceeded to ask whether that error was harmless. That is, the district
court proceeded to analyze whether robbery by fear continues to constitute a violent
felony post-Johnson under either the ACCA’s elements clause or its enumerated-
offenses clause.
In answering the harmless-error question, the district court first noted that
under Oklahoma law, one can commit robbery by fear via fear of injury to a person
or via fear of injury to property. §§ 791, 794. And Duran didn’t dispute that robbery
by fear of injury to a person satisfies the ACCA’s elements clause. Instead, the
district courted noted, Duran argued only that robbery by fear of injury to property
neither (1) “has as an element the use, attempted use, or threatened use of physical
force against the person of another,” as required by § 924(e)(2)(B)(i)’s elements
clause, nor (2) “is burglary, arson, or extortion, [or an offense that] involves use of
explosives,” as required by § 924(e)(2)(B)(ii)’s enumerated-offenses clause. Thus,
Duran argued below, robbery by fear isn’t categorically an ACCA predicate because
at least some conduct covered by § 791 doesn’t satisfy § 924(e)(2)(B) post-Johnson.
See United States v. Titties, 852 F.3d 1257, 1266 (10th Cir. 2017) (“‘[I]f the statute
1 We have since held otherwise. See United States v. Washington, 890 F.3d 891, 896 (10th Cir. 2018) (holding that “burden is on the defendant to show by a preponderance of the evidence” that sentencing court relied on residual clause). But because we ultimately agree with the district court that any Johnson error that occurred here was harmless, we need not address whether Duran has carried his burden of demonstrating that such an error indeed occurred. Instead, we may simply assume for the sake of argument that Duran can make that showing; even with the benefit of that assumption, he isn’t entitled to relief. 4 [of conviction] sweeps more broadly’ than the ACCA definition—that is, if some
conduct would garner a conviction but would not satisfy the definition—then any
‘conviction under that law cannot count as an ACCA predicate.’” (first alteration in
original) (quoting Descamps v. United States, 570 U.S. 254, 261 (2013))).
Citing this court’s opinion in United States v. Castillo, 811 F.3d 342 (10th Cir.
2015), superseded by regulation as recognized in United States v. O’Connor, 874
F.3d 1147, 1152 (10th Cir. 2017), the district court disagreed.
In Castillo, the defendant argued that California robbery by fear doesn’t
constitute “a ‘crime of violence’ for purposes of a sentencing enhancement under
§ 2L1.2 of the United States Sentencing Guidelines” (the Guidelines) because,
according to the defendant, (1) the requisite fear may be fear of injury to a person or
fear of injury to property, and (2) robbery by fear of injury to property doesn’t
constitute a crime of violence. Castillo, 811 F.3d at 344, 346 (quoting U.S.S.G.
§ 2L1.2(b)(1)(A)(ii)). We rejected that argument, reasoning that when robbery by
fear is “achieved through threats to a person,” it “meets the generic robbery
definition.” Id. at 347. And when robbery by fear is instead “based on a threat to
property,” it “corresponds to generic extortion.” Id. Accordingly, we concluded, “all
conduct that falls within” California’s statutory definition of robbery by fear
“‘matches the generic version’ of an enumerated offense,” thus rendering robbery by
fear a crime of violence for purposes of § 2L1.2. Id. at 349 & n.2 (quoting Descamps,
570 U.S. at 264).
5 Applying that same logic here, the district court first reasoned that Oklahoma’s
statutory definition of “[r]obbery by fear of unlawful injury to a person satisfies the
ACCA’s elements clause.” R. vol. 1, 130. Next, it concluded that Oklahoma’s
statutory definition of robbery fear of injury to property “qualifies as a violent felony
because—as in Castillo—it corresponds to extortion, which is an enumerated offense
in the ACCA.” Id. “As a result,” the district court ruled, robbery by fear
“categorically qualif[ies] as [a] violent felon[y],” thus rendering any Johnson error
harmless. Id. at 131.
Based on this conclusion, the district court denied Duran’s § 2255 motion.
Duran appeals.
Analysis
In determining whether a § 2255 petitioner is entitled to relief under Johnson,
our inquiry typically unfolds in two steps. At the first step, we ask whether the
sentencing court relied on the residual clause in imposing an enhanced ACCA
sentence. If so, then we proceed to the second step and ask whether the sentencing
court’s Johnson error was harmless. See United States v. Lewis, 904 F.3d 867,
872–73 (10th Cir. 2018).
But for the reasons discussed above, see supra n.1, our inquiry in this case
begins—and, as it turns out, ends—with the second of these two steps. That is, we
decline to resolve whether the sentencing court relied on the residual clause to
classify Oklahoma robbery by fear as a violent felony. Instead, we simply assume
that it did and proceed directly to the harmless-error question: whether Oklahoma
6 robbery by fear continues to constitute a violent felony under the ACCA post-
Johnson.
Duran urges us to answer this question in the negative. In support, he advances
three distinct arguments. All three are subject to de novo review. See United States v.
Ridens, 792 F.3d 1270, 1272 (10th Cir. 2015).
First, Duran alleges that the district court erred in dividing robbery by fear into
two separate offenses (robbery by fear of injury to a person and robbery by fear of
injury to property) and then classifying each offense as a violent felony under a
separate ACCA clause. That’s because, according to Duran, the ACCA doesn’t
permit such “[c]onjunctive [r]eliance” on two different ACCA clauses to classify a
single offense as a violent felony. Aplt. Br. 18. Second, Duran asserts that even
assuming the district court properly divided robbery by fear into two separate
offenses and applied a different ACCA clause to each, it nevertheless erred in
concluding that robbery by fear of injury to property categorically satisfies the
enumerated-offenses clause. Third, Duran insists that the modified categorical
approach is unavailable. Thus, he concludes, we must reverse the district court’s
order denying his § 2255 motion and remand with instructions to resentence him
without the ACCA enhancement.
We reject Duran’s first and second challenges to the district court’s
harmlessness ruling and conclude, for the reasons discussed below, that robbery by
fear categorically constitutes a violent felony post-Johnson. Accordingly, we decline
to address whether, as Duran asserts in his final challenge, the modified categorical
7 approach applies. Cf. Castillo, 811 F.3d at 349 n.2 (explaining that when offense
categorically constitutes crime of violence for purposes of § 2L1.2, “[a]pplication of
the modified categorical approach is . . . neither necessary nor . . . appropriate”).
I. Conjunctive Reliance
In classifying Oklahoma robbery by fear as a violent felony, the district court
divided robbery by fear into two separate crimes (robbery by fear of injury to a
person and robbery by fear of injury to property) and determined that each of those
offenses constitutes a violent felony under a different ACCA clause. In doing so, the
district court relied on our opinion in Castillo, where we took a similar approach to
determine that California robbery by fear constitutes a crime of violence for purposes
of § 2L1.2. See 811 F.3d at 344, 346–47. But as Duran points out, Castillo doesn’t
provide a perfect analogy.
In Castillo we began, just as the district court did here, by dividing robbery by
fear into two separate crimes: robbery by fear of injury to a person and robbery by
fear of injury to property. See id. at 346. And we then concluded that each of those
separate crimes categorically constitutes a crime of violence for purposes of § 2L1.2.
But in doing so, we didn’t classify one of those offenses as a crime of violence under
§ 2L1.2’s enumerated-offenses clause, see § 2L1.2 cmt. n.1(2) (defining crime of
violence, in relevant part, as “murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery, arson, extortion, [or] the use or
unlawful possession of a firearm . . . or explosive material”), and the other as a crime
of violence under § 2L1.2’s elements clause, see id. (defining crime of violence, in
8 relevant part, as “any other offense . . . that has as an element the use, attempted use,
or threatened use of physical force against the person of another”).2 Instead, we held
that robbery by fear of injury to persons and robbery by fear of injury to property
both satisfy § 2L1.2’s enumerated-offenses clause because the former corresponds
with generic robbery and the latter corresponds with generic extortion. Castillo, 811
F.3d at 347.
Here, on the other hand, the district court applied two separate ACCA
clauses—the elements clause and the enumerated-offenses clause, respectively—to
determine that robbery by fear categorically constitutes a violent felony post-
Johnson. According to Duran, this was error.
In support, Duran notes that Congress opted to separate the ACCA’s elements
clause from its enumerated-offenses clause with the disjunctive “or,” rather than the
conjunctive “and.” See § 924(e)(2)(B)(i)–(ii) (defining “violent felony,” in relevant
part, as an offense that “has as an element the use, attempted use, or threatened use of
physical force against the person of another[] or . . . is burglary, arson, or extortion,
[or] involves use of explosives” (emphasis added)). By choosing to link these two
definitional clauses with “or” rather than “and,” Duran insists, Congress expressed its
2 “Given ‘the similarity in language between the ACCA and [the Guidelines], we have occasionally looked to precedent’” that interprets the latter “for guidance” in interpreting the former. United States v. Ramon Silva, 608 F.3d 663, 671 (10th Cir. 2010) (quoting United States v. Hernandez, 568 F.3d 827, 830 n.3 (10th Cir. 2009)) (relying on “line of cases interpreting” § 2L1.2(b)(1)(A)(ii) to determine whether offense at issue constituted ACCA predicate), abrogated on other grounds by Mathis v. United States, 136 S. Ct. 2243 (2016). 9 “intent that [the] two criteria cannot be combined to create a two-part standard that is
used to determine whether a single conviction is [for] a violent felony.” Aplt. Br. 19.
We disagree. As Duran’s argument implicitly recognizes, Congress hardly had
before it a buffet of linguistic options from which to choose in deciding how to
separate the ACCA’s elements clause from its enumerated-offenses clause. By
selecting “or” rather than “and” from the limited menu of conjunctions available to it,
Congress merely expressed that an offense need not satisfy both the elements clause
and the enumerated-offenses clause to constitute a violent felony. See Taylor v.
United States, 495 U.S. 575, 597 (1990) (explaining that Congress intended for
ACCA’s enumerated offenses to constitute violent felonies “even though, considered
solely in terms of their statutory elements, they do not necessarily” satisfy elements
clause) (emphasis added)). In other words, if Congress had used “and” instead of
“or,” then an offense would have to satisfy both clauses before it would constitute an
ACCA predicate. And in that case, offenses the Supreme Court has identified as
quintessential violent felonies—such as murder, forcible rape, and assault with a
deadly weapon—wouldn’t qualify as ACCA predicates because they don’t satisfy the
enumerated-offenses clause; such crimes, after all, aren’t “burglary, arson, or
extortion, [or offenses that] involve[] use of explosives.” § 924(e)(2)(B)(ii); see also
Curtis Johnson v. United States, 559 U.S. 133, 140 (2010).
Thus, we reject Duran’s argument that Congress’s decision to use “or” rather
than “and” to separate the ACCA’s definitional clauses is indicative of Congress’s
intent to foreclose the kind of “[c]onjunctive [r]eliance” the district court engaged in
10 here. Aplt. Br. 18. Instead, we conclude that in drafting § 924(e)(2)(B), Congress
used “or” in its “‘inclusive’ sense (‘A or B [or both]’)” rather than in its “‘exclusive’
sense (‘A or B [but not both]’).”3 Shaw v. Nat’l Union Fire Ins. Co., 605 F.3d 1250,
1254 n.8 (11th Cir. 2010) (quoting Maurice B. Kirk, Legal Drafting: The Ambiguity
of “And” and “Or”, 2 Tex. Tech. L. Rev. 235, 237–38 (1971)). That is, by using “or”
rather than “and,” Congress intended only to express that an offense constitutes a
violent felony so long as it (1) satisfies the ACCA’s elements clause or (2) satisfies
the ACCA’s enumerated-offenses clause or (3) satisfies both the ACCA’s elements
clause and its enumerated-offenses clause.
Nothing about the approach the district court took here violates that intent.
Perhaps more importantly, nothing about that approach required the district court to
look beyond the statutory elements of Duran’s offenses to the facts underlying his
convictions. Cf. Descamps, 570 U.S. at 261 (“Sentencing courts may ‘look only to
the statutory definitions’—i.e., the elements—of a defendant’s prior offenses, and not
3 Duran asserts that because “or” can have multiple meanings, § 924(e)(2)(B) is ambiguous and we must interpret that ambiguity in his favor. See United States v. Santos, 553 U.S. 507, 514 (2008) (“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”). But Duran neglects to provide a “precise reference in the record where” this rule-of-lenity argument “was raised and ruled on” below. 10th Cir. R. 28.2(C)(2). And he likewise neglects to argue that the district court’s failure to apply the rule of lenity satisfies the plain-error test. Accordingly, we treat this argument as waived and decline to consider it. See United States v. Kearn, 863 F.3d 1299, 1313 (10th Cir. 2017), cert. denied, 138 S. Ct. 2025 (2018). Nevertheless, we note in passing that this argument would face an uphill battle even if it were properly before us. See United States v. Venturella, 391 F.3d 120, 133 (2d Cir. 2004) (“[W]e are confronted not with a grievous ambiguity in a statute but, rather, with a word susceptible to two meanings, one, which in context is absurd, and the other, which in context is consistent with . . . [c]ongressional expectations. The rule of lenity is inapplicable.”). 11 ‘to the particular facts underlying those convictions.’” (quoting Taylor, 495 U.S. at
600)). Instead, the district court’s approach went directly to the heart of the
appropriate inquiry: it asked whether, based solely on the elements of the offense,
any “conduct that would be a crime under [§ 791] would not be a violent felony
under the ACCA.” Titties, 852 F.3d at 1265. Accordingly, we conclude that in
determining whether robbery by fear remains a violent felony post-Johnson, the
district court permissibly divided the offense into two separate crimes and applied a
different ACCA clause to each.
But that doesn’t end our inquiry. According to Duran, one of those two
offenses doesn’t categorically constitute a violent felony. We turn to that argument
next.
II. Robbery by Fear of Injury to Property and Generic Extortion
In concluding that robbery by fear remains a violent felony post-Johnson, the
district court concluded that one of its two component parts—robbery by fear of
injury to property—is the equivalent of generic extortion. See Descamps, 570 U.S.
at 257 (explaining that crime categorically satisfies enumerated-offenses clause if
elements of statute defining that crime “are the same as, or narrower than” elements
of its generic counterpart). Duran advances two challenges to that conclusion. Both
are foreclosed by Castillo, 811 F.3d 342.
First, Duran asserts that robbery by fear of injury to property is broader than
generic extortion because, according to Duran, generic extortion requires proof of an
actual threat to cause injury to property, but robbery by fear of injury to property has
12 no such actual-threat requirement. Instead, Duran alleges, any “fear of injury to
property” will satisfy § 741, regardless of whether that fear is induced by an actual
threat or by some other means.4 Aplt. Br. 23.
In support, Duran cites Justice Scalia’s dissent in James v. United States, 550
U.S. 192 (2007), overruled by Johnson, 135 S. Ct. 2551, for the proposition that
generic extortion is “the obtaining of something of value from another, with his
consent, induced by the wrongful use or threatened use of force against the person or
property of another.” 550 U.S. at 223–24 (Scalia J., dissenting). But the majority in
James vociferously declined to adopt this definition. See id. at 209 (majority opinion)
(accusing dissent of “unnecessarily decid[ing] an important question that the parties
ha[d] not briefed (the meaning of the term ‘extortion’ in § 924(e)(2)(B)(ii))” and of
doing so “in a way that [was] hardly free from doubt”); id. at 210 (characterizing
dissent’s interpretation of “extortion” as “unnecessary . . . and inadvisable”; pointing
out that parties didn’t brief issue; and stating that dissent’s “proposed interpretation
[was] hardly beyond question” and “entirely novel”).
More importantly, we indicated in Castillo that the generic definition of
extortion “involves ‘obtaining something of value from another with his consent
induced by the wrongful use of force, fear, or threats.” 811 F.3d at 346 (emphasis
added) (quoting Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 409 (2003)).
4 We assume without deciding that Duran is correct in asserting § 741 isn’t restricted solely to fear induced by actual threats. Even with the benefit of that assumption, Duran’s argument fails; as we explain in the text, the same is true of generic extortion. 13 Thus, even if we assume that robbery by fear doesn’t require proof of an actual
threat, the same is true of generic extortion as we have previously defined that
offense. See id. Accordingly, under Castillo, this argument doesn’t provide us with a
basis for concluding that robbery by fear of injury to property is broader than generic
extortion.
Second, Duran points out that although the consent of the victim is an element
of generic extortion, it is not an element of robbery by fear. Compare id. (defining
extortion as “obtaining something of value from another with his consent induced by
the wrongful use of force, fear, or threats” (emphasis added) (quoting Scheidler, 537
U.S. at 409)), with § 791 (defining robbery, in relevant part, as “a wrongful taking of
personal property in the possession of another . . . and against his will, accomplished
by means of . . . fear” (emphasis added)).5 Thus, Duran asserts, § 741’s definition of
robbery by fear of injury to property covers a broader swath of criminal conduct than
does the definition of generic extortion. See Titties, 852 F.3d at 1266 (explaining that
when “‘statute [of conviction] sweeps more broadly’ than the ACCA definition . . .
then any ‘conviction under that law cannot count as an ACCA predicate’” (quoting
Descamps, 570 U.S. at 261)); United States v. Bercier, 192 F. Supp. 3d 1142, 1152
(E.D. Wash. 2016) (concluding that Washington second-degree robbery doesn’t
correspond with generic extortion because latter requires proof of victim’s consent
but former “criminalizes non-consensual takings”).
5 Indeed, as Duran correctly notes, this is precisely what distinguishes robbery from extortion under Oklahoma law. See Connard v. State, 35 P.2d 278, 279 (Okla. Crim. App. 1934). 14 This argument is also foreclosed by Castillo. There, the defendant asserted that
California robbery by fear of injury to property doesn’t correspond with generic
extortion because the former “requires a taking of property against the victim’s will,
whereas” the latter “requires a taking ‘with [the victim’s] consent.’” 811 F.3d at 348
(alteration in original) (quoting Brief for Appellant at 17, Castillo, 811 F.3d 342 (No.
14-4129), 2015 WL 401589, at *17). We rejected that argument, stating, “We see no
meaningful difference in this context between a taking of property accomplished
against the victim’s will and one where the victim’s consent is obtained through force
or threats.” Id. Critically, we were unable to discern any such “meaningful
difference” despite the fact that California—like Oklahoma—treats the victim’s
consent as the distinguishing characteristic between robbery and extortion. Id.; see
also Moretton v. Stanley E. (In re Stanley E.), 146 Cal. Rptr. 232, 234 (Cal. Ct. App.
1978) (“As can be seen from the statutes defining robbery and extortion, the two
crimes are distinguished by the fact that in extortion the property is taken with the
victim’s consent whereas in robbery it is taken against his will.”); id. (“[I]t is clear
that extortion is not necessarily included within the crime of robbery. Robbery can
occur without the consent of the victim, a necessary legal ingredient of the corpus
delicti of the offense of extortion.”).
We remain bound by Castillo to reject Duran’s consent argument. See United
States v. Mitchell, 518 F.3d 740, 752 n.14 (10th Cir. 2008). And because Duran
identifies no other basis upon which we might conclude that robbery by fear of injury
to property is broader than generic extortion, we hold that the former categorically
15 constitutes a violent felony under the enumerated-offenses clause. Thus, we decline
to address Duran’s assertion that we cannot apply the modified categorical approach
to resolve this appeal. Cf. Castillo, 811 F.3d at 349 n.2 (explaining that when offense
categorically constitutes crime of violence for purposes of § 2L1.2, “[a]pplication of
the modified categorical approach is . . . neither necessary nor . . . appropriate”).
Conclusion
The district court didn’t err when it divided robbery by fear into two separate
offenses—robbery by fear of injury to persons and robbery by fear of injury to
property—and applied a different ACCA clause to each. Nor did it err in determining
that robbery by fear of injury to property categorically corresponds to generic
extortion and thus satisfies the enumerated-offenses clause. Moreover, Duran doesn’t
dispute that robbery by fear of injury to persons satisfies the elements clause.
Accordingly, the district court correctly concluded that any Johnson error was
harmless and denied Duran’s § 2255 motion on that basis. We affirm.
Entered for the Court
Nancy L. Moritz Circuit Judge