United States v. Johnson

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 26, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. Nos. 17-6165 & 17-6195

DARIUS RASHAD JOHNSON,

Defendant - Appellant. _________________________________

Appeals from the United States District Court for the Western District of Oklahoma (D.C. Nos. 5:09-CR-00128-HE-1 & 5:16-CV-00344-HE) _________________________________

Kyle E. Wackenheim, Assistant Federal Public Defender, Oklahoma City, Oklahoma for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (Robert J. Troester, Acting United States Attorney, with him on the briefs), Oklahoma City, Oklahoma for Plaintiff-Appellee.

_________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges. _________________________________

BACHARACH, Circuit Judge. _________________________________

Federal sentences can be affected by a defendant’s classification as

an armed career criminal or a career offender. Both classifications underlie

these appeals, which grew out of the sentencing and resentencing of Mr. Darius Johnson for possessing cocaine with intent to distribute (21 U.S.C.

§ 841(a)(1)) and being a felon in possession of a firearm (18 U.S.C.

§ 922(g)).

For these offenses, the district court initially imposed concurrent

prison terms of 192 months, relying in part on Mr. Johnson’s classification

as an armed career criminal because of three prior convictions for violent

felonies. 1 The district court later vacated this sentence, concluding that one

of the three prior convictions had not involved a violent felony. Having

vacated the sentence, the court resentenced Mr. Johnson to concurrent

prison terms of 120 months and 128 months, relying in part on his

classification as a career offender because of two prior convictions for

crimes of violence.

The government appeals the vacatur of the initial sentence, and Mr.

Johnson appeals the new sentence. We affirm in both appeals.

1 The appellate record does not contain a transcript or recording of the sentencing hearing. But the probation office stated that at the initial sentencing, the district court had classified Mr. Johnson as an armed career criminal. To determine whether this statement is correct, we have taken judicial notice of the recording taken at the sentencing hearing. See United States v. Duong, 848 F.3d 928, 930 n.3 (10th Cir. 2017) (taking judicial notice of district court filings in a related case). The recording confirms that the district court classified Mr. Johnson as an armed career criminal under the Armed Career Criminal Act.

2 I. Mr. Johnson had three prior felony convictions, creating issues involving his status as an armed career criminal and a career offender.

Under the Armed Career Criminal Act, defendants are classified as

armed career criminals after being convicted of three violent felonies. 18

U.S.C. § 924(e)(1). When an armed career criminal is convicted of

unlawfully possessing a firearm (after a prior felony conviction), the Act

creates a mandatory minimum sentence of fifteen years’ imprisonment. Id.;

see 18 U.S.C. § 922(g)(1).

Under the federal sentencing guidelines, defendants are classified as

career offenders after two convictions for felonies constituting crimes of

violence. USSG § 4B1.1(a). This classification triggers enhancement of the

guideline range in future sentences. USSG § 4B1.1(b).

To determine whether Mr. Johnson was an armed career criminal and

a career offender, we must consider his three prior felony convictions in

Oklahoma:

1. use of a vehicle to facilitate the intentional discharge of a firearm

2. assault and battery with a dangerous weapon

3. assault and battery on a law enforcement officer

The three prior convictions present two issues:

1. Did the three prior convictions involve violent felonies, triggering classification as an armed career criminal?

3 2. Did two or more of the prior convictions involve crimes of violence, triggering classification as a career offender?

II. After sentencing Mr. Johnson as an armed career criminal, the district court ordered vacatur and resentencing based on a new Supreme Court opinion.

The first issue grew out of a new Supreme Court opinion invalidating

part of the Armed Career Criminal Act. Johnson v. United States, 135 S.

Ct. 2551, 2556–63 (2015). In light of this opinion, the district court

concluded that assault and battery on a law enforcement officer could no

longer constitute a violent felony, preventing application of the 15-year

mandatory minimum. But the court found that Mr. Johnson had prior

convictions in Oklahoma for two crimes of violence:

1. assault and battery with a dangerous weapon

2. use of a vehicle to facilitate the intentional discharge of a firearm

Given these convictions, the district court resentenced Mr. Johnson as a

career offender under the sentencing guidelines.

In his appeal, Mr. Johnson challenges his classification as a career

offender. He concedes one prior conviction for a crime of violence (assault

and battery with a dangerous weapon). But he denies that the use of a

vehicle to facilitate the intentional discharge of a firearm would constitute

a second crime of violence.

4 In its own appeal, the government contends that Mr. Johnson had

three convictions for violent felonies, triggering a mandatory minimum

sentence of fifteen years’ imprisonment for possessing a firearm after a

prior felony conviction. Mr. Johnson does not dispute the existence of two

prior convictions for violent felonies, but the government contends that he

had a third one: assault and battery on a law enforcement officer. Pointing

to this conviction, the government argues that Mr. Johnson qualifies as an

armed career criminal.

III. The government’s appeal: Battery on a law enforcement officer is not a violent felony, precluding application of the Armed Career Criminal Act’s 15-year mandatory minimum.

Mr. Johnson’s status as an armed career criminal turns on his past

conviction for assault and battery on a law enforcement officer. This

conviction had been based on Okla. Stat. tit. 21, § 649(B), which

criminalizes

• “battery” or “assault and battery” on a law enforcement officer

• while the officer was performing his or her duties.

Okla. Stat. tit. 21, § 649(B). We compare the state’s definition of this

crime to the Armed Career Criminal Act’s definition of a “violent felony.”

Under the Act, a prior crime could qualif y as a violent felony under the

Elements Clause, the Enumerated-Offense Clause, or the Residual Clause.

5 18 U.S.C. § 924(e)(2)(B). These clauses provide three alternative

definitions of a violent felony:

1. Elements Clause: An element of the offense includes the use, attempted use, or threatened use of physical force against another person. 18 U.S.C. § 924(e)(2)(B)(i).

2. Enumerated-Offense Clause: The offense is burglary, arson, extortion, or a crime involving the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii).

3. Residual Clause: The crime otherwise creates “a serious potential risk of physical injury to another.” Id.

The government concedes that in deciding on the initial sentence, the

district court had invoked the Residual Clause, which was later invalidated

as unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551,

2556–63 (2015). Given the invalidity of the Residual Clause, the

government concedes that the district court had erred in imposing the

initial sentence. Despite this concession, the government argues that the

error was harmless because § 649(B) qualifies as a violent felony under the

Elements Clause.

A crime may qualify as a violent felony under either the modified

categorical approach or the categorical approach. United States v. Titties,

852 F.3d 1257, 1265 (10th Cir. 2017). We conclude that the modified

categorical approach does not apply here because the statute of

conviction—§ 649(B)—is indivisible. We thus conclude that

6 • a conviction under § 649(B) does not fall within the Armed Career Criminal Act’s Elements Clause and

• Mr. Johnson was not an armed career criminal subject to the 15-year mandatory minimum.

A. Standard of Review

The government bears the burden of demonstrating harmlessness of

the constitutional error in the initial sentence. United States v. Lewis, 904

F.3d 867, 872 (10th Cir. 2018). To satisfy this burden, the government

must show that Mr. Johnson would have qualified as an armed career

criminal even without reliance on the Residual Clause. Id. at 873.

B. The Modified Categorical Approach and Divisibility

The government urges us to apply the modified categorical approach

and treat the conviction under § 649(B) as a violent felony under the

Elements Clause. Under the modified categorical approach, we consider a

limited class of documents to determine whether a crime necessarily

includes elements that would constitute a violent felony. Shepard v. United

States, 544 U.S. 13, 26 (2005). If these documents show that a violation of

§ 649(B) would necessarily qualif y as a violent felony, the crime would

constitute a violent felony under the modified categorical approach. United

States v. Degeare, 884 F.3d 1241, 1245 (10th Cir. 2018).

But the modified categorical approach can be used only if the statute

of conviction is divisible. Descamps v. United States, 570 U.S. 254, 263–

7 64 (2013); see also p. 19, below. And a statute is divisible only if it lists

elements in the alternative, effectively defining separate crimes. Mathis v.

United States, 136 S. Ct. 2243, 2249 (2016). Even when a statute contains

alternatives, it is considered indivisible if the alternatives constitute means

rather than elements. Id. “‘Elements’ are the parts of a statute that the

prosecution must prove; ‘means’ are alternative factual methods of

committing a single element.” United States v. Hamilton, 889 F.3d 688,

692 (10th Cir. 2018). A statute containing alternatives is divisible only if

we are certain that the alternatives are elements rather than means. United

States v. Degeare, 884 F.3d 1241, 1248 (10th Cir. 2018).

As the government points out, § 649(B) does contain two

alternatives:

1. Battery on a law enforcement officer and

2. Assault and Battery on a law enforcement officer.

Do these alternatives constitute two separate crimes, with separate sets of

elements? Or are they simply different means of committing a single

crime?

To decide whether the alternatives constitute elements or means, we

may consider three sources:

1. state-court opinions

2. the text of the statute

8 3. the record of conviction

Mathis, 136 S. Ct. at 2248–49. Each source may definitively show whether

a statutory alternative constitutes elements or means. Id. at 2256. If none

are definitive, however, the statute must be treated as indivisible.

Hamilton, 889 F.3d at 692.

The government contends that “battery” and “assault and battery” are

alternative elements, making § 649(B) divisible. But we cannot derive

certainty from the pertinent state-court opinions, the text of the statute, or

the record of conviction. 2 We therefore consider the statute indivisible,

preventing application of the modified categorical approach. See id.

1. Oklahoma Opinions

The government contends that

• Oklahoma opinions classif y “battery” and “assault and battery” as separate convictable offenses and

• Oklahoma’s uniform jury instructions treat “battery” and “assault and battery” as alternative elements.

The government relies partly on Avants v. State, 660 P.2d 1051

(Okla. Crim. App. 1983). In Avants, the court addressed Okla. Stat. tit. 21,

2 The district court relied on a brief reference to the Elements Clause in United States v. Smith, 652 F.3d 1244 (10th Cir. 2011). But in Smith, we did not consider whether § 649(B) was subject to the modified categorical approach. 652 F.3d at 1247. We had instead based our holding on the Residual Clause, which the Supreme Court later struck down as unconstitutionally vague. Id.

9 § 652, which governed assault and battery when committed with a deadly

weapon, through means likely to cause death, or in an attempt to kill. See

Avants, 660 P.2d at 1051–52. In addressing the scope of the law, the court

referred to § 645, which covers “assault, battery, or assault and battery.”

Id. at 1052. The court observed that in § 645, assault is considered a

“separate convictable offense.” Id. This observation does not definitively

resolve our issue because of (1) the statutory differences between § 645

and § 649(B) and (2) the court’s conception of “battery.”

The Avants court considered a different Oklahoma statute (§ 645), so

its decision does not bind us in considering § 649(B). And even though

§ 645 bears some similarities to § 649(B), the two sections also contain

differences. Section 645’s first alternative contains three alternative

elements: “[1] assault, [2] battery, or [3] assault and battery.” Okla. Stat.

tit. 21, § 645. In § 649(B), only two alternatives exist: (1) battery and (2)

assault and battery. Okla. Stat. tit. 21, § 649(B). Given these differences

between § 645 and § 649(B), the discussion in Avants does not definitively

tell us whether the alternatives in § 649(B) constitute elements or means.

See Jimenez v. Sessions, 893 F.3d 704, 714–15 (10th Cir. 2018)

(concluding that dicta in two state appellate opinions did not definitively

resolve whether the alternatives constituted elements or means).

10 The Avants court also appeared to suggest that “battery” and “assault

and battery” are the same crime rather than different crimes with distinct

sets of elements. In Avants, the court stated that (1) every battery includes

an assault and (2) an assault and battery takes place when the assault

“culminates in a battery.” Avants, 660 P.2d at 1052. Because every battery

includes an assault, the court concluded that all battery convictions

necessarily involve both an assault and a battery. Id. Avants thus suggests

that “battery” and “assault and battery” are the same crime rather than

different crimes with different elements.

Given the statutory differences and the court’s conception of

“battery,” Avants does not resolve with certainty whether “battery” and

“assault and battery” are elements or means. Given this uncertainty, the

government points to Oklahoma’s uniform jury instructions, arguing that

they treat “battery” and “assault and battery” as alternative elements rather

than means. “Like Oklahoma case law, the Oklahoma uniform jury

instructions provide useful guidance on the content of state law.” United

States v. Hamilton, 889 F.3d 688, 693 (10th Cir. 2018).

For prosecutions involving § 649, the uniform jury instructions list

five elements:

First, (an assault)/(a battery)/(an assault and battery);

Second, upon a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer);

11 Third, known by defendant(s) to be a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer);

Fourth, without justifiable or excusable cause;

Fifth, committed while the (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer) was in the performance of his/her duties as a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer).

Okla. Unif. Jury Instr. CR 4-16 (emphases in original). The first element

contains three alternatives—(1) assault, (2) battery, and (3) assault and

battery—separated by slashes.

An introduction to the instructions states that “[s]lashes are used . . .

to indicate that the judge should select all alternatives that are supported

by the evidence.” Okla. Unif. Jury Instr. CR Cross Reference; see Runnels

v. State, 496 P.3d 614, 619 (Okla. Crim. App. 2018) (“The slash symbol is

intended to cause the trial court to elect the alternative(s) which most

accurately fits the case at trial.”). The provision adds that “[i]n some

cases, there may have been evidence offered for more than one alternative,

and if so, the trial judge should include them in the disjunctive.” Okla.

Unif. Jury Instr. CR Cross Reference.

“Battery” and “assault and battery” are bunched into the first element

and separated by slashes. When supported by the evidence, the judge could

instruct the jury on both “battery” and “assault and battery.” Thus, the

12 bunching of alternatives into a single element could suggest that these

alternatives serve only as different means to satisf y a single element. See

United States v. Hamilton, 889 F.3d 688, 694–95 (10th Cir. 2018)

(classif ying statutory alternatives, which were separated by slashes in the

Oklahoma uniform jury instructions, as alternative means); see also United

States v. Titties, 852 F.3d 1257, 1271 (10th Cir. 2017) (stating that an

Oklahoma uniform jury instruction supported classification as means,

rather than elements, because the alternatives had been bunched into a

single element).

As the government points out, however, one of the three alternatives

in the first element is “assault.” Okla. Unif. Jury Instr. CR 4-16. And

assault on a law enforcement officer constitutes a separate crime because it

triggers a milder punishment than if the conduct had constituted (1) a

battery or (2) an assault and battery. Compare Okla. Stat. tit. 21, § 649(A),

with tit. 21, § 649(B); see Mathis v. United States, 136 S. Ct. 2243, 2256

(2016) (stating that if statutory alternatives entail different punishments,

the alternatives constitute elements rather than means). Because assault on

a law enforcement officer constitutes a separate crime, the government

contends that the other two alternatives (“battery” and “assault and

battery”) must also constitute separate crimes. But this conclusion does not

necessarily follow.

13 The government’s contention assumes that if one of the three

alternatives is a separate crime, the other two alternatives must also be

separate crimes. A contrary interpretation of the uniform jury instructions

is also reasonable: one alternative (“assault”) is a separate crime, while the

other two alternatives (“battery” and “assault and battery”) are separate

means of committing the same crime. This interpretation would match the

structure of § 649, which criminalizes “assault” on a law enforcement

officer in subsection A and “battery or assault and battery” on a law

enforcement officer in subsection B. Given the reasonableness of this

interpretation, classifying assault as a separate crime does not necessarily

mean that the other two alternatives (“battery” and “assault and battery”)

must be separate crimes.

** *

Oklahoma’s opinions and uniform jury instructions do not show with

certainty whether the statutory alternatives constitute elements or means.

We must therefore continue with our inquiry on divisibility. See Mathis v.

United States, 136 S. Ct. 2243, 2256 (2016) (noting that “if state law fails

to provide clear answers,” courts should continue with the analysis,

considering the statutory text and the record of conviction).

14 2. The Text of the Statute

This inquiry proceeds with the statutory text. United States v.

Hamilton, 889 F.3d 688, 696 (10th Cir. 2018). The version of § 649(B) in

effect at the time of conviction provided:

Every person who, without justifiable or excusable cause knowingly commits battery or assault and battery upon the person of a police officer, sheriff, deputy sheriff, highwa y patrolman, corrections personnel, or other state peace officer employed or duly appointed by any state governmental agency to enforce state laws while said officer is in the performance of his duties, upon conviction, shall be guilty of a felony punishable by imprisonment of not more than five (5) years in a state correctional institution or county jail for a period not to exceed one (1) year, or by a fine not exceeding Five Hundred Dollars ($500.00), or by both such fine and imprisonment.

Okla. Stat. tit. 21, § 649(B) (1999). 3. This text is ambiguous because it

criminalizes “battery” or “assault and battery” without stating whether

these are distinct sets of elements or simply different means of committing

a single crime.

The government points to two opinions—United States v. Taylor, 843

F.3d 1215 (10th Cir. 2016), and United States v. Mitchell, 653 Fed. App’x

639 (10th Cir. 2016)—where we regarded other statutory language as

divisible. But these opinions do not establish with certainty that § 649(B)

is divisible.

3 Oklahoma later adopted minor revisions to the statutory text.

15 Both discuss a single Oklahoma statute, Okla. Stat. tit. 21, § 645,

which criminalizes assault, battery, and assault and battery with a sharp or

dangerous weapon:

Person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault, battery, or assault and battery upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots at another, with any kind of firearm, air gun, conductive energ y weapon or other means whatever, with intent to injure any person, although without the intent to kill such person or to commit any felony, upon conviction is guilty of a felon y punishable by imprisonment in the State Penitentiary not exceeding ten (10) years, or by imprisonment in a county jail not exceeding one (1) year.

Okla. Stat. tit. 21, § 645.

Taylor and Mitchell concluded that § 645 is divisible because it

contains alternative elements:

1. “assault, battery, or assault and battery” with a “sharp or dangerous weapon”

2. “shoot[ing] at another” with a gun or similar means

Taylor, 843 F.3d at 1222; Mitchell, 653 F. App’x at 643. Because § 645

contains alternative elements, Taylor and Mitchell regarded the statute as

divisible, triggering the modified categorical approach. Taylor, 843 F.3d at

1221–23; Mitchell, 653 F. App’x at 642–43. In applying this approach, the

court observed that the first alternative element contained two sub-

1. “assault, battery, or assault and battery”

16 2. with “a sharp or dangerous weapon.”

Taylor, 843 F.3d at 1222 (emphasis in original); Mitchell, 653 F. App’x at

643 (emphasis in original).

The government focuses on this observation in Taylor and Mitchell,

arguing that (1) these opinions treated “assault, battery, or assault and

battery” as “sub-alternative” elements and (2) as a result, “battery” and

“assault and battery” must also constitute alternative elements. Mitchell is

unpublished, so it is not binding. Tenth Cir. R. 32.1(A). And Taylor didn’t

specif y whether the alternatives in the first element (assault, battery, and

assault and battery) constituted separate elements or means. Instead, the

court held only that together, the three sub-alternatives constituted a single

element. 843 F.3d at 1222.

In applying the modified categorical approach, Taylor focused on a

second distinct element, consisting of either (1) a sharp weapon or (2) a

dangerous weapon. Id. at 1223. Given the existence of these alternative

sub-elements, the court reviewed the charging document and learned that

the defendant had been charged with using a dangerous weapon to inflict

both (1) an assault and (2) a battery. Id. at 1223. The use of a dangerous

weapon proved decisive: when coupled with either an assault or a battery,

the use of a dangerous weapon would constitute a violent felony. Id. at

17 1223-24. So the court had no need to decide whether assault, battery, or

assault and battery constituted separate elements or means.

The text of § 649(B) does not establish with certainty whether the

statutory alternatives (“battery” and “assault and battery”) constitute

elements or means. So we cannot determine whether § 649(B) is divisible

based on the statutory text alone. We therefore peek at the record of Mr.

Johnson’s prior conviction to determine whether the statutory alternatives

in § 649(B) constitute elements or means. Mathis v. United States, 136

S. Ct. 2243, 2256–57 (2016).

3. The Record of Conviction

The government contends that this peek shows that the alternatives

constitute elements. We are not so sure.

Mr. Johnson was charged with “assault and battery upon a police or

other law officer.” Supp. R., vol. 1 at 44. According to the government,

this charge means that the alternatives constitute elements because the

charging document would have otherwise encompassed both alternatives

(“battery” and “assault and battery”).

But under Oklahoma law, the charging documents had to include not

just the elements of a crime but also enough facts to enable a defendant to

prepare for trial. Ross v. State, 147 P.2d 797, 799 (Okla. Crim. App. 1944).

18 So the prosecutor’s decision to charge “assault and battery” (rather than

“battery” or “assault and battery”) does not necessarily mean that the

alternatives constitute elements. See United States v. Hamilton, 889 F.3d

688, 698 (10th Cir. 2018) (stating that reference to a single statutory

alternative in an Oklahoma charging document did not mean that the

statutory alternatives constituted elements). So a peek at the record does

not clarif y whether the alternatives in § 649(B) constitute elements or

means.

Oklahoma opinions, the text of § 649(B), and the record of

conviction do not establish with certainty whether the statutory alternatives

constitute elements or means. This uncertainty requires us to treat § 649(B)

as indivisible. Because § 649(B) is indivisible, we cannot apply the

modified categorical approach to determine whether Mr. Johnson’s

conviction under § 649(B) involved a violent felony. See Mathis v. United

States, 136 S. Ct. 2243, 2256 (2016) (stating that if statutory alternatives

constitute means, the court cannot apply the modified categorical

approach); see also pp. 7–8, above.

C. Categorical Approach

Given the unavailability of the modified categorical approach, we

apply the categorical approach to decide whether a violation of § 649(B)

19 constituted a violent felony. United States v. Hammons, 862 F.3d 1052,

1054 (10th Cir. 2017). In applying the categorical approach, we focus on

the elements of the crime rather than the specifics of the defendant’s

conduct. United States v. Titties, 852 F.3d 1257, 1265 (10th Cir. 2017). A

crime is categorically a violent felony only if the crime has as an element

the “use, attempted use, or threatened use of physical force against another

person.” 18 U.S.C. § 924(e)(2)(B)(i); see United States v. Pam, 867 F.3d

1191, 1203 (10th Cir. 2017). The term “physical force” refers to “violent

force—that is, force capable of causing physical pain or injury to another

person.” Johnson v. United States, 559 U.S. 133, 140 (2010).

Under the categorical approach, we consider whether the elements of

§ 649(B) would require the use of violent force. See Pam, 867 F.3d at

1203. Section 649(B) can be violated in two different ways:

1. Battery on a law enforcement officer

2. Assault and Battery on a law enforcement officer

Okla. Stat. tit. 21, § 649(B). A conviction would require violent force only

if both statutory alternatives necessarily require violent force.

The government argues that both a “battery” and an “assault and

battery” would constitute a violent felony. For this argument, we may

assume (for the sake of argument) that assault and battery constitutes a

violent felony. Given this assumption, we must determine whether a

20 battery alone would constitute a violent felony. We conclude that it would

not.

Oklahoma’s crime of battery does not require violent force capable

of causing physical pain or injury because this crime can be committed

with only the slightest touching. Steele v. State, 778 P.2d 929, 931 (Okla.

Crim. App. 1989) 4; see United States v. Smith, 652 F.3d 1244, 1247 (10th

Cir. 2011) (“[U]nder Oklahoma law, mere offensive touching satisfies the

requirement for force in a battery.”). As a result, battery on a law

enforcement officer does not constitute a violent felony. See Smith, 652

F.3d at 1246–47 (stating that an Oklahoma statute, which criminalizes a

juvenile’s battery against an employee of the state’s Office of Juvenile

Affairs, “clearly” reaches conduct falling outside the Armed Career

Criminals Act’s Elements Clause). In these circumstances, the district

court properly concluded that the conviction under § 649(B) did not

involve a violent felony.

4 In a footnote, the government suggests that recent opinions may have cast doubt on Steele: “Recent decisions interpreting the [Armed Career Criminal Act’s] elements clause suggest Steele’s statement may not even foreclose the use of felony battery as an [Armed Career Criminal Act] predicate.” Gov’t’s Second Br. on Cross-App. at 30 n.6. This suggestion in a footnote does not adequately develop an argument that Steele has been superseded by more recent Oklahoma opinions. See United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) (en banc) (“Arguments raised in a perfunctory manner, such as in a footnote, are waived.”).

21 ** *

We conclude that (1) the district court’s error in the initial sentence

was not harmless and (2) the court properly vacated that sentence.

After considering Okla. Stat. tit. 21, § 649(B), we lack certainty over

whether the alternatives constitute elements. So we regard the statute as

indivisible, precluding use of the modified categorical approach. Absent

this approach, Mr. Johnson’s conviction could have been based on battery

alone, which would have required only the slightest touching. So the

conviction under Okla. Stat. tit. 21, § 649(B) did not involve a violent

felony under the Elements Clause. We therefore affirm in the government’s

appeal.

IV. Mr. Johnson’s appeal: The use of a vehicle to facilitate the intentional discharge of a firearm was a crime of violence, triggering enhancement of the guideline range.

In his own appeal, Mr. Johnson challenges the new sentence,

contending that the use of a vehicle to facilitate the intentional discharge

of a firearm is not a crime of violence. 5 But Mr. Johnson concedes that this

challenge is foreclosed under United States v. Hammons, 862 F.3d 1052

(10th Cir. 2017). See Appellant’s Opening Br. at 14 (acknowledging that

5 Prior to the initial sentence, the probation office recommended classification of this crime as a crime of violence, and Mr. Johnson did not object. At the initial sentencing hearing, however, the district court did not say whether it regarded this crime as a crime of violence. See note 1, above (taking judicial notice of the recording of the initial sentencing hearing).

22 “this Court is currently bound by Hammons”). We agree with this

concession.

In Hammons, we held that an Oklahoma conviction for the use of a

vehicle to facilitate the intentional discharge of a firearm qualifies as a

violent felony, triggering classification as an armed career criminal. 862

F.3d at 1057. Our panel is bound by Hammons. See Bates v. Dep’t of

Corrs., 81 F.3d 1008, 1011 (10th Cir. 1996).

The only issue remaining under Hammons is whether to draw a

different conclusion for classification as a career offender. In Hammons,

we applied the definition for a “violent felony,” which is “virtually

identical” to the definition of a “crime of violence.” Id.; see United States

v. Wray, 776 F.3d 1182, 1184–85 (10th Cir. 2015) (stating that these

definitions are “virtually identical”). In determining what constitutes a

crime of violence, “we may [therefore] look for guidance to cases”

interpreting the virtually identical definition of a “violent felony.” United

States v. Wise, 597 F.3d 1141, 1145 (10th Cir. 2010).

With guidance from Hammons, we classif y this crime (using a

vehicle in Oklahoma to facilitate the intentional discharge of a firearm) as

a crime of violence, triggering enhancement of the guideline range. We

therefore reject Mr. Johnson’s challenge to the new sentence and affirm in

his appeal.

23 V. Conclusion

We affirm in the government’s appeal. When imposing the initial

sentence, the district court classified Mr. Johnson as an armed career

criminal because he had three prior convictions for violent felonies. The

government concedes that this classification was erroneous because the

district court had relied on the Residual Clause, which the Supreme Court

later struck down as unconstitutional. This constitutional error was not

harmless because one of the three prior convictions could have been based

on battery of a law enforcement officer, which does not constitute a violent

felony. Given this possibility, the district court needed to vacate the initial

sentence; we therefore affirm the vacatur of Mr. Johnson’s initial sentence.

We also affirm in Mr. Johnson’s appeal. Mr. Johnson’s conviction for

using a vehicle to facilitate the discharge of a firearm (Okla. Stat. tit. 21,

652(B)) constitutes a crime of violence. Given the concession of another

crime of violence, the district court did not err in sentencing Mr. Johnson

as a career criminal under the sentencing guidelines. We therefore affirm

Mr. Johnson’s new sentence.