United States v. Taylor

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH December 12, 2016
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 16-7028
TOMMY LOUIS TAYLOR, a/k/a
Tommy Lewis Taylor, a/k/a Tommy
Taylor, Jr.,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 6:14-CR-00042-RAW-1)

Barry L. Derryberry, Research & Writing Specialist (Julia L. O’Connell, Federal
Public Defender, and Scott A Graham, Assistant Federal Public Defender, with
him on the brief), Office of the Federal Public Defender, Tulsa, Oklahoma, for
Defendant-Appellant.

Linda A. Epperly, Assistant United States Attorney (Mark F. Green, United States
Attorney, and Edward Snow, Assistant United States Attorney, with her on the
brief), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-
Appellee.

Before BRISCOE, EBEL and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.
 Defendant Tommy Taylor was convicted by a jury of being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (2), and was

sentenced to 110 months’ imprisonment. On direct appeal, this court remanded

for resentencing because Taylor’s sentence was based in part on the application of

the residual clause of U.S.S.G. § 4B1.2(a)(2), which has been held to be

unconstitutionally vague. On remand, the district court sentenced Taylor to a

term of imprisonment of 87 months. Taylor again appeals, arguing that the

district court incorrectly calculated his base and total offense levels by improperly

treating a prior state conviction as a “crime of violence” pursuant to U.S.S.G. §§

4B1.2(a)(1) and 2K2.1(a)(4)(A). Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we reject Taylor’s arguments and affirm his sentence.

I

In August 2014, Taylor was convicted by a jury of one count of being a

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (2).

The district court sentenced Taylor to a term of imprisonment of 110 months, to

be followed by a three-year term of supervised release. In doing so, the district

court concluded that Taylor “ha[d] two prior [Oklahoma state] felony

convictions,” one for assault and battery with a dangerous weapon and the other

for failure to stop at a roadblock, that qualified as “crimes of violence” under

U.S.S.G. § 4B1.2(a) and that warranted an enhanced base offense level under

U.S.S.G. § 2K2.1(a)(2). ROA, Vol. 3 at 5.

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 Taylor filed a direct appeal challenging the district court’s treatment of his

prior conviction for failure to stop at a roadblock as a “crime of violence” under

U.S.S.G. § 4B1.2(a)(2)’s residual clause. While Taylor’s direct appeal was

pending, we held § 4B1.2(a)(2)’s residual clause to be unconstitutionally vague in

light of the Supreme Court’s decision in Johnson v. United States, — U.S. —, 135

S. Ct. 2551 (2015) (holding that the definition of “violent felony” contained in the

Armed Career Criminal Act’s residual clause was unconstitutionally vague).

United States v. Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015). When we

considered Taylor’s appeal, we applied that holding to his case, see Griffith v.

Kentucky, 479 U.S. 314, 328 (1987) (holding “that a new rule for the conduct of

criminal prosecutions is to be applied retroactively to all cases . . . pending on

direct review or not yet final”), and remanded to the district court with directions

to vacate Taylor’s sentence and resentence him. United States v. Taylor, 630 F.

App’x 879, 881 (10th Cir. 2015) (Taylor I).

On remand, a revised presentence investigation report (PSR) was prepared

and submitted to the district court and parties. The revised PSR set forth a base

offense level of 20 pursuant to U.S.S.G. § 2K2.1, noting that Taylor “ha[d] one

prior felony conviction for a crime of violence . . . : Assault and Battery with a

Dangerous Weapon in Muskogee County District Court.” ROA, Vol. 3 at 109

(revised PSR at 3). The revised PSR concluded that no other adjustments were

necessary to the base offense level, and consequently arrived at a total offense

3
level of 20. When combined with a criminal history score of 17 and a criminal

history category of VI, Taylor’s advisory Guidelines sentencing range was 70 to

87 months. Id. at 117 (revised PSR at 11).

Neither party objected to the revised PSR, and the district court adopted the

sentencing calculations contained therein. ROA, Vol. 4 at 12. The district court

in turn resentenced Taylor to a term of imprisonment of 87 months, to be

followed by a three-year term of supervised release. Id. at 14.

Following the entry of final judgment, Taylor filed a timely notice of

appeal.

II

On appeal, Taylor argues that the district court erred in treating his prior

Oklahoma state conviction for assault and battery with a dangerous weapon as a

“crime of violence” under U.S.S.G. §4B1.2(a)(1) and imposing “an elevated base

offense level pursuant to [U.S.S.G.] § 2K2.1(a)(4)(A).” Aplt. Br. at 8.

A

Generally speaking, we review for abuse of discretion a defendant’s

challenges to the procedural reasonableness of his sentence. Gall v. United

States, 552 U.S. 38, 46 (2007); United States v. Worku, 800 F.3d 1195, 1201

(10th Cir. 2015). If, however, the issue is raised for the first time on appeal, we

review it only for plain error. United States v. McComb, 519 F.3d 1049, 1054

(10th Cir. 2007).

4
 Taylor argues that the abuse of discretion standard should apply in this

appeal because he objected to the original PSR—the one that was issued prior to

his original sentencing—“on the ground that his prior [state] conviction for

assault and battery with a dangerous weapon was not a qualifying predicate

conviction.” Aplt. Br. at 8. Although Taylor concedes that he did not object to

the revised PSR that was prepared on remand, he argues that “[a] second

objection was not necessary to preserve the issue for review.” Id. According to

Taylor, the district court was aware of his position given his objection to the

original PSR and further objection would have been futile.

We reject Taylor’s arguments on this point. As noted, the original PSR

treated two of Taylor’s prior state convictions as “crimes of violence” under

U.S.S.G. § 4B1.2 and, consequently, imposed a base offense level of 24 pursuant

to U.S.S.G. § 2K2.1(a)(2). ROA, Vol. 3 at 5. Taylor filed a one-page objection

to the original PSR stating he was “not convinced that the convictions that [we]re

alleged to be crimes of violence . . . me[t] the definitions of USSG Section 4 B1.2

[sic] or by way of the categorical or modified categorical approach.” Id. at 15.

The district court, however, overruled this objection at the time of sentencing.

ROA, Vol. 2 at 14. We concluded on appeal that one of Taylor’s prior state

convictions—for failure to stop at a roadblock—should not have been treated as a

“crime of violence” under U.S.S.G. § 4B1.2(a)(2)’s residual clause. Taylor I, 630

F. App’x at 879. On remand, the revised PSR treated only Taylor’s remaining

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state conviction—for assault and battery with a dangerous weapon—as a “crime

of violence” and, in turn, imposed a base offense level of 20. Taylor filed no

written objection to the revised PSR. And, at the resentencing hearing, Taylor’s

counsel expressly stated on the record that he had no objections to the revised

PSR. ROA, Vol. 4 at 12. Consequently, Taylor failed to alert the district court to

the error that he now complains of on appeal. For this reason, we conclude that

we are bound to apply the plain error standard to this appeal.

In reviewing for plain error, we have “discretion to remedy a forfeited error

provided certain conditions are met.” Molina-Martinez v. United States, 136 S.

Ct. 1338, 1343 (2016). The defendant must establish (1) the existence of “an

error that has not been intentionally relinquished or abandoned,” (2) “the error

must be plain—that is to say, clear or obvious,” and (3) “the error . . . have

affected the defendant’s substantial rights.” Id. “Once these three conditions

have been met,” we must “exercise [our] discretion to correct the forfeited error if

the error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. (quotation marks omitted).

B

Section 4B1.2(a)(1) of the United States Sentencing Guidelines, sometimes

referred to as the “elements clause” of § 4B1.2(a), provides as follows:

(a) The term “crime of violence” means any offense under federal or
state law, punishable by imprisonment for a term exceeding one year,
that—

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 (1) has as an element the use, attempted use, or threatened use
of physical force against the person of another . . . .

U.S.S.G. § 4B1.2(a)(1). To determine whether a prior conviction fits within the

elements clause, “we use one of two methods of analysis: the categorical or

modified categorical approach.” Madrid, 805 F.3d at 1207. The categorical

approach focuses solely on “the elements of the statute forming the basis of the

defendant’s conviction.” Descamps v. United States, — U.S. —, 133 S. Ct. 2276,

2281 (2013). “[T]he modified categorical approach applies when the statute is

‘divisible’; that is, when it ‘lists multiple, alternative elements, and so effectively

creates several different crimes.’” Madrid, 805 F.3d at 1207 (quoting Descamps,

133 S. Ct. at 2285). “[T]he modified categorical approach permits sentencing

courts to consult a limited class of documents, such as indictments and jury

instructions, to determine which alternative formed the basis of the defendant’s

prior conviction.” Descamps, 133 S. Ct. at 2281.

It is undisputed that Taylor was previously convicted in Oklahoma state

court of assault and battery with a dangerous weapon, in violation of Okla. Stat.

tit. 21, § 645. See ROA, Vol. 3 at 5. At the time of Taylor’s conviction, that

statute provided as follows:

Every 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 or air gun or other means whatever, with
intent to injure any person, although without the intent to kill such

7
 person or to commit any felony, upon conviction is guilty of a felony
punishable by imprisonment in the penitentiary not exceeding ten
(10) years, or by imprisonment in a county jail not exceeding one (1)
year.

Okla. Stat. tit. 21, § 645 (1991).

The revised PSR, which was adopted by the district court at resentencing

without objection by either party, treated Taylor’s prior Oklahoma state

conviction for assault and battery with a dangerous weapon as a “crime of

violence” pursuant to U.S.S.G. § 4B1.2(a). ROA, Vol. 3 at 109. In doing so, the

revised PSR did not expressly cite to § 4B1.2(a)(1)’s elements clause. Nor did

the district court at resentencing specify that it was relying on the elements

clause. Because, however, the elements clause was the only logical basis for

treating the conviction as a “crime of violence,” we presume, as does Taylor, that

this was the basis for the district court’s conclusion. 1

C

Taylor’s appellate challenge to the district court’s treatment of his prior

conviction as a “crime of violence” hinges in large part on the Supreme Court’s

recent decision in Mathis v. United States, — U.S. —, 136 S. Ct. 2243 (2016).

The petitioner in that case, Richard Mathis, “pleaded guilty to being a felon in

possession of a firearm” in violation of 18 U.S.C. § 922(g). 136 S. Ct. at 2250.

1
Taylor’s prior conviction was not for one of the offenses specifically
enumerated in U.S.S.G. § 4B1.2(a)(2). Further, in light of our decision in Taylor
I, the district court was effectively prohibited from treating Taylor’s prior
conviction under § 4B1.2(a)(2)’s residual clause.

8
“At sentencing, the Government asked the District Court to impose [the Armed

Career Criminal Act’s (ACCA’s)] 15-year minimum penalty based on Mathis’s

five prior convictions for burglary under Iowa law.” Id. Notably, “Iowa’s

burglary statute . . . covers more conduct than generic burglary,” and can be

violated by unlawful entry not only into a structure, but also into a “‘land, water,

or air vehicle.’” Id. (quoting Iowa Code § 702.12 (2013)). In other words,

Iowa’s burglary statute “defines one crime, with one set of elements, broader than

generic burglary—while specifying multiple means of fulfilling its locational

element, some but not all of which (i.e., buildings and other structures, but not

vehicles) satisfy the generic definition.” Id. The district court in Mathis’s case

“imposed an ACCA enhancement on Mathis after inspecting the records of his

prior convictions and determining that he had burgled structures, rather than

vehicles.” Id. The Eighth Circuit affirmed, Mathis filed a petition for writ of

certiorari, and the Supreme Court granted the petition and reversed.

In doing so, the Court began by reiterating that in determining “whether a

prior conviction is for generic burglary (or other listed crime [in the ACCA])

courts apply what is known as the categorical approach: They focus solely on

whether the elements of the crime of conviction sufficiently match the elements

of generic burglary, while ignoring the particular facts of the case.” Id. at 2248.

“Some statutes,” the Court noted, “have a more complicated (sometimes called

‘divisible’) structure, making the comparison of elements harder.” Id. at 2249. In

9
particular, the Court noted, the Iowa statute at issue before it “enumerate[d]

various factual means of committing a single element.” Id. More specifically,

Iowa’s burglary statute “itemize[d] the various places that crime could occur as

disjunctive factual scenarios rather than separate elements, so that a jury need not

make any specific findings (or a defendant admissions) on that score.” Id.

The Court in turn noted that the precise issue before it was “whether ACCA

treats this kind of statute as it does all others, imposing a sentence enhancement

only if the state crime’s elements correspond to those of a generic offense—or

instead whether the Act makes an exception for such a law, so that a sentence can

be enhanced when only one of the statute’s specified means creates a match with

the generic offense, even though the broader element would not.” Id. at 2250.

The Court held “that a state crime cannot qualify as an ACCA predicate if its

elements are broader than those of a listed generic offense.” Id. at 2251. “How a

given defendant actually perpetrated the crime,” the Court explained, “makes no

difference; even if his conduct fits within the generic offense, the mismatch of

elements saves the defendant from an ACCA sentence.” Id. The fact that the

statute of conviction “specifies alternative possible means of commission,” the

Court held, “gives a sentencing court no special warrant to explore the facts of an

offense, rather than to determine the crime’s elements and compare them with the

generic definition.” Id. And, the Court emphasized, the only use of the modified

categorical approach it has ever allowed “is to determine ‘which element[s]

10
played a part in the defendant’s conviction.’” Id. at 2253 (quoting Descamps v.

United States, 570 U.S. at —, 133 S. Ct. 2276, 2283, 2285 (2013) (emphasis

added)). “In other words,” the Court stated, “the modified approach serves—and

serves solely—as a tool to identify the elements of the crime of conviction when a

statute’s disjunctive phrasing renders one (or more) of them opaque.” Id. “It is

not to be repurposed as a technique for discovering whether a defendant’s prior

conviction, even though for a too-broad crime, rested on facts (or otherwise said,

involved means) that also could have satisfied the elements of a generic offense.”

Id.

As for Mathis, the Supreme Court noted that “the elements of [his] crime of

conviction (Iowa burglary) cover[ed] a greater swath of conduct than the elements

of the relevant ACCA offense (generic burglary).” Id. at 2251. “[T]hat

undisputed disparity,” the Court held, “resolve[d] the case” in Mathis’s favor. Id.

D

Taylor argues that the principles outlined in Mathis should have prevented

the district court from considering the “dangerous weapon” element of his

Oklahoma conviction for assault and battery with a dangerous weapon, and in turn

from treating that conviction as a “crime of violence” under the elements clause

set forth in § 4B1.2(a)(1). In support of this proposition, Taylor begins by noting

that “the element of ‘dangerous weapon’ is not defined by the [Oklahoma] statute

that establishes the crime of assault and battery with a dangerous weapon.” Aplt.

11
Br. at 7. Taylor in turn notes that Oklahoma “[s]tate case law provides alternative

definitions of dangerous weapon, including weapons that are dangerous per se,

and anything that is dangerous due to the manner in which it is used.” Id. Taylor

asserts that, under the principles outlined in Mathis, these alternative definitions

of dangerous weapon constitute “means, not elements.” Id. The result, Taylor

asserts, is that Mathis “prevents consideration” at all of the statute’s dangerous

weapon element. Id. And, Taylor argues, “[o]nce that element is set aside, it is

apparent that [a] conviction [under the statute] cannot be classified as a violent

felony, because the remaining elements of assault and battery can be satisfied by

mere unconsented touching under Oklahoma law.” Id.

We addressed a nearly identical issue, and one involving the same

Oklahoma criminal statute, in our recent unpublished opinion in United States v.

Mitchell, — F. App’x —, 2016 WL 3569764 (10th Cir. June 29, 2016). The only

difference of significance is that Mitchell did not address the impact, if any, of

the Supreme Court’s decision in Mathis. As explained in greater detail below, we

reaffirm the outcome reached in Mitchell and conclude that, contrary to Taylor’s

arguments, Mathis does not require a different result.

As we noted in Mitchell, the threshold question is whether the Oklahoma

statute under which Taylor was convicted, Okla. Stat. tit. 21, § 645, contains a

single, indivisible set of elements or instead lists multiple, alternative elements.

In Mitchell, we held that § 645 “has a divisible set of elements; it criminalizes an

12
‘assault, battery, or assault and battery’ with a sharp or dangerous weapon, and in

the alternative it criminalizes ‘shoot[ing] at another’ with a gun or similar

means.” 2016 WL 3569764 at *4. We also held in Mitchell that “[t]he former

alternative further contains the sub-alternatives of ‘assault, battery, or assault and

battery,’ and ‘sharp or dangerous weapon.’” Id. (quoting § 645). The result is

that “we must therefore apply the modified categorical approach, examining the

charging document to determine what set of elements was applied to [Taylor].”

Id.

Taylor’s prior Oklahoma state conviction for violating § 645 arose out of

an information filed in the District Court of Muskogee County that alleged, in

pertinent part:

COUNT TWO: [on the 22nd day of December, 1998, Taylor]
unlawfully, willfully, wrongfully, intentionally and feloniously
without justifiable or excusable cause commit[ted] an assault and
battery on one Terry Wayne West with a certain dangerous weapon,
to-wit: a pool stick, held in the hand of said defendant and with
which he struck, clubbed and beat the said Terry Wayne West with
force and violence, with the unlawful and felonious intent then and
there to do him bodily harm . . . .

ROA, Vol. 3 at 71. This charging document makes clear that Taylor was charged

under the first alternative part of § 645 (“assault, battery, or assault and battery”

with a sharp or dangerous weapon), and under the sub-alternatives of “assault,”

“battery” and “dangerous weapon.” “The offense could thus be reduced to:

assault [and battery] upon the person of another with any dangerous weapon with

13
intent to do bodily harm and without justifiable or excusable cause.” Mitchell,

2016 WL 3569764 at *4. Oklahoma law defines an “assault” as “any willful and

unlawful attempt or offer with force or violence to do a corporal hurt to another,”

Okla. Stat. tit. 21, § 641, and a “battery” as “any willful and unlawful use of force

or violence upon the person of another,” Okla. Stat. tit. 21, § 642. Further, as

Taylor correctly notes, the Oklahoma Court of Criminal Appeals has held that the

amount of force necessary to constitute a simple assault or simple battery under

Oklahoma law is “only the slightest force or touching.” Steele v. State, 778 P.2d

929, 931 (Okla. Crim. App. 1989).

Armed with this information, “our task is to determine whether the above

elements include ‘the use, attempted use, or threatened use of physical force

against the person of another.’” Mitchell, 2016 WL 3569764 at *5 (quoting §

4B1.2(a)(1)). As Taylor notes, “[t]he Supreme Court [has] clarified that the

amount of force required to satisfy the elements clause is ‘violent force—that is,

force capable of causing physical pain or injury to another person.’” Id. (quoting

Johnson, 559 U.S. at 140). “And we have held that simple battery under

Oklahoma law does not satisfy the elements clause because it may be

accomplished by a slight touch.” Id. (citing United States v. Smith, 652 F.3d

1244, 1247 (10th Cir. 2011)). “Therefore, we must determine whether § 645

satisfies the requisite violent force necessary because it contains the additional

element of ‘a dangerous weapon.’” Id.

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 We have previously held, interpreting a similar New Mexico statute, “that

apprehension-causing assault with a deadly weapon does include as an element

the threatened use of force.” Id. (citing United States v. Ramon Silva, 608 F.3d

663, 670 (10th Cir. 2010)). “The New Mexico statute in Ramon Silva involved a

. . .definition of deadly weapon” that is “very similar” to “the ‘dangerous weapon’

definition [at issue] here.” Id. (citing 608 F.3d at 670 and N.M. Stat. Ann. § 30-

1-12(B)). We concluded in Ramon Silva that “[t]hreatening or engaging in

menacing conduct toward a victim, with a weapon capable of producing death or

great bodily harm, threatens the use of ‘violent force’ because by committing such

an act, the aggressor communicates to his victim that he will potentially use

‘violent force’ against the victim in the near-future.” 608 F.3d at 670 (emphasis

added). “Additionally,” we concluded, “‘apprehension causing’ aggravated

assault threatens the use of ‘violent force’ because the proscribed conduct always

has the potential to lead to ‘violent force.’” Id. at 671-72 (emphasis added).

“Therefore, following Ramon-Silva, when a statute criminalizes ‘purposefully

threatening . . . a victim[] with a weapon capable of causing death or great bodily

harm,’ a conviction under that statute is a crime of violence.” Mitchell, 2016 WL

3569764 at *5 (quoting Ramon Silva, 608 F.3d at 672).

In light of this precedent, we concluded in Mitchell “that the additional

element of a deadly or dangerous weapon makes an apprehension-causing assault

a crime of violence, even if the simple assault would not be.” Id. “And,” we

15
further concluded, “if an apprehension-causing assault with a deadly or dangerous

weapon constitutes a sufficient threat of force to satisfy the elements clause, then

an attempted-battery assault with such a weapon does as well; an attempted-

battery assault contains as an element the attempted use of force, not only the

threatened use of force.” Id. “With the addition of a deadly or dangerous

weapon, therefore, an attempted-battery assault is a crime of violence under the

elements clause as well.” Id.

Finally, applying these principles to the first alternative part of § 645, we

concluded as follows in Mitchell:

The statute here criminalizes an intentional attempt or threat to
commit violence on another—that is, either an attempted-battery
assault or an apprehension-causing assault—with a weapon capable
of causing great bodily harm. In other words, a conviction under this
portion of § 645 categorically requires proof of the attempted use or
threatened use of violent force. Following our precedent, a
conviction under these elements of § 645 “is categorically a crime of
violence under all circumstances.” Madrid, 805 F.3d at 1207.

Id. at *6.

The only possible distinction between Mitchell and the case at issue is

Taylor’s argument that Mathis effectively nullifies the dangerous weapon element

of his crime. As Taylor correctly notes, § 645 includes as an element the use of a

dangerous weapon, but does not expressly define the meaning of “dangerous

weapon.” As a result, the Oklahoma courts have, over several decades,

effectively fleshed out the definition of “dangerous weapon” to include, among

16
other things, “a pistol, revolver, dagger, or implement likely to cause death or

bodily harm.” Mitchell, 2016 WL 3569764 at *4 (citing OUJI-CR 4-28). Thus, it

is clear that § 645’s “dangerous weapon” element can be satisfied by “multiple

means.” Mathis, 136 S. Ct. at 2250. Because the specific type of “dangerous

weapon” that a particular defendant uses is, in essence, a “disjunctive factual

scenario[] rather than [a] separate element[], . . . a jury need not make any

specific findings” regarding the type of weapon used. Id. at 2249.

Importantly, however, these features do not, as suggested by Taylor,

operate to nullify the “dangerous weapon” element for purposes of determining

whether a conviction under the first alternative part of § 645 qualifies as a “crime

of violence” for purposes of § 4B1.2(a)(1). That is because, regardless of how

the “dangerous weapon” element is satisfied in a particular case, the “dangerous

weapon” element always operates in the manner described in Mitchell and Ramon

Silva. More specifically, regardless of the type of “dangerous weapon” that is

employed by a particular defendant, the use of a “dangerous weapon” during an

assault or battery always “constitutes a sufficient threat of force to satisfy the

elements clause” of § 4B1.2(a)(1). Mitchell, 2016 WL 3569764 at *5.

For these reasons, we conclude that Taylor has failed to establish error on

the part of the district court in calculating his sentence, let alone plain error.

III

The judgment of the district court is AFFIRMED.

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