United States v. Burtons

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 17, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 16-6091
(D.C. Nos. 5:15-CV-01314-R and
TRAVONN LEON BURTONS, 5:11-CR-00126-R-1)
(W.D. Okla.)
Defendant - Appellant.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before HARTZ, MATHESON, and MORITZ, Circuit Judges.
_________________________________

Travonn Burtons appeals the district court’s order denying his 28 U.S.C.

§ 2255 motion. Because we agree with the district court that Burtons’ Oklahoma

conviction for assault and battery with a deadly weapon constitutes a violent felony

under 18 U.S.C. § 924(e)(2)(B)(i)’s elements clause, we affirm.

I

In 2011, Burtons pleaded guilty to being a felon in possession of a firearm. See

18 U.S.C. § 922(g)(1). After the district court imposed a 180-month prison sentence,

Burtons filed his first § 2255 motion. For reasons not pertinent to this appeal, the

district court granted relief and vacated the judgment and sentence.

*
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.
 Burtons then pleaded guilty (again) to being a felon in possession of a firearm.

Based in part on a state conviction for assault and battery under Okla. Stat. Ann. tit.

21, § 652(C) (1994)—an offense the PSR classified as a violent felony under

§ 924(e)—the district court again imposed a 180-month sentence. Burtons appealed, and

this court affirmed. See United States v. Burtons, 590 F. App’x 761, 762 (10th Cir. 2014)

(unpublished).

Burtons then timely filed the instant § 2255 motion.1 Relying on the Supreme

Court’s then-recent decision in Johnson v. United States, 135 S. Ct. 2551 (2015), Burtons

argued that his Oklahoma conviction for assault and battery no longer constitutes a

violent felony under § 924(e)’s residual clause. See § 924(e)(2)(B)(ii) (defining violent

felony, in relevant part, as crime that “otherwise involves conduct that presents a serious

potential risk of physical injury to another”); Johnson, 135 S. Ct. at 2557 (striking down

residual clause as unconstitutionally vague).

In response, the government asserted that even though Burtons’ Oklahoma

conviction no longer qualifies as a violent felony under § 924(e)’s residual clause, it still

qualifies as a violent felony under § 924(e)’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

district court agreed with the government and denied relief.

1
This is technically Burtons’ second § 2255 motion. But it doesn’t constitute a
“second or successive motion” for purposes of § 2255(h). Cf. Magwood v. Patterson,
561 U.S. 320, 341-42 (2010).
2
 Burtons then sought a certificate of appealability, which this court granted.

Burtons now appeals the district court’s denial of his § 2255 motion.

II

A

Under the Armed Career Criminal Act (ACCA) of 1984, 18 U.S.C. § 924(e), a

defendant who has “three previous convictions . . . for a violent felony” faces a minimum

15-year prison sentence for violating § 922(g)(1). § 924(e)(1). Until recently, the term

“violent felony” encompassed any crime that (1) “has as an element the use, attempted

use, or threatened use of physical force against the person of another”; (2) “is burglary,

arson, or extortion, [or] involves use of explosives”; or (3) “otherwise involves conduct

that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(i), (ii).

But in Johnson, the Supreme Court struck down the third part of this definition—known

as the residual clause—as unconstitutionally vague. 135 S. Ct. at 2555-57.

Here, the parties agree that in determining whether Burtons is entitled to relief

under § 2255, we must apply the Court’s decision in Johnson retroactively. See Welch v.

United States, 136 S. Ct. 1257, 1265 (2016) (“Johnson is thus a substantive decision and

so has retroactive effect . . . in cases on collateral review.”). They also agree that, as a

result, Burtons’ Oklahoma conviction for assault and battery under Okla. Stat. Ann. tit.

21, § 652(C) (1994) no longer qualifies as a violent felony under § 924(e)(2)(B)(ii)’s

residual clause. See Johnson, 135 S. Ct. at 2557 (invalidating residual clause as

unconstitutionally vague). But they disagree as to whether his conviction nevertheless

qualifies as a violent felony under § 924(e)(2)(B)(i)’s elements clause. See

3
§ 924(e)(2)(B)(i) (defining violent felony as offense that “has as an element the use,

attempted use, or threatened use of physical force against the person of another”);

Johnson , 135 S. Ct. at 2563 (“Today’s decision does not call into question . . . the

remainder of the [ACCA’s] definition of a violent felony.”).

In resolving that disagreement, the district court applied what’s known as the

modified categorical approach: it looked to certain state court documents to determine

“which alternative” portion of Okla. Stat. Ann. tit. 21, § 652(C) (1994) “formed the

basis of [Burtons’] prior conviction.” Descamps v. United States, 133 S. Ct. 2276, 2281

(2013). Armed with that information, the district court then asked whether that specific

statutory alternative—rather than Okla. Stat. Ann. tit. 21, § 652(C) as a whole—“has as

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

of another.” § 924(e)(2)(B)(i); see Descamps, 133 S. Ct. at 2281. And because the district

court concluded that the answer to that question is yes, it ruled that Burtons’ prior

conviction remains a violent felony even after Johnson. Accordingly, it denied Burtons’

§ 2255 motion.

Relying on the Supreme Court’s recent decision in Mathis v. United States,

136 S. Ct. 2243 (2016), Burtons argues this was error. He points out that the modified

categorical approach only applies to “so-called ‘divisible statute[s].’” Descamps, 133 S.

Ct. at 2281. And he asserts that Okla. Stat. Ann. tit. 21, § 652(C) isn’t a divisible

statute under Mathis because it contains alternative means, rather than alternative

elements. See Mathis, 136 S. Ct. at 2253. Thus, he concludes, the district court

should have (1) eschewed the modified categorical approach, (2) asked whether Okla.

4
Stat. Ann. tit. 21, § 652(C) as a whole “has as an element the use, attempted use, or

threatened use of physical force against the person of another,” § 924(e)(2)(B)(i); and

(3) ruled that it doesn’t.

But here we hit a snag. Burtons didn’t raise this argument in district court. On

the contrary, he implicitly invited the district court to treat Okla. Stat. Ann. tit. 21,

§ 652(C) (1994) as divisible: he urged the court to focus exclusively on a single

statutory alternative, rather than the statute as a whole, in applying the elements

clause. Moreover, while the district court explicitly ruled that Okla. Stat. Ann. tit. 21,

§ 652(C) (1994) is divisible, Burtons doesn’t challenge that ruling in his opening

brief. In fact, he doesn’t discuss Mathis in his opening brief at all. Instead, he raises a

Mathis argument for the first time in his reply brief. Thus, for both of these reasons,

we would normally treat this argument as waived and decline to consider it. See, e.g.,

United States v. Wayne, 591 F.3d 1326, 1332 n.4 (10th Cir. 2010) (“Because

[appellant] raised this argument for the first time in her reply brief, she has waived it

on appeal.”); see also United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005)

(“The invited-error doctrine ‘prevents a party who induces an erroneous ruling from

being able to have it set aside on appeal.’” (quoting United States v. Burson, 952 F.2d

1196, 1203 (10th Cir. 1991))).

We decline to take that approach here. When Burtons filed his § 2255 motion,

“Tenth Circuit law held the modified categorical approach applied regardless of whether

a statute’s alternatives were elements or means.” United States v. Titties, 852 F.3d 1257,

1269 n.12 (10th Cir. 2017) (citing United States v. Trent, 767 F.3d 1046, 1058-61 (10th

5
Cir. 2014), abrogated by Mathis, 136 S. Ct. 2243). And the law in this circuit didn’t

change until the Supreme Court decided Mathis on June 23, 2016—just over two weeks

after Burtons filed his opening brief. Thus, while Burtons implicitly invited the district

court to treat Okla. Stat. Ann. tit. 21, § 652(C) (1994) as divisible, he did so in reliance

“on settled law that changed while the case was on appeal.” Titties, 852 F.3d at 1264 n.5.

Under those circumstances, the invited-error doctrine doesn’t apply. See id. at 1264 & n.5

(rejecting government’s invited-error argument and considering defendant’s newly-raised

Mathis argument where defendant, in reliance on then-controlling law, asked district

court to apply modified categorical approach).

Likewise, while we typically decline to resolve arguments presented to us for the

first time in a reply brief, we see no need to follow that general rule here. The reasons

for that rule are twofold. First, considering such an argument typically “robs the

appellee of the opportunity to” respond. Stump v. Gates, 211 F.3d 527, 533 (10th Cir.

2000). Second, and relatedly, the rule helps “protect[] this court from publishing an

erroneous opinion because we did not have the benefit of the appellee’s response.”

Id.

These concerns don’t apply here. The government (1) cited Mathis in its response

brief; (2) acknowledged there that “[a]fter Mathis . . . the critical distinction in the

divisibility analysis is whether enumerated alternatives are ‘means’ or ‘elements,’”

Aplee. Br. 11 (quoting Mathis, 136 S. Ct. at 2255); and (3) proceeded to argue that Okla.

Stat. Ann. tit. 21, § 652(C) (1994) is divisible. Moreover, both parties spent the bulk

of oral argument discussing whether Okla. Stat. Ann. tit. 21, § 652(C) (1994) is

6
divisible under Mathis, and have since each filed a letter of supplemental authority

addressing this question. See Fed. R. App. P. 28(j). Finally, as discussed above, the

Supreme Court didn’t decide Mathis until after Burtons had already filed his opening

brief. Thus, Burtons’ failure to initially raise his Mathis argument “reflects not a lack

of diligence, but merely a want of clairvoyance.” Joseph v. United States, 135 S. Ct.

705, 706 (2014) (Kagan, J., respecting the denial of certiorari). Accordingly, under

the unusual procedural facts of this case, we opt to consider Burtons’ newly raised

Mathis argument.

But here we hit another snag. While the government addresses Mathis in its

response brief and Burtons addresses Mathis in his reply brief, neither party discusses

whether Mathis applies retroactively to cases that, like Burtons’, arise on collateral

review.2 See Whorton v. Bockting, 549 U.S. 406, 416 (2007) (explaining that while

“an old rule applies both on direct and collateral review,” a new rule will only apply

2
True, the government suggested in a single sentence at oral argument that
Mathis doesn’t apply retroactively. But retroactivity is an affirmative defense that the
government may forfeit or waive. See Schiro v. Farley, 510 U.S. 222, 229 (1994).
And by the time we heard oral argument in this case, the government had already
cited Mathis in its response brief for the proposition that “the critical distinction in
the divisibility analysis is whether enumerated alternatives are ‘means’ or
‘elements.’” Aplee. Br. 11 (quoting Mathis, 136 S. Ct. at 2255). By explicitly
inviting us to rely on this aspect of Mathis in resolving whether Okla. Stat. Ann. tit.
21, § 652(C) (1994) is divisible, the government may well have forfeited—or even
waived—any argument that Mathis doesn’t apply retroactively. And if so, we
question whether the single sentence the government dedicated to retroactivity at oral
argument is sufficient to vitiate that forfeiture or waiver. Nevertheless, we see no
need to resolve either of these questions because we ultimately conclude that, even
assuming Mathis applies retroactively, Burtons isn’t entitled to relief.
7
retroactively to cases on collateral review if (1) it’s substantive rather than procedural

or (2) it amounts to watershed rule of criminal procedure).

In the absence of any briefing or meaningful discussion of the issue by either

party at oral argument, we decline to resolve whether Mathis applies retroactively to

cases on collateral review. Instead, we simply assume for the sake of argument that it

does and proceed to apply it to the facts of this case. See Collins v. Youngblood, 497

U.S. 37, 41 (1990) (explaining that retroactivity isn’t “‘jurisdictional’ in the sense

that” court must raise and decide it sua sponte). Even with the benefit of that

assumption, Burtons isn’t entitled to relief under § 2255; contrary to Burtons’

arguments on appeal, (1) the district court correctly applied the modified categorical

approach under Mathis because Okla. Stat. Ann. tit. 21, § 652(C) (1994) contains

alternative elements, not alternative means, see infra Part II.B; and (2) the specific

statutory alternative under which Burtons’ prior conviction arises constitutes a

violent felony under § 924(e)(2)(B)(i)’s elements clause, see infra Part II.C.

B

Under Oklahoma law,

[a]ny person who commits any assault and battery upon another [1] by
means of any deadly weapon, or [2] by such other means or force as is
likely to produce death, or [3] in any manner attempts to kill another, or
[4] in resisting the execution of any legal process, shall upon conviction
be punished by imprisonment in the State Penitentiary not exceeding
twenty (20) years.

Okla. Stat. Ann. tit. 21, § 652(C) (1994).

8
 According to Burtons, Okla. Stat. Ann. tit. 21, § 652(C) (1994)’s four statutory

alternatives constitute means, not elements. Thus, he asserts, the statute isn’t

divisible and the district court “ha[d] no call to decide which of the statutory

alternatives was at issue in the earlier prosecution.” Mathis, 136 S. Ct. at 2256.

Instead, Burtons insists, the district court could only ask whether, as a whole, Okla.

Stat. Ann. tit. 21, § 652(C) (1994) “can be violated without the ‘use, attempted use,

or threatened use of physical force.’” Titties, 852 F.3d at 1273 (quoting

§ 924(e)(2)(B)(i)). And because one of Okla. Stat. Ann. tit. 21, § 652(C) (1994)’s

statutory alternatives—assault and battery in resisting the execution of legal

process—appears to be a “non-violent way[]” of violating the statute, Burtons

concludes that his conviction “is not categorically a violent felony” under the

elements clause. Id.; see id. at 1265 (“If some conduct that would be a crime under

the statute would not be a violent felony under the ACCA, then any conviction under

that statute will not count toward an ACCA enhancement, regardless of whether the

conduct that led to the defendant’s prior conviction was in fact violent.”).

We agree with Burtons that Okla. Stat. Ann. tit. 21, § 652(C) (1994)’s fourth

alternative doesn’t appear to satisfy the elements clause. But we need not definitively

resolve that question. That’s because we disagree with Burtons’ assertion that Okla.

Stat. Ann. tit. 21, § 652(C) (1994) contains alternative means, rather than alternative

elements.

In resolving the elements-or-means inquiry, Mathis tells us to first ask whether

“a state court decision definitively answers the question.” 136 S. Ct. at 2256. Here,

9
Burtons identifies two decisions that he says do just that: Goree v. State, 163 P.3d

583 (Okla. Crim. App. 2007), and Davis v. State, 354 P.2d 466 (Okla. Crim. App.

1960).

Burtons is correct that, in Davis, the Oklahoma Court of Criminal Appeals

(OCCA) explained that an earlier version of Okla. Stat. Ann. tit. 21, § 652 “set[] out

four different means by which the crime defined [could] be committed.” 354 P.2d at

470 (emphasis added). And those “means” included (1) “assault and battery by means

of a deadly weapon”; (2) “assault and battery by means other than a deadly weapon,

but by such force as is likely to produce death,” and (3) “assault and battery in

resisting the execution of any legal process.” Id. But while it’s true that Davis at one

point refers to these statutory alternatives as “means,” id., it later appears to describe

one of them as “an essential element,” id. at 471. Thus, because it’s unclear whether

Davis distinguishes between “means” and “elements” in any meaningful way, it

doesn’t “definitively answer[]” the elements-or-means question. Mathis, 136 S. Ct. at

2256.

Next, in a similar argument, Burtons points out that the concurring opinion in

Goree states, “[T]here are four different ways” to violate Okla. Stat. Ann. tit. 21,

§ 652 (1994). 163 P.3d at 585 (Lumpkin, J., concurring) (emphasis added). But even

if we afford controlling weight to the concurring opinion’s language, Burtons doesn’t

explain why we should treat the term “ways” as synonymous with the term “means,”

rather than as synonymous with the term “elements.” Moreover, a footnote in

Goree’s majority opinion states that Okla. Stat. Ann. tit. 21, § 652 (1994) “separately

10
prohibits five crimes,” three of which appear in subsection (C): “[1] assault and

battery with a deadly weapon or by any means likely to produce death, [2] attempts

to kill, and [3] use of a deadly weapon in resisting legal process.” 163 P.3d at 584 n.5

(emphasis added). And by referring to these alternatives as “separate[] . . . crimes,”

and “[s]eparate criminal offenses,” id. at 584 n.5, Goree appears to undermine, rather

than support, Burtons’ assertion that Okla. Stat. Ann. tit. 21, § 652(C) (1994)

comprises alternative means. See Mathis, 136 S. Ct. at 2249 (explaining that statute is

divisible if it “list[s] elements in the alternative, and thereby define[s] multiple

crimes” (emphasis added)). Accordingly, neither Davis nor Goree “definitively

answers the question” of whether Okla. Stat. Ann. tit. 21, § 652(C) (1994)’s statutory

alternatives are means or elements.3 Mathis, 136 S. Ct. at 2256.

3
For the first time at oral argument and then in a subsequent Rule 28(j) letter,
Burtons pointed out that in Goree, the OCCA equated the separate “crimes” set forth
in Okla. Stat. Ann. tit. 21, § 652 with the “separate offenses” of “first degree felony
murder and first degree malice murder” set forth in Okla. Stat. Ann. tit. 21, § 701.7.
Goree, 163 P.3d at 584 n.5. And as Burtons explains, Oklahoma doesn’t require jury
unanimity as to Okla. Stat. Ann. tit. 21, § 701.7’s two “separate offenses.” Id.; see
Crawford v. State, 840 P.2d 627, 640 (Okla. Crim. App. 1992), abrogated on other
grounds by Malone v. State, 168 P.3d 185 (Okla. Crim. App. 2007). Thus, Burtons
concludes, the fact that Oklahoma treats Okla. Stat. Ann. tit. 21, § 652(C) (1994)’s
alternatives as “separate[] . . . crimes,” and “[s]eparate criminal offenses,” Goree,
163 P.3d at 584 n.5, doesn’t necessarily make those statutory alternatives elements,
rather than means, see Mathis, 136 S. Ct. at 2256 (indicating that where jury
unanimity isn’t required, statutory alternatives constitute means, not elements).

We decline to address this argument. We are willing to consider Burtons’ late
blooming Mathis argument because the Supreme Court didn’t decide Mathis until
after Burtons had already filed his opening brief. See supra Part II.A. But the OCCA
decided Goree in 2007. And Burtons was obviously aware of Goree’s existence when
he filed his reply brief; he cited it there. Thus, we see no reason to overlook Burtons’
waiver of this specific argument. See United States v. Dahda, 852 F.3d 1282, 1293
11
 In the absence of a dispositive state-court opinion, we next ask whether Okla.

Stat. Ann. tit. 21, § 652(C) (1994)’s “statutory alternatives carry different

punishments.” Mathis, 136 S. Ct. at 2256. If so, “then . . . they must be elements”

rather than means. Id.

Burtons suggests the inverse of this statement is also true: he asserts that

because Okla. Stat. Ann. tit. 21, § 652(C) (1994)’s statutory alternatives don’t carry

different punishments, they must instead be means. But Burtons’ argument commits

the fallacy of denying the antecedent. See TorPharm, Inc. v. Ranbaxy Pharm., Inc.,

336 F.3d 1322, 1329 n.7 (Fed. Cir. 2003) (defining fallacy of denying antecedent as

“[a]n invalid argument of the general form: If p, then q. Not p. Therefore, not q”).

Because nothing in Mathis suggests that statutory alternatives carrying the same

punishment are necessarily means rather than elements, this aspect of Okla. Stat.

Ann. tit. 21, § 652(C) (1994) provides little guidance.

Nor can we rely here on two other statutory factors that Mathis says may guide

our inquiry. First, Mathis indicates that “if a statutory list is drafted to offer

‘illustrative examples,’ then it includes only a crime’s means of commission.” 136 S.

Ct. at 2256 (quoting United States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014)).

In Howard, for example, the Eleventh Circuit discussed a statutory scheme that

prohibited entering a “building” and then set forth “a non-exhaustive list of things

n.7 (10th Cir. 2017) (explaining that arguments made for first time at oral argument
are waived); United States v. Kimler, 335 F.3d 1132, 1138 n.6 (10th Cir. 2003)
(declining to address argument raised for first time in Rule 28(j) letter, in part
because it was “based on authority that was readily available at the time of briefing”).
12
that fall under th[e] definition” of that term. 742 F.3d at 1348. But Okla. Stat. Ann.

tit. 21, § 652(C) (1994) doesn’t contain such a non-exhaustive list. Nor does it

explicitly “identify which things must be charged (and so are elements) and which

need not be (and so are means).” Mathis, 136 S. Ct. at 2256; cf., e.g., Cal. Penal Code

§ 952 (explaining that charging document shall not contain “any allegations of

matter not essential to be proved” and that “[i]n charging theft it shall be sufficient to

allege that the defendant unlawfully took the labor or property of another,” thus

indicating that these are essential elements of theft). Accordingly, this is not a case

where “the statute on its face . . . resolve[s] the issue.” Mathis, 136 S. Ct. at 2256.

Mathis affords us one final avenue of discerning whether Okla. Stat. Ann. tit.

21, § 652(C) (1994)’s alternatives are elements or means: when “state law fails to

provide clear answers,” federal judges can take a “peek” at documents like jury

instructions and indictments “for ‘the sole and limited purpose of determining

whether [the listed items are] element[s] of the offense.’” Mathis, 136 S. Ct. at 2243

(alterations in original) (quoting Rendon v. Holder, 782 F.3d 466, 474 (9th Cir. 2015)

(Kozinski, J., dissenting from the denial of rehearing en banc)).

Here, Burtons concedes that “Oklahoma provides separate jury instructions for

the different methods of violating” Okla. Stat. Ann. tit. 21, § 652(C) (1994).4 Rep.

Br. 7. For instance, OUJI-CR 4-4 lists the elements of “Assault and Battery, Shooting

with Intent to Kill”; OUJI-CR 4-6 lists the elements for “Assault and Battery with a

4
“In cases like [Burtons’] where the defendant pled guilty and no jury
instructions were given, the state’s uniform jury instructions can provide insight into
the means/elements question.” Titties, 852 F.3d at 1282 n.15.
13
Deadly Weapon”; OUJI-CR 4-7 lists the elements for “Assault and Battery by Means

or Force Likely to Produce Death”; and OUJI-CR 4-9 lists the elements of “Assault

and Battery Resisting the Execution of Legal Process.”

The fact that Oklahoma’s jury instructions don’t “reiterate[e] all the terms of”

Okla. Stat. Ann. tit. 21, § 652(C) (1994) in one instruction, but rather “referenc[e]

one alternative term to the exclusion of all others” in each of several separate

instructions, indicates that Okla. Stat. Ann. tit. 21, § 652(C) (1994) “contains a list of

elements, each one of which goes toward a separate crime.” Mathis, 136 S. Ct. at

2257; see also United States v. Bouziden, No. CIV-16-516-C, 2017 WL 149988, at *2

(W.D. Okla. Jan. 13, 2017) (concluding that Oklahoma manslaughter statute is

divisible based on fact that Oklahoma has three separate jury instructions, each with

separate elements, for three ways of violating statute); United States v. Hullum, No.

11-CR-00127-DME-02, 2016 WL 7178312, at *4 n.5 (D. Colo. Dec. 9, 2016)

(treating statute as divisible because Tenth Circuit pattern jury instructions don’t list

together the alternative methods of violating statute).

Under these circumstances, we conclude that Oklahoma’s jury instructions

“speak plainly,” Mathis, 136 S. Ct. at 2257: Okla. Stat. Ann. tit. 21, § 652(C)

(1994)’s statutory alternatives are elements, not means. Thus, the district court didn’t

err in treating Okla. Stat. Ann. tit. 21, § 652(C) (1994) as divisible and applying the

modified categorical approach.

14
 C

But that doesn’t end our analysis. Even assuming that Okla. Stat. Ann. tit. 21,

§ 652(C) (1994) is divisible, Burtons argues that the specific offense he was

convicted of—i.e., assault and battery with a deadly weapon—doesn’t qualify as a

violent felony under § 924(e)(2)(B)(i)’s elements clause. And because it can no longer

qualify as a violent felony under § 924(e)(2)(B)(ii)’s now-defunct residual clause, see

Johnson, 135 S. Ct. at 2557, Burtons argues the district court erred in denying his § 2255

motion.

According to Burtons, Okla. Stat. Ann. tit. 21, § 652(C) (1994) defines the

offense of assault and battery with a deadly weapon as (1) an assault and battery

(2) upon another person (3) with a deadly weapon. Burtons asserts this offense

doesn’t satisfy § 924(e)’s elements clause because it doesn’t “ha[ve] as an element

the use, attempted use, or threatened use of physical force against the person of

another.” § 924(e)(2)(B)(i).

In support, Burtons advances a three-part argument. First, he points out that in

this context, “the phrase ‘physical force’ means violent force—that is, force capable

of causing physical pain or injury to another person.” Johnson v. United States

(Curtis Johnson), 559 U.S. 133, 140 (2010) (quoting § 924(e)(2)(B)(i)). Yet under

Oklahoma law, “only the slightest touching is necessary to constitute the ‘force or

violence’ element of battery.” Steele v. State, 778 P.2d 929, 931 (Okla. Crim.App.

1989). Thus, Burtons concludes, simple battery under Oklahoma law doesn’t involve

the type of “violent force” required by Curtis Johnson, 559 U.S. at 140.

15
 Second, Burtons asserts that under Oklahoma law, “assault is merely an

attempt to commit a battery.” Aplt. Br. 15. Thus, he reasons, assault can be “an offer

or attempt involving the merest touching,” id. at 16, which likewise wouldn’t satisfy

Curtis Johnson’s definition of force, see 559 U.S. at 140.

Finally, Burtons insists that Okla. Stat. Ann. tit. 21, § 652(C) (1994)’s deadly-

weapon element doesn’t supply the requisite “use, attempted use, or threatened use of

physical force,” § 924(e)(2)(B)(i), to render the offense a violent felony because

someone could commit assault and battery with a deadly weapon by, e.g., poking

someone with a handgun or tapping someone with a knife.

We don’t disagree with Burtons’ first assertion; in fact, we recently recognized

that “simple battery under Oklahoma law does not satisfy [U.S.S.G. § 4B1.2(a)(1)’s]

elements clause because it may be accomplished by a slight touch.” United States v.

Taylor, 843 F.3d 1215, 1223 (10th Cir. 2016) (quoting United States v. Mitchell, 653

F. App’x 639, 644 (10th Cir. 2016) (unpublished)), cert. denied, 137 S. Ct. 1608

(2017).5 But while our decision in Taylor provides some support for Burtons’

argument, it ultimately forecloses it.

5
The question in Taylor was whether the defendant’s prior conviction was for
a “crime of violence” under U.S.S.G. § 4B1.2(a), as opposed to a “violent felony”
under § 924(e)(2)(B). 843 F.3d at 1218. But U.S.S.G. § 4B1.2(a)’s elements clause is
identical to § 924(e)(2)(B)’s elements clause: both encompass an offense that “has as
an element the use, attempted use, or threatened use of physical force against the
person of another.” See § 924(e)(2)(B)(i); U.S.S.G. § 4B1.2(a)(1). Thus, Taylor’s
analysis applies with equal force here. Cf. United States v. Thomas, 643 F.3d 802,
805 (10th Cir. 2011) (“Because of this commonality of language in the residual
clauses of the ACCA and USSG § 4B1.2(a), we have consistently interpreted them
identically.”).
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 In Taylor, we noted that Oklahoma recognizes two types of assault:

(1) “attempted-battery assault” and (2) “apprehension-causing assault.” 843 F.3d at

1224 (quoting Mitchell, 653 F. App’x at 645); see id. at 1223 (“Oklahoma law

defines an ‘assault’ as ‘any willful and unlawful attempt or offer with force or

violence to do a corporal hurt to another.’” (quoting Okla. Stat. Ann. tit. 21, § 641)).

What’s more, Taylor holds that both attempted-battery assault and apprehension-

causing assault—when coupled with “the additional element of a deadly or dangerous

weapon”—satisfy the elements clause. Id. at 1224 (quoting Mitchell, 653 F. App’x at

645). Thus, we concluded in Taylor that the defendant’s conviction for assault and

battery with a dangerous weapon under Okla. Stat. Ann. tit. 21, § 645 constituted a

crime of violence under U.S.S.G. § 4B1.2(a)(1)’s elements clause. Taylor, 843 F.3d

at 1223-25; see id. at 1224-25 (“[T]he 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).” (quoting Mitchell, 653 F. App’x at 645)).

Burtons doesn’t provide us with any basis upon which to distinguish assault

and battery with a deadly weapon under Okla. Stat. Ann. tit. 21, § 652(C) (1994)

from assault and battery with a dangerous weapon under Okla. Stat. Ann. tit. 21,

§ 645. And we see none. Accordingly, under Taylor, we hold that assault and battery

with a deadly weapon under Okla. Stat. Ann. tit. 21, § 652(C) (1994) “has as an

element the use, attempted use, or threatened use of physical force against the person

of another.” § 924(e)(2)(B)(i); see Taylor, 843 F.3d at 1224-25. And because that

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means Burtons’ conviction qualifies as a violent felony under the elements clause, we

affirm the district court’s order denying his § 2255 petition.

Entered for the Court

Nancy L. Moritz
Circuit Judge

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