FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 20, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-8087
(D.C. Nos. 1:16-CV-00079-ABJ and
MICHAEL DON NEELY, 1:12-CR-00174-ABJ-1)
(D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Michael Neely appeals the district court’s order denying his 28 U.S.C. § 2255
motion. For the reasons discussed below, we affirm.
Background
In early 2013, Neely pleaded guilty to one count of being a felon in possession
of a firearm and ammunition. See 18 U.S.C. § 922(g)(1). The Presentence
Investigation Report (PSR) recommended imposing an enhanced sentence under the
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. 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.
Armed Career Criminal Act (ACCA) of 1984, 18 U.S.C. § 924(e). In relevant part,
the PSR based this recommendation on four of Neely’s prior convictions: (1) a 1980
Oregon conviction for delivering marijuana; (2) a 1983 Tennessee conviction for
burglary; (3) a 1990 Oregon conviction for first-degree robbery; and (4) a 2007
Nevada conviction for attempting to commit battery resulting in substantial bodily
harm. See § 924(e)(1) (establishing mandatory minimum sentence for offenders who
violate § 922(g) and have at least “three previous convictions . . . for a violent felony
or a serious drug offense, or both”).
At his March 21, 2013 sentencing, Neely conceded that his previous
convictions triggered the ACCA enhancement. The sentencing court agreed.
Specifically, the sentencing court categorized delivering marijuana as a “serious drug
offense.” § 924(e)(1); see also § 924(e)(2)(A). And it characterized burglary, first-
degree robbery, and attempted battery as “violent felon[ies].” § 924(e)(1); see also
§ 924(e)(2)(B). But in reaching this second conclusion, the sentencing court didn’t
specify whether it was relying on the 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”). Instead, the sentencing court
2
simply pronounced that Neely was subject to the ACCA enhancement and sentenced
him to “200 months and 5 days” in prison. R. vol. 2, 10.
Neely didn’t appeal his sentence—an unsurprising choice in light of his
concession that the ACCA enhancement applied. But just over two years later, the
legal landscape changed when the Supreme Court struck down the ACCA’s residual
clause as unconstitutionally vague. See Johnson v. United States, 135 S. Ct. 2551,
2557 (2015) (“We are convinced that the indeterminacy of the wide-ranging inquiry
required by the residual clause both denies fair notice to defendants and invites
arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause
denies due process of law.”). And less than a year after that, Neely invoked Johnson
to attack his sentence in a timely § 2255 motion. See § 2255(f)(3) (“The [one-year]
limitation period [for filing a § 2255 motion] shall run from . . . the date on which the
right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review.”); Welch v. United States, 136 S. Ct. 1257, 1268 (2016)
(“Johnson announced a substantive rule that has retroactive effect in cases on
collateral review.”).
In seeking Johnson relief, Neely didn’t dispute that delivering marijuana was
and is a “serious drug offense.” § 924(e)(1); see also § 924(e)(2)(A). But he did
argue that “after Johnson,” his convictions for burglary, attempted battery, and first-
degree robbery “no longer justify the ACCA sentencing enhancement” because—
3
according to Neely—“they could only have been [ACCA] predicates under the
residual clause.” R. vol. 1, 7.
The district court disagreed. It acknowledged that “Johnson eliminated the
residual clause from the ACCA calculus for determining what constitutes a violent
felony.” Id. at 136. But it pointed out that Johnson left intact both the ACCA’s
elements clause and its enumerated-offenses clause. See Johnson, 135 S. Ct. at 2563
(“Today’s decision does not call into question application of the [ACCA] to the four
enumerated offenses, or the remainder of the [ACCA’s] definition of a violent
felony.”). And the district court further determined that first-degree robbery,
burglary, and attempted battery each constituted a violent felony under one of those
still-valid clauses. Thus, the district court concluded that even “after Johnson,” Neely
had one conviction for a serious drug offense and three convictions for violent
felonies—enough to trigger the ACCA enhancement “with even one extra [violent-
felony] conviction to spare.” R. vol. 1, 141; see also § 924(e)(1) (requiring only
“three previous convictions . . . for a violent felony or a serious drug offense, or
both”). Accordingly, the district court denied Neely’s § 2255 motion. Neely appeals.
Analysis
The district court denied Neely’s § 2255 motion on November 13, 2017, and
Neely filed his notice of appeal four days later. Since then, our approach to analyzing
4
Johnson claims has evolved considerably. Thus, we begin our discussion with a brief
explanation of that approach.1
In determining whether a petitioner is entitled to Johnson relief, our analysis
proceeds in two steps. First, we ask whether a Johnson error occurred. That is, we
ask “whether the sentencing court relied on the residual clause in imposing the
ACCA sentence.” United States v. Lewis, 904 F.3d 867, 872 (10th Cir. 2018)
(quoting United States v. Wilfong, 733 F. App’x 920, 926 (10th Cir. 2018)
(unpublished)).
Sometimes the sentencing record will yield an obvious answer to this threshold
question. For instance, the record might contain a “clear pronouncement” from the
sentencing court that it relied on the residual clause to classify a particular offense as
a violent felony. Id. at 871. But sometimes (as Neely concedes is the case here) the
record contains no such “clear pronouncement.” Id. Under those circumstances,
resolving the Johnson-error question becomes more difficult. But we may
nevertheless be able answer it by looking to “the ‘relevant background legal
environment at the time of sentencing.’” Id. (quoting United States v. Snyder, 871
F.3d 1122, 1129 (10th Cir. 2017), cert. denied, 138 S. Ct. 1696 (2018)). In particular,
1
Without the benefit of some of the more recent authorities we discuss in this
section, it’s understandable that neither the parties’ arguments nor the district court’s
ruling track precisely with the applicable analytical framework as we describe it here.
Nevertheless, we will affirm the district court’s order denying Neely’s § 2255 motion
so long as the district court reached the correct result—even if it “relied upon a
wrong ground or gave a wrong reason” in doing so. Richison v. Ernest Grp., Inc., 634
F.3d 1123, 1130 (10th Cir. 2011) (quoting S.E.C. v. Chenery Corp., 318 U.S. 80, 88
(1943)).
5
if “there would have been little dispute at the time of [the petitioner’s] sentencing”
that a given offense satisfied the enumerated-offenses clause, then “there would have
been no need for” the sentencing court to “rel[y] on the residual clause”—thus
rendering it unlikely that it did so. Snyder, 871 F.3d at 1129–30. If, on the other
hand, the sentencing court would have been unable to rely on the enumerated-
offenses clause or the elements clause at the time of sentencing because doing so
would have violated then-controlling law, we may instead deduce “that the
sentencing court must have relied on the residual clause.” United States v. Driscoll,
892 F.3d 1127, 1135 (10th Cir. 2018).
At this first stage of our two-step Johnson inquiry, a petitioner bears the
burden of showing “by a preponderance of the evidence” that the sentencing court
relied on the residual clause. United States v. Washington, 890 F.3d 891, 896 (10th
Cir. 2018), cert. denied, No. 18-5594, 2019 WL 113224 (U.S. Jan. 7, 2019); see also
Driscoll, 892 F.3d at 1135. In determining whether a petitioner has satisfied this
burden, “we review the [district court’s] factual determinations about the sentencing
record for clear error and [its] legal conclusions about the relevant background legal
environment de novo.” Driscoll, 892 F.3d at 1132–33.
If a petitioner succeeds in demonstrating that the sentencing court more likely
than not committed a Johnson error, then we turn to the second step in our analysis:
we ask whether the sentencing court’s error was harmless. See Lewis, 904 F.3d at
873. In making that determination, we ask whether “a sentencing judge, applying
current law” would determine that the petitioner’s previous convictions are for
6
offenses that constitute violent felonies “under one or both of the still-valid ACCA
clauses.” Id. at 873 (emphasis added). If so—i.e., “[i]f a movant would still receive
an ACCA enhancement” under current law—then “the sentencing court’s original
reliance on the now-invalid residual clause was harmless” and the petitioner isn’t
entitled to Johnson relief. Id.
At this second stage of the analysis, the government bears the burden of
demonstrating that any Johnson error was harmless. See United States v. Degeare,
884 F.3d 1241, 1247 (10th Cir. 2018). And to the extent a district court concludes the
government has satisfied that burden, we review this legal conclusion de novo. See
United States v. Ridens, 792 F.3d 1270, 1272 (10th Cir. 2015).
As it turns out, these general ground rules for resolving Johnson claims present
some significant hurdles to Neely’s specific request for relief. Like any other
petitioner in his shoes, Neely needs only three qualifying convictions to trigger the
ACCA’s sentencing enhancement. See § 924(e)(1). But Neely is starting one pace
back from the block: he doesn’t dispute that the sentencing court correctly
characterized his conviction for delivering marijuana as an ACCA predicate. Thus,
Neely needs only two more qualifying convictions before we may affirm the district
court’s order denying his § 2255 motion. See § 924(e)(1), (2)(A). And the district
court determined he has three. That is, in addition to his unchallenged conviction for
delivering marijuana, the district court ruled that each of Neely’s convictions for
(1) burglary, (2) first-degree robbery, and (3) attempted battery constitutes an ACCA
predicate under either the enumerated-offenses clause or the elements clause.
7
Accordingly, the district court not only determined that Neely has the requisite three
convictions; it concluded that he has three qualifying convictions and “one extra
[violent-felony] conviction to spare.” App. vol. 1, 141; see also § 924(e)(1).
The district court’s ruling leaves Neely with a narrow path to reversal. To
prevail on appeal, he must first show by a preponderance of the evidence that the
sentencing court relied on the residual clause to classify as violent felonies at least
two of the three offenses the district court treated as ACCA predicates. If he fails to
make this threshold showing—i.e., if it appears just as likely (or more so) that the
sentencing court relied on the enumerated-offenses clause or the elements clause
(rather than the residual clause) to classify any two of these three offenses as violent
felonies—then Neely can’t demonstrate that “the sentencing court relied on the
residual clause in imposing the ACCA sentence.” Lewis, 904 F.3d at 872 (quoting
Wilfong, 733 F. App’x at 926). And in that case, our analysis comes to an end; we
will affirm the district court’s ruling without reaching the harmless-error question.
See id. at 873 (“Petitioner . . . has not successfully established a Johnson error,
meaning that our analysis never progresses beyond the initial, historical evaluation of
the sentencing court’s decision.”). Further, even assuming Neely can make the
threshold Johnson-error showing with respect to at least two of the three offenses,
that doesn’t necessarily mean we will reverse the district court’s order. It merely
means we will proceed to the second step of our Johnson analysis. See id. at 874.
And at that step, we will affirm—even in the face of an established Johnson error—
so long as the government can show the error was harmless. See id.
8
For the reasons discussed below, we conclude that Neely fails to successfully
navigate this narrow path to relief. Specifically, he fails to show the sentencing court
more likely than not relied on the residual clause to classify Tennessee burglary as a
violent felony. And even assuming the sentencing court relied on the residual clause
to classify Nevada attempted battery as a violent felony, we conclude that error was
harmless. Thus, we need not and do not address whether the sentencing court
committed Johnson error—harmless or otherwise—in classifying Neely’s “extra . . .
conviction” for first-degree robbery as a violent-felony conviction. R. vol. 1, 141; see
also § 924(e)(1).
I. Neely’s Tennessee Burglary Conviction
We begin our analysis with Neely’s 1983 Tennessee conviction for third-
degree burglary. More specifically, we begin by asking whether Neely can
demonstrate by a preponderance of the evidence that the sentencing court relied on
the residual clause to classify that offense as a violent felony. See Lewis, 904 F.3d at
872; Driscoll, 892 F.3d at 1135.
Neely concedes the sentencing court never “clear[ly] pronounce[d]” that it was
relying on the residual clause to classify his burglary conviction as an ACCA
predicate. Lewis, 904 F.3d at 871. But he nevertheless insists that “the background
legal environment at the time of sentencing” indicates it did so. Aplt. Supp. Br. 3.
The government disagrees. It alleges that at the time of Neely’s 2013 sentencing,
third-degree burglary clearly satisfied the enumerated-offenses clause, thus rendering
9
it unnecessary for the sentencing court to rely on the residual clause. See Snyder, 871
F.3d at 1130. For the reasons discussed below, we agree with the government.
For purposes of satisfying the ACCA’s enumerated-offenses clause, burglary
is “any crime, regardless of its exact definition or label, having the basic elements of
unlawful or unprivileged entry into, or remaining in, a building or structure, with
intent to commit a crime.” United States v. Ramon Silva, 608 F.3d 663, 665 (10th Cir.
2010) (quoting Taylor v. United States, 495 U.S. 575, 599 (1990)), abrogated by
Mathis v. United States, 136 S. Ct. 2243 (2016). And at the time of Neely’s offense,
Tennessee defined third-degree burglary as “the breaking and entering into a business
house, outhouse, or any other house of another, other than [a] dwelling house, with
the intent to commit a felony.” Tenn. Code Ann. § 39-3-404(a)(1) (1982) (repealed
1989).
Despite the apparent overlap between these two sets of elements, Neely asserts
that Tennessee’s definition of third-degree burglary is categorically broader than the
generic definition of burglary because the former “includes the locational alternatives
‘outhouse’ and ‘any other house.’”2 Aplt. Br. 8 (quoting § 39-3-404(a)(1)); cf. also
Taylor, 495 U.S. at 599 (noting that some states “define burglary more broadly” by
“including places, such as automobiles and vending machines, other than buildings”);
Ramon Silva, 608 F.3d at 665 (“In determining whether a defendant’s prior
2
We need not resolve whether Tennessee’s inclusion of these locational
alternatives renders its definition of third-degree burglary categorially broader than
the generic definition of burglary. Even assuming Neely is correct on this point, he
isn’t entitled to relief for the reasons discussed in the text.
10
conviction meets this generic definition of burglary, we employ a categorical
approach that ‘look[s] only to the fact of conviction and the statutory definition of the
prior offense.’” (alteration in original) (quoting Taylor, 495 U.S. at 602)). And Neely
further asserts that under the Supreme Court’s 2016 decision in Mathis, these
locational alternatives are means rather than elements, thus rendering the modified
categorical approach unavailable. “Under that approach, a sentencing court looks”
beyond the language of the relevant state statute “to a limited class of documents (for
example, the indictment, jury instructions, or plea agreement and colloquy) to
determine what crime, with what elements, a defendant was convicted of” and “then
compare[s] that crime, as the categorical approach commands, with the relevant
generic offense.” Mathis, 136 S. Ct. at 2249; see also id. at 2256 (explaining that
modified categorical approach isn’t available if statutory alternatives are means
rather than elements).
But as the government points out, the Supreme Court didn’t decide Mathis
until 2016. Thus, Mathis wasn’t part of “the relevant background legal environment”
at the time of Neely’s 2013 sentencing. Snyder, 871 F.3d at 1129 (“[T]he relevant
background legal environment is, so to speak, a ‘snapshot’ of what the controlling
law was at the time of sentencing and does not take into account post-sentencing
decisions that may have clarified or corrected pre-sentencing decisions.”). And that
means we cannot consider Mathis in evaluating whether, as a threshold matter, the
sentencing court likely relied on the residual clause to classify Neely’s third-degree
burglary conviction as an ACCA predicate. See Lewis, 904 F.3d at 873 (“Mathis [is]
11
only applicable at the harmless[-]error stage of review, once the movant has
established the existence of a Johnson error.”).
Instead, we conclude that at the time of Neely’s 2013 sentencing, it “would
have been permissible for the [sentencing] court to” go beyond the text of the third-
degree burglary statute and “examine the underlying charging documents and/or jury
instructions to determine if” Neely “was charged only with burglary of buildings.”
Lewis, 904 F.3d at 871 (quoting Snyder, 871 F.3d at 1130); cf. also Taylor, 495 U.S.
at 602 (“For example, in a [s]tate whose burglary statutes include entry of an
automobile as well as a building, if the indictment or information and jury
instructions show that the defendant was charged only with a burglary of a building,
and that the jury necessarily had to find an entry of a building to convict, then the
[g]overnment should be allowed to use the conviction for enhancement.”). What’s
more, it appears that’s precisely what the sentencing court did here. The PSR
indicates that Neely was charged with and convicted of burglarizing “a business
house.” § 39-3-404(a)(1). Further, when the sentencing court listed the offenses that
it believed “qualif[ied] as violent felonies” for ACCA purposes, it expressly referred
to Neely’s conviction for “burglary of a business.” Aplee. Supp. R. vol. 1, 13.
Notably, Neely doesn’t dispute that both the PSR and the charging document
indicate he was convicted of burglarizing “a business house.” § 39-3-404(a)(1). Nor
does he dispute that burglary of “a business house” categorically corresponds with
generic burglary. Id.; see also Taylor, 495 U.S. at 599. Accordingly, it appears “there
would have been little dispute at the time of” Neely’s 2013 sentencing that his
12
burglary conviction constituted an ACCA predicate under the enumerated-offenses
clause, thus rendering it unnecessary for the sentencing court to “rel[y] on the
residual clause.” Snyder, 871 F.3d at 1129–30.
Nevertheless, Neely asks us to conclude otherwise. In doing so, he first points
out that the Supreme Court heard argument in Descamps v. United States, 570 U.S.
254 (2013), on January 7, 2013—more than two months before his March 21, 2013
sentencing. And the Court went on to hold in Descamps that “sentencing courts may
not apply the modified categorical approach when the crime of which the defendant
was convicted has a single, indivisible set of elements.” 570 U.S. at 258. That is,
under Descamps, sentencing courts can’t “look beyond the . . . elements” of an
indivisible statute to the charging document or jury instructions “to determine which
of a statute’s alternative elements formed the basis of the defendant’s prior
conviction.” Id. at 261–62. Thus, in light of this “changing legal landscape,” Neely
posits that “there was some question about the continued application of the modified
categorical approach to burglary convictions” at the time of his sentencing. Aplt.
Supp. Br. 4–5.
For three reasons, we reject this argument. First, regardless of when the
Supreme Court heard argument in Descamps, the Court didn’t issue its opinion in that
case until June 20, 2013—almost three months after Neely’s March 21, 2013
sentencing hearing. So although the rule announced in Descamps may have been
looming on the horizon at that point, it wasn’t yet part of the “legal landscape” for
purposes of determining whether the sentencing court relied on the residual clause to
13
classify third-degree burglary as a violent felony. Aplt. Supp. Br. 4; see also Snyder,
871 F.3d at 1129 (“[T]he relevant background legal environment . . . does not take
into account post-sentencing decisions that may have clarified or corrected pre-
sentencing decisions.” (emphasis added)). Accordingly, Descamps is, like Mathis,
“only applicable at the harmless[-]error stage of review, once the movant has
established the existence of a Johnson error.” Lewis, 904 F.3d at 873.
Second, and relatedly, Neely’s Descamps argument is really a Mathis
argument in disguise. Neely is correct that Descamps precluded sentencing courts
from applying the modified categorical approach to so-called “indivisible statutes.”
570 U.S. at 260, 271. But in arguing that § 39-3-404(a)(1) is indivisible (such that the
rule announced in Descamps rule would apply here) Neely relies on Mathis.3 And for
reasons we have already explained, such reliance is foreclosed at this step of our
analysis. See Lewis, 904 F.3d at 873.
Third, to the extent Neely suggests the sentencing court might have correctly
read the tea leaves of oral argument in Descamps to portend the result in Mathis and
then opted to preemptively “rel[y] on the expansiveness of the residual clause rather
3
Indeed, Descamps arguably intimated that burglary statutes containing
locational alternatives were divisible. Compare Descamps, 570 U.S. at 257 (“If one
alternative (say, a building) matches an element in the generic offense, but the other
(say, an automobile) does not, the 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.”), with Mathis, 136 S. Ct. at 2250, 2253, 2256 (holding that state
burglary statute containing locational alternatives was indivisible, thus rendering
modified categorical approach unavailable).
14
than” the enumerated-offenses clause, the sentencing record belies such speculation.
Aplt. Supp. Br. 5. As we have already discussed, the sentencing court expressly
acknowledged that Neely’s conviction was for “burglary of a business,” Aplee. Supp.
R. vol. 1, 13—thus indicating the sentencing court (1) looked beyond the language of
the third-degree burglary statute to the relevant documents; (2) deduced from those
documents that that Neely was charged with and convicted of “burglary of a
building”; and (3) categorized that offense as a violent felony under the enumerated-
offenses clause, Taylor, 495 U.S. at 602; see also § 924(e)(2)(B)(ii).
Undeterred, Neely argues that one additional aspect of “the relevant
background legal environment” indicates the sentencing court more likely than not
relied on the residual clause to classify third-degree burglary as a violent felony.
Snyder, 871 F.3d at 1124. He notes that at the time of sentencing, the Supreme Court
had already held that “attempted burglary, as defined by Florida law” satisfied the
residual clause. James v. United States, 550 U.S. 192, 195, 212 (2007), overruled by
Johnson, 135 S. Ct. 2551. And “[i]f attempted burglaries involved a ‘serious potential
risk of physical injury,’ as the Supreme Court held in James,” Neely posits, then “it
stands to reason that completed burglaries would also pose a similar risk, and thus
would unquestionably qualify under the residual clause” at the time of sentencing.
Aplt. Supp. Br. 6 (emphases added) (quoting James, 550 U.S. at 196)).
Although not without appeal, this argument also fails. The James Court only
found it necessary to address whether attempted burglary satisfied the residual clause
because that offense clearly did not satisfy the enumerated-offenses clause. See
15
James, 550 U.S. at 197 (“Attempted burglary is not arson or extortion. It does not
involve the use of explosives. And it is not ‘burglary’ [under the enumerated-offenses
clause] because it does not meet the definition of burglary . . . that this Court set forth
in [Taylor]: ‘an unlawful or unprivileged entry into, or remaining in, a building or
other structure, with intent to commit a crime.’” (quoting Taylor, 495 U.S. at 598)).
In other words, the residual clause was only at play in James because attempted
burglary isn’t completed generic burglary and therefore attempted burglary doesn’t
satisfy the enumerated-offenses clause.
Here, on the other hand, Neely’s conviction is for completed burglary. And
Neely doesn’t dispute that, with a quick glance at either the PSR or the charging
document, the sentencing court would have been able to discern that the completed
burglary Neely was convicted of committing “meet[s] the definition of burglary” the
Supreme Court “set forth in [Taylor].” Id.; see also Snyder, 871 F.3d at 1130. Thus,
contrary to Neely’s argument, it was the enumerated-offenses clause—and not the
residual clause—that provided the sentencing court in this case with “the analytical
path of least resistance.” Aplt. Supp. Br. 5; see also United States v. Robinson, 720 F.
App’x 946, 951 (10th Cir.) (unpublished) (“In contrast [to the conviction at issue in
James], [petitioner’s] conviction was for burglary, not attempted burglary, and
therefore it was eligible for consideration under the enumerated-offenses clause. In
these circumstances, James does not indicate that the sentencing court relied on the
16
residual clause rather than the enumerated-offenses clause in sentencing
[petitioner].”), cert. denied, 139 S. Ct. 64 (2018).4
In short, both the record and “the relevant background legal environment”
indicate the sentencing court relied on the enumerated-offenses clause to classify
Neely’s third-degree burglary conviction as an ACCA predicate. Snyder, 871 F.3d at
1124. And because Neely therefore fails to show by a preponderance of the evidence
that the sentencing court committed a Johnson error vis-à-vis this particular
conviction, the district court was correct to treat it as a viable ACCA predicate for
purposes of denying Neely’s § 2255 conviction. See Lewis, 904 F.3d at 871–72
(holding that petitioner failed to show that “sentencing court more likely than not
relied on the residual clause in classifying his Kansas burglary” as an ACCA
predicate where “charging documents” indicated that petitioner was convicted of
burglarizing a building); Washington, 890 F.3d at 897–98, 897 n.6 (reaching same
conclusion where charging document and PSR indicated defendant was convicted of
burglarizing a building); United States v. Murphy, 887 F.3d 1064, 1068–69 (10th
Cir.) (holding that “there would have been no need to rely on the residual clause” to
classify petitioner’s burglary convictions as ACCA predicates where indictments
4
Although Robinson is unpublished, we find its reasoning persuasive and
adopt it here. See United States v. Engles, 779 F.3d 1161, 1162–63, 1162 n.1 (10th
Cir. 2015) (“Although unpublished orders and opinions generally are not considered
binding precedent . . . such an order or opinion may be relied on for the purpose of
disposing of the issue presented if it has persuasive value with respect to a material
issue in a case and would assist the court in its disposition.” (citing 10th Cir. R.
32.1)).
17
indicated that each conviction was for burglarizing a building), cert. denied, 139 S.
Ct. 414 (2018); Snyder, 871 F.3d at 1129–30 (holding that petitioner failed to
demonstrate sentencing court committed Johnson error in classifying his burglary
conviction as ACCA predicate where PSR indicated that petitioner “was charged only
with burglary of buildings”).
Notably, in light of the district court’s unchallenged finding that Neely’s
conviction for delivering marijuana constitutes an ACCA predicate, this means Neely
has at least two of the three convictions necessary to uphold the sentencing
enhancement. See § 924(e)(1) (requiring only “three previous convictions . . . for a
violent felony or a serious drug offense, or both”).
II. Neely’s Nevada Attempted Battery Conviction
Neely next asserts that in denying his § 2255 motion, the district court erred in
relying on his 2007 Nevada conviction for attempting to commit battery resulting in
substantial bodily harm. The government disagrees. It insists that the sentencing
court likely relied on the elements clause to classify Neely’s attempted-battery
conviction as an ACCA predicate. Alternatively, even assuming the sentencing court
relied on the residual clause (and thus committed Johnson error), the government
argues that the sentencing court’s error was harmless because Neely’s attempted-
battery conviction satisfies the elements clause under current law. See Lewis, 904
F.3d at 873.
For purposes of evaluating the parties’ disagreement on this point, we opt to
(1) assume without deciding that the sentencing court relied on the residual clause to
18
classify Neely’s attempted-battery conviction as an ACCA predicate and (2) proceed
directly to the harmless-error question. That is, we ask whether “a sentencing judge,
applying current law” would determine that Neely’s conviction satisfies “one or both
of the still-valid ACCA clauses.” Id. at 873. In answering that question, we begin
with the language of the relevant state statutes.
Neely was convicted of attempted battery under three provisions of Nevada
law: (1) Nev. Rev. Stat. Ann. § 200.481(1)(a) (2003), which defined battery as “any
willful and unlawful use of force or violence upon the person of another”; (2) Nev.
Rev. Stat. Ann. § 200.481(2)(b) (2003), which classified battery as a felony if
“substantial bodily harm to the victim result[ed]”; and (3) Nev. Rev. Stat. Ann.
§ 193.330(1) (2003), which stated, “An act done with the intent to commit a crime,
and tending but failing to accomplish it, is an attempt to commit that crime.”
Critically, Neely doesn’t dispute that under current law, the completed Nevada
offense of battery resulting in substantial bodily harm satisfies the elements clause.
More specifically, he doesn’t dispute that under current law, the completed offense
“has as an element the use . . . of physical force against the person of another.”
§ 924(e)(2)(B)(i); see also United States v. Castleman, 572 U.S. 157, 169 (2014)
(holding that for purposes of 18 U.S.C. § 922(g)(9)’s elements clause, “the knowing
or intentional causation of bodily injury necessarily involves the use of physical
force”); United States v. Ontiveros, 875 F.3d 533, 538 (10th Cir. 2017) (extending
Castleman to § 924(e)(2)(B)(i)’s elements clause), cert. denied, 138 S. Ct. 2005
(2018). And as the government points out, when a completed crime has as an element
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the actual use of physical force, it stands to reason that any attempt to commit that
completed crime necessarily has as an element the attempted use of such physical
force—thus satisfying the elements clause. See § 924(e)(2)(B)(i) (defining violent
felony, in relevant part, as offense that “has as an element the . . . attempted use . . .
of physical force against the person of another” (emphasis added)). Indeed, at least
three of our sibling circuits have employed this very logic. See Hill v. United States,
877 F.3d 717, 719 (7th Cir. 2017), cert. denied, 139 S. Ct. 352 (2018); United States
v. Johnson, 688 F. App’x 404, 405–06 (8th Cir. 2017) (unpublished); cf. United
States v. St. Hubert, 909 F.3d 335, 351–52 (11th Cir. 2018). And this court has twice
done the same, albeit in unpublished decisions. See United States v. Rinker, 746 F.
App’x 769, 771–72 (10th Cir. 2018) (unpublished); United States v. Dean, 724 F.
App’x 681, 682 (10th Cir. 2018) (unpublished).5
Despite the undeniable logic of this approach, Neely insists that two aspects of
Nevada law place the offense of attempting to commit battery resulting in substantial
bodily harm outside the scope of the elements clause—even if the completed offense
falls within that clause’s ambit. First, Neely asserts that attempting to commit battery
resulting in substantial bodily harm doesn’t satisfy the elements clause because
Nevada’s definition of attempt doesn’t “meet the ‘probable[-]desistance test.’” Aplt.
Br. 22 (quoting Herbert Wechsler et. al., The Treatment of Inchoate Crimes in the
Model Penal Code of the American Law Institute: Attempt, Solicitation, and
5
We find persuasive the reasoning of these unpublished cases. See 10th Cir. R.
32.1; Engles, 779 F.3d at 1162–63, 1162 n.1.
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Conspiracy, 61 Colum. L. Rev. 571, 589 (1961)). But as the government points out,
Neely didn’t raise this probable-desistance argument below. And he doesn’t make a
plain-error argument on appeal. Accordingly, we treat Neely’s probable-desistance
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).
Second, Neely insists that under Nevada law, attempting to commit battery
resulting in substantial bodily harm doesn’t satisfy the elements clause because
(1) Nevada’s definition of attempt “requires only an intent to commit the crime and
. . . a direct but ineffectual act toward [its] commission,” and (2) the requisite “direct
but ineffectual act” need not itself “be forcible in nature.” Aplt. Br. 18–19.
Unlike his probable-desistance argument, Neely made this argument below.
But as the government points out, he didn’t include it in his initial § 2255 motion.
Instead, Neely advanced this argument for the first time in his reply to the
government’s response to his motion. What’s more, the district court declined to
address it. And once again, Neely fails to argue for plain error. Thus, the government
asserts we should decline to consider this argument as well. See Singleton v. Wulff,
428 U.S. 106, 120 (1976) (“It is the general rule, of course, that a federal appellate
court does not consider an issue not passed upon below.”); Kearn, 863 F.3d at 1313;
United States v. Lee Vang Lor, 706 F.3d 1252, 1256 (10th Cir. 2013).
In response, Neely doesn’t dispute that he failed to preserve this argument in
district court. See Lee Vang Lor, 706 F.3d at 1256. But he suggests we should
nevertheless reach the argument and reverse on this basis because—according to
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Neely—“proper resolution” of his argument “is beyond any doubt” and “injustice
might otherwise result.” Rep. Br. 17 (quoting Wulff, 428 U.S. at 121).
We don’t disagree that we have discretion to consider unpreserved arguments
like the one Neely advances here. But such arguments “may form a basis for reversal
only if the appellant can satisfy the elements of the plain[-]error standard of review.”
Richison, 634 F.3d at 1130 (emphasis omitted). And again, Neely makes no attempt
to show he can satisfy that test here. Thus, we treat his attempt argument as waived
and decline to consider it. See Kearn, 863 F.3d at 1313; Richison, 634 F.3d at 1128
(expressly rejecting appellant’s assertion that “we may forgo plain[-]error review
entirely” so long as “correct resolution of” an unpreserved argument “is beyond a
reasonable doubt and the failure to intervene would result in a miscarriage of
justice”).
In sum, the government persuasively argues that even assuming the sentencing
court relied on the residual clause to classify Neely’s attempted-battery conviction as
an ACCA predicate, that error was harmless. And Neely has waived the only
arguments he presents to the contrary. Accordingly, we decline to disturb the district
court’s determination that Neely’s attempted-battery conviction remains a viable
ACCA predicate post-Johnson. See Lewis, 904 F.3d at 873.
This means we will likewise leave undisturbed the district court’s ultimate
ruling that Neely isn’t entitled to § 2255 relief. The district court based that ruling, in
relevant part, on Neely’s convictions for (1) delivering marijuana, (2) third-degree
burglary, and (3) attempted battery. See § 924(e)(1) (requiring only “three previous
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convictions . . . for a violent felony or a serious drug offense, or both”). Because we
see no indication that the district court committed reversible error in relying on any
of these three convictions, we affirm the district court’s order denying Neely’s
§ 2255 motion.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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