Appeals from the United States District Court for the Western
District of Oklahoma (D.C. Nos. 5:09-CR-00128-HE-l &
E. Wackenheim, Assistant Federal Public Defender, Oklahoma
City, Oklahoma for Defendant-Appellant.
W. Creager, Assistant United States Attorney (Robert J.
Troester, Acting United States Attorney, with him on the
briefs), Oklahoma City, Oklahoma for Plaintiff-Appellee.
HARTZ, HOLMES, and BACHARACH, Circuit Judges
BACHARACH, CIRCUIT JUDGE.
sentences can be affected by a defendant's classification
as an armed career criminal or a career offender. Both
classifications underlie these appeals, which grew out of the
sentencing and resentencing of Mr. Darius Johnson for
possessing cocaine with intent to distribute (21 U.S.C.
§ 841(a)(1)) and being a felon in possession of a
firearm (18 U.S.C. § 922(g)).
these offenses, the district court initially imposed
concurrent prison terms of 192 months, relying in part on Mr.
Johnson's classification as an armed career criminal
because of three prior convictions for violent
felonies. The district court later vacated this
sentence, concluding that one of the three prior convictions
had not involved a violent felony. Having vacated the
sentence, the court resentenced Mr. Johnson to concurrent
prison terms of 120 months and 128 months, relying in part on
his classification as a career offender because of two prior
convictions for crimes of violence.
government appeals the vacatur of the initial sentence, and
Mr. Johnson appeals the new sentence. We affirm in both
Mr. Johnson had three prior felony
convictions, creating issues involving his
status as an armed career criminal and a career
the Armed Career Criminal Act, defendants are classified as
armed career criminals after being convicted of three violent
felonies. 18 U.S.C. § 924(e)(1). When an armed career
criminal is convicted of unlawfully possessing a firearm
(after a prior felony conviction), the Act creates a
mandatory minimum sentence of fifteen years'
imprisonment. Id.; see 18 U.S.C. § 922(g)(1).
the federal sentencing guidelines, defendants are classified
as career offenders after two convictions for felonies
constituting crimes of violence. USSG § 4B 1.1(a). This
classification triggers enhancement of the guideline range in
future sentences. USSG § 4B 1.1(b).
determine whether Mr. Johnson was an armed career criminal
and a career offender, we must consider his three prior
felony convictions in Oklahoma:
1. use of a vehicle to facilitate the intentional discharge
of a firearm
2. assault and battery with a dangerous weapon
3. assault and battery on a law enforcement officer
three prior convictions present two issues:
1. Did the three prior convictions involve violent felonies,
triggering classification as an armed career criminal?
2. Did two or more of the prior convictions involve crimes of
violence, triggering classification as a career offender?
After sentencing Mr. Johnson as an armed career criminal, the
district court ordered vacatur and
resentencing based on a new Supreme Court opinion.
first issue grew out of a new Supreme Court opinion
invalidating part of the Armed Career Criminal Act.
Johnson v. United States, 135 S.Ct. 2551, 2556-63
(2015). In light of this opinion, the district court
concluded that assault and battery on a law enforcement
officer could no longer constitute a violent felony,
preventing application of the 15-year mandatory minimum. But
the court found that Mr. Johnson had prior convictions in
Oklahoma for two crimes of violence:
1. assault and battery with a dangerous weapon
2. use of a vehicle to facilitate the intentional discharge
of a firearm Given these convictions, the district court
resentenced Mr. Johnson as a career offender under the
appeal, Mr. Johnson challenges his classification as a career
offender. He concedes one prior conviction for a crime of
violence (assault and battery with a dangerous weapon). But
he denies that the use of a vehicle to facilitate the
intentional discharge of a firearm would constitute a second
crime of violence.
own appeal, the government contends that Mr. Johnson had
three convictions for violent felonies, triggering a
mandatory minimum sentence of fifteen years' imprisonment
for possessing a firearm after a prior felony conviction. Mr.
Johnson does not dispute the existence of two prior
convictions for violent felonies, but the government contends
that he had a third one: assault and battery on a law
enforcement officer. Pointing to this conviction, the
government argues that Mr. Johnson qualifies as an armed
The government's appeal: Battery on a law enforcement
officer is not a violent felony, precluding application of
the Armed Career Criminal Act's 15-year mandatory
Johnson's status as an armed career criminal turns on his
past conviction for assault and battery on a law enforcement
officer. This conviction had been based on Okla. Stat. tit.
21, § 649(B), which criminalizes
• "battery" or "assault and battery"
on a law enforcement officer
• while the officer was performing his or her duties.
Okla. Stat. tit. 21, § 649(B). We compare the
state's definition of this crime to the Armed Career
Criminal Act's definition of a "violent
felony." Under the Act, a prior crime could qualify as a
violent felony under the Elements Clause, the
Enumerated-Offense Clause, or the Residual Clause. 18 U.S.C.
§ 924(e)(2)(B). These clauses provide three alternative
definitions of a violent felony:
1. Elements Clause: An element of the offense includes the
use, attempted use, or threatened use of physical force
against another person. 18 U.S.C. § 924(e)(2)(B)(i).
2. Enumerated-Offense Clause: The offense is burglary, arson,
extortion, or a crime involving the use of explosives. 18
U.S.C. § 924(e)(2)(B)(ii).
3. Residual Clause: The crime otherwise creates "a
serious potential risk of physical injury to another."
government concedes that in deciding on the initial sentence,
the district court had invoked the Residual Clause, which was
later invalidated as unconstitutionally vague. Johnson v.
United States, 135 S.Ct. 2551, 2556-63 (2015). Given the
invalidity of the Residual Clause, the government concedes
that the district court had erred in imposing the initial
sentence. Despite this concession, the government argues that
the error was harmless because § 649(B) qualifies as a
violent felony under the Elements Clause.
may qualify as a violent felony under either the modified
categorical approach or the categorical approach. United
States v. Titties, 852 F.3d 1257, 1265 (10th Cir. 2017).
We conclude that the modified categorical approach does not
apply here because the statute of conviction-§ 649(B)-is
indivisible. We thus conclude that
• a conviction under § 649(B) does not fall within
the Armed Career Criminal Act's Elements Clause and
• Mr. Johnson was not an armed career criminal subject
to the 15-year mandatory minimum.