United States v. Burtons
696 F. App'x 372
| 10th Cir. | 2017Background
- Travonn Burtons pleaded guilty to being a felon in possession of a firearm and received a 180-month sentence; after collateral litigation his conviction/sentence were vacated and he pleaded guilty again and received the same sentence.
- The present § 2255 motion challenged an ACCA enhancement that relied on a prior Oklahoma conviction for assault and battery with a deadly weapon (Okla. Stat. tit. 21, § 652(C) (1994)).
- After Johnson v. United States invalidated the ACCA residual clause, Burtons argued his state conviction no longer qualified as a "violent felony."
- The government argued the prior Oklahoma conviction still qualified under the ACCA elements clause (offense "has as an element the use, attempted use, or threatened use of physical force").
- The district court applied the modified categorical approach, found the Oklahoma statute divisible, and concluded the specific alternative (assault and battery with a deadly weapon) satisfies the elements clause; it denied § 2255 relief.
- On appeal, Burtons invoked Mathis (distinguishing elements from means) and argued the statute is indivisible and thus his conviction cannot categorically qualify; the Tenth Circuit assumed Mathis applied retroactively and affirmed.
Issues
| Issue | Burtons' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the Oklahoma statute § 652(C) is divisible (elements) or indivisible (means) for application of the modified categorical approach | § 652(C)’s four alternatives are "means," so statute is indivisible and modified categorical approach doesn't apply | § 652(C) contains alternative elements; statute is divisible and the modified categorical approach may be used | Divisible: Oklahoma jury instructions treat alternatives as separate elements; modified categorical approach properly applied |
| Whether Mathis applies retroactively on collateral review | Mathis should be applied and would show indivisibility (raised in reply) | Mathis distinction supports divisibility here; government relied on Mathis in briefing | Court assumed (without deciding) Mathis retroactive; resolved case on merits in favor of government |
| Whether the specific offense (assault and battery with a deadly weapon under § 652(C)) satisfies ACCA’s elements clause | Oklahoma simple battery/assault can be slight touching and thus not "physical force" as defined in Curtis Johnson; deadly-weapon language could encompass non-violent contact | Assault/battery coupled with a deadly/dangerous weapon constitutes violent force and meets elements clause (Taylor precedent) | Holds that assault and battery with a deadly weapon does have as an element the use/attempted/threatened use of physical force and qualifies as a violent felony under the elements clause |
| Whether Burtons is entitled to § 2255 relief after Johnson invalidated the residual clause | Because the prior conviction no longer counts under the residual clause, he should get relief unless it fails the elements clause | Even without the residual clause, the prior conviction qualifies under the elements clause, so no relief | Denial of § 2255 motion affirmed: the prior Oklahoma conviction qualifies as a violent felony under the elements clause |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA residual clause as unconstitutionally vague)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing statutory alternative elements from means for divisibility/modifed categorical approach)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (explaining modified categorical approach and its application to divisible statutes)
- Johnson v. United States (Curtis Johnson), 559 U.S. 133 (2010) (defining "physical force" in ACCA context as violent force capable of causing physical pain or injury)
- United States v. Taylor, 843 F.3d 1215 (10th Cir. 2016) (holding Oklahoma assault/battery with a dangerous weapon satisfies elements-clause violence requirement)