United States v. Johnson, 911 F.3d 1062

Background

Darius Johnson was convicted in federal court for possession with intent to distribute cocaine (21 U.S.C. §841(a)(1)) and being a felon in possession of a firearm (18 U.S.C. §922(g)).
At initial sentencing the district court classified Johnson as an Armed Career Criminal (ACCA) based on three prior Oklahoma felony convictions, imposing concurrent 192-month terms that relied in part on the ACCA 15-year mandatory minimum.
After the Supreme Court invalidated the ACCA Residual Clause (Johnson v. United States), the district court vacated the 192-month sentence, concluding one prior conviction (assault and battery on a law enforcement officer under Okla. Stat. tit. 21, § 649(B)) might not be a violent felony.
On resentencing the court classified Johnson as a career offender under the Sentencing Guidelines based on two prior violent convictions (assault and battery with a dangerous weapon; use of a vehicle to facilitate intentional discharge of a firearm), imposing concurrent 120- and 128-month terms.
The government appealed the vacatur of the initial sentence; Johnson appealed the new sentence challenging the vehicle-to-facilitate-firearm conviction as a crime of violence.
The Tenth Circuit affirmed both appeals: it held §649(B) is indivisible and can encompass non-violent battery (so ACCA classification was not harmless error), and it upheld the career-offender enhancement because the vehicle-facilitate-firearm conviction is a crime of violence under circuit precedent.

Issues

Issue	Plaintiff's Argument (Government)	Defendant's Argument (Johnson)	Held
Whether Okla. Stat. tit. 21, §649(B) (assault/battery on officer) is a violent felony under ACCA Elements Clause	§649(B) is divisible; the conviction necessarily involved force qualifying under the Elements Clause, so ACCA applies	§649(B) is indivisible and can criminalize mere offensive touching (battery), so it need not be a violent felony	§649(B) is indivisible; conviction could be simple battery, which need not involve violent force; ACCA classification was not harmless and initial sentence vacated
Whether the modified categorical approach applies to §649(B)	Modified categorical approach applies because statutory alternatives are elements	Modified categorical approach does not apply because alternatives are means/indivisible	Modified categorical approach unavailable due to statutory indivisibility
Whether a conviction under §649(B) categorically involves the use of violent physical force	§649(B) elements necessarily require violent force against an officer	Battery under Oklahoma law can be mere offensive touching and thus need not involve violent force	§649(B) does not categorically require violent force; it is not a violent felony under the Elements Clause
Whether Oklahoma's offense of using a vehicle to facilitate intentional discharge of a firearm is a crime of violence for Guidelines career-offender purposes	It is a crime of violence (and Johnson conceded he was bound by Hammons)	Johnson argued it was not, but conceded circuit precedent controlled	Under Tenth Circuit precedent (Hammons), the vehicle-facilitate-firearm offense is a crime of violence; career-offender enhancement affirmed

Key Cases Cited

Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA Residual Clause)
Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means; divisibility rule)
Descamps v. United States, 570 U.S. 254 (2013) (limits on using modified categorical approach)
Shepard v. United States, 544 U.S. 13 (2005) (permissible documents for modified categorical inquiry)
United States v. Hammons, 862 F.3d 1052 (10th Cir. 2017) (vehicle-to-facilitate-firearm offense qualifies as violent felony/crime of violence)
United States v. Smith, 652 F.3d 1244 (10th Cir. 2011) (Oklahoma battery may be satisfied by slight touching; not necessarily violent force)
United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) (discussion of categorical vs. modified categorical approaches)