United States v. Mason
709 F. App'x 898
| 10th Cir. | 2017Background
- Defendant Billy Ray Mason pled guilty in 2010 to being a felon in possession of a firearm; the district court applied the ACCA and sentenced him to 188 months based on three prior predicates.
- Relevant prior convictions: juvenile assault and battery with a dangerous weapon (1995), larceny from a person (2001), and two counts of assault and battery upon a police officer under Okla. Stat. tit. 21, § 649(B) (2005).
- After Johnson v. United States (2015) invalidated the ACCA residual clause, Mason filed a § 2255 motion arguing his Oklahoma convictions no longer qualified as ACCA violent felonies.
- The government conceded larceny from a person no longer qualified but argued § 649(B) assault-and-battery-on-an-officer still qualified under the ACCA elements clause.
- The district court applied the modified categorical approach, found Mason was convicted of “assault and battery” (by kicking), and denied § 2255 relief; Mason appealed.
- The Tenth Circuit reversed, holding § 649(B) does not necessarily have as an element the use, attempted use, or threatened use of violent physical force as defined in Johnson I, so it cannot categorically qualify as an ACCA violent felony.
Issues
| Issue | Mason's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Oklahoma § 649(B) assault and battery upon a police officer is a "violent felony" under the ACCA elements clause | § 649(B) includes "assault and battery" which (via "corporal hurt") requires bodily pain or injury and thus meets Johnson I's "physical force" definition | § 649(B) can be violated by "assault and battery" (and Mason was convicted of that), and the facts (kicking) show violent force | Held: No. § 649(B) does not categorically require violent force; under Oklahoma law "assault and battery" equates to battery, which may be satisfied by the slightest touching and thus fails the elements clause. |
| Whether the modified categorical approach could be used to consult charging documents and factual allegations here | Mason argued the court must consider the statute's least conduct; facts of the prior act are irrelevant beyond identifying statutory alternative | Govt argued the modified categorical approach allows limited document review and the charging instrument shows an "assault and battery by kicking" (violent) | Held: The modified categorical approach may identify which statutory alternative formed the conviction, but it cannot be used to rely on the underlying factual conduct when the statute's elements (as interpreted by the OCCA) criminalize non-violent touching. |
| Effect of Descamps and related Tenth Circuit precedent (Smith, Taylor) | Mason relied on Descamps and Smith to show Oklahoma assault-and-battery statutes do not meet ACCA elements clause | Government pointed to Taylor (dangerous-weapon variant) and argued § 649(B) could be treated as divisible and the assault alternative requires violent force | Held: Descamps limits inquiry to statutory elements (or alternatives) as interpreted by the state court; Smith controls because Oklahoma law treats "assault and battery" as equivalent to battery (slightest touching). Taylor distinguished because it involved a dangerous-weapon element absent in § 649(B). |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (defined "physical force" in ACCA elements clause as "violent force")
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits inquiry to statutory elements; modified categorical approach only identifies which alternative element was the basis of conviction)
- Welch v. United States, 136 S. Ct. 1257 (2016) (made Johnson II retroactive on collateral review)
- United States v. Smith, 652 F.3d 1244 (10th Cir. 2011) (held Oklahoma assault and battery did not satisfy ACCA elements clause because battery can be the slightest touching)
- United States v. Taylor, 843 F.3d 1215 (10th Cir. 2016) (upheld conviction under ACCA elements clause for assault and battery with a dangerous weapon where the weapon element ensured violent force)
- Steele v. State, 778 P.2d 929 (Okla. Crim. App. 1989) (OCCA held only the slightest touching is necessary to constitute battery under Oklahoma law)