United States v. Winrow, 49 F.4th 1372

Michael Winrow pled guilty to being a felon in possession of a firearm and was sentenced under the Armed Career Criminal Act (ACCA) to 188 months based on three predicate convictions.
Two of the predicates were Oklahoma aggravated assault and battery convictions under Okla. Stat. tit. 21, § 646.
Section 646 contains two alternative aggravating circumstances: (A)(1) great bodily injury inflicted; and (A)(2) committed by a person of robust health upon one who is aged, decrepit, or incapacitated.
The ACCA’s elements (force) clause applies if a predicate offense “has as an element the use, attempted use, or threatened use of physical force.” The court applies a categorical approach (and the modified categorical approach only if the statute is divisible).
The parties disputed (1) whether § 646 is divisible (elements vs means) and (2) whether § 646 is categorically a violent felony because Oklahoma law allows conviction on a slightest touching.
The Tenth Circuit held § 646 indivisible and that the status-based prong (§ 646(A)(2)) can be violated by the slightest touching, so § 646 is not categorically a violent felony; Winrow’s ACCA enhancement was unlawful and his sentence was vacated and remanded for resentencing without the ACCA enhancement.

Issue	Winrow (Plaintiff)	Government (Defendant)	Held
Is Okla. Stat. tit. 21, § 646 divisible (elements vs means)?	Alternatives are means (indivisible); must apply categorical approach	Alternatives are distinct elements (divisible); may use modified categorical approach to identify predicate	Statute ambiguous; record does not speak plainly; resolve ambiguity for defendant — treat statute as indivisible
Does § 646 categorically qualify as an ACCA "violent felony" under the elements (force) clause?	No — the status-based prong (§646(A)(2)) can be satisfied by the slightest unlawful touching, which is not force capable of causing physical pain/injury	Yes — "assault and battery" requires an assault (attempt/threat to cause bodily injury), so it meets the force requirement	No — under Oklahoma law a battery/assault can be the slightest touching (Steele), so §646 can be violated without the required violent force and is not categorically a violent felony
Was Winrow’s ACCA-enhanced sentence lawful given the § 646 predicates?	Enhancement improper because § 646 predicates do not categorically qualify	Enhancement proper because convictions fit an ACCA predicate	Enhancement unlawful; vacate sentence and remand for resentencing without ACCA enhancement

Johnson v. United States, 559 U.S. 133 (2010) (defines "violent felony" force requirement)
Descamps v. United States, 570 U.S. 254 (2013) (describes categorical/modified categorical approaches)
Mathis v. United States, 579 U.S. 500 (2016) (elements vs means divisibility test)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach principle)
Shepard v. United States, 544 U.S. 13 (2005) (limiting record materials for modified categorical inquiry)
Borden v. United States, 141 S. Ct. 1817 (2021) (discusses violent‑felony force analysis)
United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) (categorical approach in Tenth Circuit)
United States v. Degeare, 884 F.3d 1241 (10th Cir. 2018) (divisibility and resolving ambiguity for defendant)
United States v. Hammons, 862 F.3d 1052 (10th Cir. 2017) (statute that reaches non-force conduct not a violent felony)
Steele v. State, 778 P.2d 929 (Okla. Crim. App. 1989) (holding that only the slightest touching is necessary for battery under Oklahoma law)
Herrington v. State, 352 P.2d 931 (Okla. Crim. App. 1960) (illustrative Oklahoma precedent on §646 issues)
Porter v. State, 611 P.2d 278 (Okla. Crim. App. 1980) (discusses elements in lesser‑included analysis)
Crawford v. State, 840 P.2d 627 (Okla. Crim. App. 1992) (treats alternative theories as means in similar statutes)
United States v. Wilkins, 30 F.4th 1198 (10th Cir. 2022) (addresses weight of statutory subsections in divisibility analysis)