United States v. Hammons
862 F.3d 1052
10th Cir.
2017
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UNITED STATES of America v. Britt Jarriel HAMMONS

No. 16-6024

United States Court of Appeals, Tenth Circuit

July 7, 2017

862 F.3d 1052

EBEL, Circuit Judge.

wanted work (Appellant‘s App. at 223), she never contacted Kelly again after her assignment with GE had ended. Moreover, we note that Plaintiff has not adequately briefed this argument or provided any cases in support, and thus any additional argument on this point has been waived.

We accordingly affirm the district court‘s entry of summary judgment in favor of Defendants on Plaintiff‘s ADA claim.

We turn then to the final issue before us in this case: whether the district court erred in granting summary judgment in favor of Defendants on Plaintiff‘s GINA claim. GINA provides that “[i]t shall be an unlawful practice for an employer ... to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of the employee, because of genetic information with respect to the employee.” 42 U.S.C. § 2000ff-1(a). Plaintiff argues there are two facts from which a jury could find that Kelly and/or GE discriminated against her based on her genetic information: first, Plaintiff told various individuals at Kelly and at GE about her family history of breast cancer; and second, Plaintiff was fired after she requested time off for her breast-cancer treatment. She argues that “a jury could find that [P]laintiff‘s employment was terminated based upon Defendant[s‘] assumptions about the needed course of treatment based upon her genetic information of multiple women in her family having been diagnosed with breast cancer,” (Appellant‘s Opening Br. at 56), because the jury could infer that Defendants had a “biased opinion that [P]laintiff‘s family history of breast cancer would have an effect upon her own cancer treatment and/or recovery,” (id. at 57). However, such a finding would require rank speculation, without any supporting evidence, regarding Defendants’ assumptions about the role of a family history of breast cancer on a breast-cancer patient‘s treatment and recovery. We are persuaded that the evidence cited by Plaintiff would not permit a jury to reasonably infer that Defendants’ knowledge of Plaintiff‘s family history of breast cancer contributed to the decision to terminate her temporary assignment at GE. Moreover, even if Plaintiff had presented such evidence, she has not even attempted to present any evidence or argument to suggest that Defendants’ legitimate nondiscriminatory reason for her termination was a pretext for discrimination on the basis of genetic information. We accordingly affirm the district court‘s entry of summary judgment in favor of Defendants on Plaintiff‘s GINA claim.

III.

For the foregoing reasons, we AFFIRM the district court‘s discovery ruling and the entry of summary judgment in favor of Defendants on both of the claims in Plaintiff‘s complaint.

Kyle Wackenheim, Assistant Federal Public Defender (Julia C. Summers, with him on the briefs), Office of the Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Timothy W. Ogilvie, Assistant United States Attorney (Mark A. Yancy, Acting United States Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before BRISCOE, EBEL, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

This case presents the question whether Oklahoma‘s drive-by shooting statute, Okla. Stat. tit. 21, § 652(B), qualifies as a violent felony under the federal Armed Career Criminal Act (ACCA). We hold that it does. Accordingly, we AFFIRM.

I. BACKGROUND

In 2004, Britt Hammons pleaded guilty in federal court to possessing a firearm as a felon. His criminal history included three prior convictions under Oklahoma‘s drive-by shooting statute, Okla. Stat. tit. 21, § 652(B) (1992). It is undisputed that, at the time of sentencing, Hammons qualified for the ACCA‘s fifteen-year mandatory minimum sentence because his prior convictions would have met the definition of “violent felony” under the ACCA‘s residual clause.1 See 18 U.S.C. § 924(e)(2)(B)(ii) (residual clause). The district court thus imposed the ACCA enhancement, but the Supreme Court struck down the residual clause in . Now that the residual clause cannot be relied upon for the enhancement, Hammons seeks to vacate his sentence under 28 U.S.C. § 2255.2

On collateral review, the district court concluded that Hammons nevertheless qualified for the enhancement because his state-law convictions were violent felonies under the elements clause of the ACCA. Under that clause, a violent felony includes any felony statute that “has as an element the use ... of physical force against the person of another[.]” 18 U.S.C. § 924(e)(2)(B)(i). Finding that Oklahoma‘s drive-by shooting statute contained such an element, the district court upheld the sentence.

II. DISCUSSION

The Oklahoma drive-by shooting statute in effect at the time of Hammons’ convictions provided:

Every person who uses any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow or other weapon in conscious disregard for the safety of any other person or persons shall upon conviction be punished....

Okla. Stat. tit. 21, § 652(B) (1992) (emphasis added). The question is whether § 652(B) satisfies the requirement in 18 U.S.C. § 924(e)(2)(B)(i) that the crime of conviction “has as an element the use ... of physical force against the person of another[.]”

This case calls for the application of the categorical approach, which examines the elements of the predicate state conviction in the abstract, rather than the precise conduct giving rise to that conviction. E.g., . In doing so, we look to the least of the acts criminalized by the Oklahoma statute. . In other words, if § 652(B) realistically reaches any conduct that does not involve the use of physical force against another person, then a conviction under § 652(B) does not qualify as a violent felony under the ACCA‘s elements clause.

Hammons makes three arguments for why § 652(B) does not trigger the ACCA enhancement under the elements clause: (1) the statute permits conviction for mere-ly operating a vehicle without the defendant actually discharging a weapon; (2) the statute requires proof of recklessness, which is not enough to qualify as a violent felony; and (3) the statute permits conviction based on the discharge of a weapon that does not involve force. We reject each contention in turn.

A. Section 652(B) Does Not Require the Offender To Discharge the Weapon Himself

Section 652(B), by its plain terms, does not require the offender to discharge the weapon himself—he need only operate the vehicle while someone else in the car discharges the weapon. Okla. Stat. tit. 21, § 652(B). The statute thus does not require the defendant personally to have employed any physical force against another, so according to Hammons, a conviction under § 652(B) would not necessarily involve the offender‘s personal use of physical force. But the elements clause does not require the offender himself to have employed the requisite physical force; instead it requires only that the predicate statute contain “as an element the use ... of physical force.” 18 U.S.C. § 924(e)(2)(B)(i). Section 652(B) explicitly contains as an element “the intentional discharge” of a weapon, even if the trigger is pulled by someone other than the offender, e.g., a passenger in the car rather than the driver. Because the predicate statute includes such an element, Hammons’ argument fails.

B. The Mental State Required to Violate § 652(B)

The mental state required to commit a predicate offense bears on our determination of whether that offense qualifies as a violent felony under the ACCA. See ; . Hammons cites , for the proposition that a reckless mental state does not meet the use-of-force requirement under a similarly phrased provision in the U.S. Sentencing Guidelines. Relying on that case, Hammons points out that § 652(B) requires only recklessness because an offender need only act “in conscious disregard” for the safety of others—so Hammons argues it does not qualify as a violent felony under the ACCA‘s elements clause.

But Hammons discounts an important element of the Oklahoma law. Section 652(B) requires that the offender use a vehicle ”to facilitate the intentional discharge” of a weapon. Okla. Stat. tit. 21, § 652(B) (1992) (emphasis added). The phrase “to facilitate” indicates that the offender must have the specific intent to accomplish the intentional discharge of a weapon. See (interpreting § 652(B) to require “the specific intent to discharge a weapon“). And it is already established that purposefully discharging a firearm in the direction of others satisfies the elements clause of the ACCA. . Thus, § 652(B) contains as an element the intentional—not merely reckless—use of physical force against the person of another.3

The Supreme Court‘s recent decision in confirms the point. — U.S. —, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016). In interpreting the word “use ... of physical force” in 18 U.S.C. § 921(a)(33)(A)(ii), reasoned that because reckless conduct involves a “deliberate decision to endanger another,” a predicate statute requiring only a reckless mental state would categorically involve the use of physical force. at 2279 (emphasis added). The Court clarified that the categorical inquiry focuses on whether the force contemplated by the predicate statute is “volitional” or instead “involuntary“—it makes no difference whether the person applying the force had the specific intention of causing harm or instead merely acted recklessly. ; see also (interpreting to establish a dividing line between “volitional acts [and] involuntary motion[,] not recklessness [and] intention“).4 We have already observed that Oklahoma‘s § 652(B) requires the deliberate use of physical force—the facilitation of the intentional discharge of a weapon. See . Accordingly, we conclude that § 652(B) necessarily involves “the use ... of physical force against the person of another.”

C. Section 652(B)‘s Inclusion of “Other Weapon”

Section 652(B) criminalizes the use of a vehicle to aid “the intentional discharge of any kind of firearm, crossbow or other weapon in conscious disregard for the safety of another person....” (emphasis added). Hammons contends that this inclusion of “other weapon” defeats a categorical match because it permits a conviction even when the weapon does not involve or require the application of physical force against another person. A predicate statute will qualify as a violent felony under the ACCA‘s elements clause only if—when looking to the least of the acts criminalized—the statute necessarily involves the use, attempted use, or threatened use of “physical force” against another person. See . Hammons imagines some kind of weapon, such as an instrument that deploys hazardous chemicals, that could trigger a conviction under Oklahoma‘s § 652(B) but would not involve “the use ... of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

We disagree for several reasons. First, § 652(B) requires that the “other weapon” be “discharge[d]“—which is a quintessentially physical action. Okla. Stat. tit. 21, § 652(B) (1992) (emphasis added). The term “physical force” in the elements clause refers to the “mechanism by which the force is imparted,” rather than the physical effect on the victim. See (exposing a victim to hazardous chemicals or poison is not “physical force” without using some actual kinetic force to cause the harm). Section 652(B)‘s requirement that the “other weapon” be “discharge[d]” indicates that—whatever the weapon is—it must be used in a manner that involves the application of physical force.5

Second, the highest criminal court in Oklahoma observed that, in enacting § 652(B), “the Legislature intended to punish willful use of force or violence against another....” (emphasis added). Third, the highest criminal court in Oklahoma has defined a “weapon” generally as “anything used or designed to be used in destroying, defeating, or injuring an enemy—an instrument of offensive or defensive combat.” (emphasis added). These considerations confirm that § 652(B)‘s reference to “other weapon” contemplates the use of an instrument that necessarily involves the use of physical force.

Finally, Hammons’ invitation that we deny a categorical match based on the possibility that an offender could commit chemical warfare from the backseat of a car requires us to stretch our “legal imagination” beyond what is “realistically probable.” . The Supreme Court in cautioned us not to engage in such speculative adventures, so we decline to do so here.

III. CONCLUSION

A conviction under Oklahoma‘s drive-by shooting statute, Okla. Stat. tit. 21, § 652(B), categorically qualifies as a violent felony under the elements clause of the ACCA. We therefore AFFIRM.

UNITED STATES of America v. Ann Marie MCNEAL

No. 16-1054

United States Court of Appeals, Tenth Circuit

July 10, 2017

Notes

1
The sentencing record does not establish which clause of the ACCA was relied upon in the original sentence, nor does that make a difference in our analysis.
2
The ruling in applies retroactively to cases on collateral review. .
3
There is no question that the physical force contemplated by Oklahoma‘s drive-by shooting statute is employed “against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The Oklahoma Court of Criminal Appeals—the court of last resort for state criminal cases—has held that § 652(B) is “indisputably a crime against the person.” .
4
We do not here decide whether abrogated our earlier precedent in , which held that “recklessness falls into the category of accidental conduct” that “fail[s] to satisfy the use of physical force requirement” in a similarly worded federal sentencing guideline. We leave for another day a final determination on that question.
5
There may be some question whether remains good law in light of subsequent Supreme Court decisions addressing the degree of physical force required under similar statutes. See (interpreting 18 U.S.C. § 924(e)(2)(B)(i)); (interpreting 18 U.S.C. § 921(a)(33)(A)(ii)). Hammons does not challenge the continued validity of in this case, so we offer no comment on that question. We simply note that furnishes only one of several grounds to reject Hammons’ argument regarding the inclusion of “other weapon” in Oklahoma‘s drive-by shooting statute.
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