by David Reutter

The U.S. Circuit Court of Appeals for the Tenth Circuit affirmed an Oklahoma federals district court's order vacating a sentencing classification as an armed career criminal. The court also affirmed the classification as a career offender.

Before the Court were appeals brought by the government and Darius Rashad Johnson, who was sentenced following convictions for possessing cocaine with intent to distribute and being a felon in possession of a firearm. The district court imposed concurrent 192-month prison sentences after finding Johnson qualified as an armed career criminal due to three prior violent felony convictions.

The Court subsequently vacated the sentence, concluding one of the convictions was not a violent felony. It then imposed concurrent terms of 120 months and 128 months, relying on Johnson qualifying as a career offender based on two crimes of violence. The government appealed the vacating of the armed career criminal classification, and Johnson cross-appealed his classification as a career criminal.

The district court vacated the initial sentence based on Johnson v. United States, 135 S.Ct. 2551 (2105), which found the Residual Clause in 18 U.S.C. §924(e)(2)(B) was unconstitutional, leaving intact the Elements Clause and the Enumerated-Offense Clause. The court used the Residual Clause to find that Johnson's prior Oklahoma conviction for assault and battery on a law enforcement officer was a violent felony.

On appeal, the government urged the Tenth Circuit to apply the modified categorical approach and treat that offense as a violent felony under the Elements Clause. That approach allows the court to consider a limited class of documents to determine whether a crime necessarily includes elements that would constitute a violent felony. Shepard v. United States, 544 U.S. 13 (2005). It, however, may only be used if the statute of conviction is divisible. Descamps v. United States, 570 U.S. 254 (2013). The Court said it was unable to determine with certainty that the criminal statute at issue, Okla. Stat. tit. 21, §649(B), was divisible, so it could not apply the modified categorical approach.

The Court then applied the categorical approach, which focuses on the elements of the crime rather than the specifics of the defendant's conduct. To find that a crime is categorically a violent felony, it must have as an element the “use, attempted use, or threatened use of physical force against another person.” 18 U.S.C. §924(e)(2)(B)(i). The term “physical force” refers to “violence not force — that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133 (2010).

The Court found that “Oklahoma's crime of battery does not require violent force capable of causing physical pain or injury because this crime can be committed with only the slightest touching.” Thus, it is not a violent felony and the district court's order vacating the initial sentence was affirmed.

Johnson argued, initially, on appeal that his prior conviction for the use of a motor vehicle to facilitate the intentional discharge of firearm was not a violent felony. He, however, conceded that the court held otherwise in United States v. Hammons, 862 F.2d 1052 (10th Cir. 2017). Based on that concession, the finding that Johnson was a career criminal was affirmed. See: United States v. Johnson, F.2d. (10th Cir. 2018).

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