U.S. v. Smith, No. 10–6209.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
• Citation: 652 F.3d 1244
• Decision Date: 13 July 2011
• Docket Number: No. 10–6209.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Fred Douglas SMITH, Defendant–Appellant.

652 F.3d 1244

UNITED STATES of America, Plaintiff–Appellee,
v.
Fred Douglas SMITH, Defendant–Appellant.

No. 10–6209.

United States Court of Appeals, Tenth Circuit.

July 13, 2011.

[652 F.3d 1245]

Jack Dempsey Pointer, Attorney at Law, Oklahoma City, OK, for Defendant–Appellant.Sanford C. Coats, United States Attorney, Jonathon E. Boatman, Assistant U.S. Attorney, Ashley L. Altsuler, Assistant U.S. Attorney, Office of the United States Attorney, Oklahoma City, OK, for Plaintiff–Appellee.Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.O'BRIEN, Circuit Judge.^*

Fred Douglas Smith pled guilty to being a felon in possession of a firearm. He appeals from the district court's application of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to enhance his sentence.¹ Specifically at issue is whether an assault or battery committed by a person in custody on an employee of the Office of Juvenile Affairs is, categorically, a violent felony. We AFFIRM.

I. BACKGROUND

On September 8, 2010, Smith pled guilty in the Western District of Oklahoma to one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The presentence investigation report (PSIR) recommended an enhanced sentence under the ACCA because Smith had previously committed three violent felonies.² Smith objected. Relevant here, he contended his conviction of assault and battery ³ on an

[652 F.3d 1246]

Office of Juvenile Affairs employee (for which he was charged as an adult at age sixteen) did not qualify as a crime of violence under the ACCA. The district court overruled his objection and sentenced him to 200 months in prison and 3 years of supervised release.II. DISCUSSION

“Whether a defendant's prior conviction qualifies as a violent felony under the ACCA is a question of law that we review de novo.” ⁴ United States v. Silva, 608 F.3d 663, 665 (10th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1473, 179 L.Ed.2d 313 (2011). The ACCA defines the phrase “violent felony” to mean

any crime punishable by imprisonment for a term exceeding one year, ... that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; ...

18 U.S.C. § 924(e)(2)(B).

[D]etermining whether a prior conviction falls under the ACCA, we apply a “categorical approach,” generally looking only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction. That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the ACCA, without inquiring into the specific conduct of this particular offender. To satisfy this categorical approach, it is not necessary that every conceivable factual offense covered by a statute fall within the ACCA. Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, qualifies under the ACCA as a violent felony or a serious drug offense.

If, in the ordinary case, a criminal statute proscribes conduct broader than that which would satisfy the ACCA's definition of a violent felony or serious drug offense, a federal court may then also look at the charging documents and documents of conviction to determine whether the defendant in a particular case was convicted of an offense that falls within the ACCA. We have referred to this as a “modified categorical” approach.

United States v. West, 550 F.3d 952, 957–58 (10th Cir.2008) (quotation and citation omitted), partially overruled on other grounds by Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).

Smith was convicted under Okla. Stat. tit. 21, § 650.2(D) (2003), which reads:

Every person in the custody of the Office of Juvenile Affairs who, without justifiable or excusable cause, knowingly commits any assault, battery or assault and battery upon the person of an Office of Juvenile Affairs employee while said employee is in the performance of his or her duties shall, upon conviction thereof, be guilty of a felony.

Oklahoma law defines assault as “any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another,” Okla. Stat. tit. 21, § 641 (2003),

[652 F.3d 1247]

and battery as “any willful and unlawful use of force or violence upon the person of another.” Okla. Stat. tit. 21, § 642 (2003).

According to the Supreme Court “physical force” for the purposes of enhancement under 18 U.S.C. § 924(e)(2)(B)(i) “means violent force—that is, force capable of causing physical pain or injury to another person” as opposed to mere touching. Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 1270–71, 176 L.Ed.2d 1 (2010). But under Oklahoma law, mere offensive touching satisfies the requirement for force in a battery. See Steele v. State, 778 P.2d 929, 931 (Okla.Crim.App.1989) (“[W]e hold that only the slightest touching is necessary to constitute the ‘force or violence’ element of battery.”). That prompts Smith to ask us to employ the modified categorical approach ⁵ to determine whether his state conviction qualified as a violent felony under federal law. However, we need not do so. As interpreted by the Oklahoma Court of Criminal Appeals, the statute clearly reaches behavior that does not “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another” as required for enhancement under 18 U.S.C. § 924(e)(2)(B)(i). But that does not end the matter. As we explain, Smith's crime qualifies on its face for enhancement under 18 U.S.C. § 924(e)(2)(B)(ii), the residual clause of the ACCA.

Smith was not convicted of simple assault or battery. He was convicted of assault or battery by a person in the custody of Juvenile Affairs on an employee of that office. As the government points out, under the residual clause a crime that does not meet the requirements for use of violent force under 18 U.S.C. § 924(e)(2)(B)(i) may be a “violent felony” if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). Smith's crime qualifies as a violent felony under the residual clause of the ACCA because the offense categorically involves conduct that...