UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JASON MITCHELL ABBO, 

 Defendant - Appellant. 

No. 18-6081 

(D.C. Nos. 5:16-CV-00722-M and 

5:11-CR-00385-M-1) 

(W.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges. 

_________________________________ 

Before the court is Jason Abbo’s application for a certificate of appealability 

(COA). Abbo, a federal prisoner, is serving a 180-month sentence on his felon-inpossession-of-a-firearm conviction. Relying on Johnson v. United States, 135 S. Ct. 2551 

(2015), he filed a motion under 28 U.S.C. § 2255 to vacate his sentence, contending that 

the district court erred by enhancing his sentence under the Armed Career Criminal Act 

(ACCA), 18 U.S.C. § 924(e). The district court denied both the motion and the 

application for a COA. As explained below, we conclude that reasonable jurists could not 

find Abbo’s claims debatable, so we too deny his application for COA. 

 * This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 8, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

BACKGROUND 

In 2012, a jury convicted Abbo on a charge of being a felon in possession of a 

firearm. See 18 U.S.C. § 922(g)(1). At sentencing, Abbo did not object to the Presentence 

Investigation Report (PSR), which had recommended sentencing under the ACCA after 

identifying at least three predicate felony offenses. The PSR referenced the following 

convictions from Oklahoma state courts: 

1. A 2002 conviction, as a juvenile, for “Possession of a controlled 

dangerous substance with intent to distribute,” Case No: JDL-02-1119; 

2. a 2004 conviction, as an adult, for “Possession of a controlled dangerous 

substance with intent to distribute” and “Conspiracy for unlawful 

distribution of controlled dangerous substance,” Case No: CF-2004-

5069; 

3. a 2007 conviction for “Domestic abuse by strangulation” and “Burglary, 

first degree,” Case No: CF-2007-189; and 

4. a 2008 conviction for “Burglary, first degree” and “Domestic assault and 

battery,” Case No: CR-2007-3486. 

The district court adopted the PSR and sentenced Abbo to 180 months of imprisonment, 

the minimum term allowed by statute. Abbo appealed, but on non-ACCA grounds, and in 

2013 we affirmed. United States v. Abbo, 515 F. App’x 764 (10th Cir. 2013). 

In 2016, after the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 

2551 (2015), struck down the ACCA’s residual clause as void for vagueness, Abbo 

moved under 28 U.S.C. § 2255 to vacate his sentence. He argued, under Johnson, that his 

sole ACCA-qualifying felony conviction was his 2004 adult conviction for “possession 
3 

of a controlled dangerous substance with intent to distribute.” The district court denied 

both his motion to vacate and his application for a certificate of appealability.1

 

Abbo now seeks a certificate of appealability from this court. We will issue a 

COA only where “the applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(1)(B), (c)(2). To make such a showing, “[t]he 

petitioner must demonstrate that reasonable jurists would find the district court’s 

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 

473, 484 (2000). 

DISCUSSION 

The ACCA imposes enhanced sentences on offenders found to have at least three 

predicate convictions for any combination of violent felonies or serious drug offenses. 

See 18 U.S.C. § 924(e). In determining whether prior convictions count as violent 

felonies or serious drug offenses, courts employ the “categorical approach.” Under that 

approach, we “compar[e] the elements of the crime of conviction to the ACCA.” United 

States v. Titties, 852 F.3d 1257, 1265 (10th Cir. 2017). But when the statute of conviction 

is divisible, meaning that “it contains more than one crime,” we apply the “modified 

categorical approach,” which “reveals the relevant elements for the comparison under the 

categorical approach.” Id. Although Johnson struck down § 924(e)(2)(B)’s “residual 

clause” as unconstitutionally vague, the “enumerated-offenses clause” and the “elements” 

 1

 Abbo initially appealed before securing a COA, so we remanded for the 

district court to determine in the first instance whether a COA should issue. 
4 

clauses both remain valid bases for defining a “violent felony.”2

 See United States v. 

Degeare, 884 F.3d 1241, 1245 (10th Cir. 2018) (citing Johnson, 135 S. Ct. at 2563). 

To prove a Johnson claim, a petitioner has the burden to establish “that the 

sentencing court, more likely than not, relied on the residual clause to enhance his 

sentence under the ACCA.” United States v. Driscoll, 892 F.3d 1127, 1135 (10th Cir. 

2018). When the sentencing record is silent or ambiguous about which clause the district 

court relied on, we look to the “relevant background legal environment” to aid in 

determining whether the district court relied on the residual clause. See United States v. 

Snyder, 871 F.3d 1122, 1130 (10th Cir. 2017), cert. denied, 138 S. Ct. 1696 (2018). If the 

law at the time would have permitted the district court to rely on either the elements 

clause or the enumerated-offenses clause, then the petitioner will normally fail to meet 

this burden. See United States v. Washington, 890 F.3d 891, 899 (10th Cir. 2018), cert. 

denied, 139 S. Ct. 789 (2019). 

Here, Abbo fails in his brief to mount any arguments that the district court in fact 

relied on the residual clause. Notwithstanding this failure, we have reviewed the 

sentencing record ourselves and found it silent on which clause of the ACCA the district 

 2

 “[T]he term ‘violent felony’ means any crime punishable by imprisonment 

for a term exceeding one year, or any act of juvenile delinquency involving the use or 

carrying of a firearm, knife, or destructive device that would be punishable by 

imprisonment for such term if committed by an adult, 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). 
5 

court in fact relied on. Therefore, to prevail on his Johnson claim, Abbo must establish 

that the relevant background legal environment makes it more likely than not that the 

district court relied on the residual clause. See Snyder, 871 F.3d at 1130. 

As mentioned, Abbo concedes that his 2004 conviction for possession, with intent 

to distribute, a controlled substance qualifies as a “serious drug offense.” Beyond that, 

Abbo invites us into the thicket of his extensive criminal history, but we need go no 

further than his two felony burglary convictions. Because they qualify as “violent 

felonies,” those convictions, combined with his conceded serious drug offense, require 

the ACCA sentence he received. 

A. The 2007 conviction for “Burglary, first degree”

For this offense, the judgment of conviction states that Abbo violated 21 O.S. 

§ 1431, which in 2007 read as follows: 

Every person who breaks into and enters the dwelling house of another, in 

which there is at the time some human being, with intent to commit some 

crime therein, either: 

1. By forcibly bursting or breaking the wall, or an outer door, window, or 

shutter of a window of such house or the lock or bolts of such door, or 

the fastening of such window or shutter; or 

2. By breaking in any other manner, being armed with a dangerous 

weapon or being assisted or aided by one or more confederates then 

actually present; or 

3. By unlocking an outer door by means of false keys or by picking the 

lock thereof, or by lifting a latch or opening a window, is guilty of 

burglary in the first degree. 

Id. at § 1431 (2007). The statute does not list separate crimes with separate elements, but 

rather lists various factual means by which a defendant can commit the “breaking and 

entering” element. See id. The statute is therefore indivisible. See Mathis v. United States, 
6 

136 S. Ct. 2243, 2251 (2016). Abbo argues that this crime covers more conduct than 

generic burglary3

 because it defines burglary as breaking and entering into a “dwelling 

house,”4

 which, he says, could include locations that are not structures, such as a mobile 

home. Abbo’s Br. at 24. This argument gets Abbo nowhere. 

 Our court has previously held that Oklahoma first-degree burglary is a violent 

felony. See United States v. Bennett, 108 F.3d 1315, 1317 (10th Cir. 1997). This holding 

is reinforced by the recent case of United States v. Stitt, where the Supreme Court held 

that generic burglary “includes burglary of a structure or vehicle that has been adapted or 

is customarily used for overnight accommodation.” 139 S. Ct. 399, 403–04 (2018). 

Simply put, Oklahoma’s first-degree burglary matches the definition of federal generic 

burglary. See id. Therefore, Abbo’s 2007 conviction qualifies as a “violent felony” under 

the enumerated-offenses clause of the ACCA, and reasonable jurists could not debate the 

point. See Slack, 529 U.S. at 484.5

 

 3

 “[T]he generic, contemporary meaning of burglary contains at least the 

following elements: an unlawful or unprivileged entry into, or remaining in, a 

building or other structure, with intent to commit a crime.” Taylor v. United States, 

495 U.S. 575, 598 (1990). 

4

 At the time, Oklahoma law defined “dwelling house” as “includ[ing] every 

house or edifice, any part of which has usually been occupied by any person lodging 

therein at night, and any structure joined to and immediately connected with such a 

house or edifice.” 21 O.S. § 1439 (2007). 

5

 We need not decide whether Abbo’s associated felony conviction for 

“domestic abuse by strangulation” would qualify as an independent violent felony, 

because Abbo’s other convictions establish the ACCA’s conditions. 
7 

B. The 2008 conviction for “Burglary, first degree” 

 For the reasons given in support of the 2007 first-degree burglary conviction’s 

counting as a violent felony, so too does his 2008 burglary conviction. Oklahoma did not 

redefine the crime of first-degree burglary between 2007 and 2008. See 21 O.S. § 1431 

(2008). And reasonable jurists could not debate this. See Slack, 529 U.S. at 484.6

 

CONCLUSION 

Because Abbo had a qualifying serious drug offense and two qualifying violent 

felonies, he qualified for enhanced sentencing under the ACCA. Accordingly, we 

deny his application for a COA and dismiss this appeal. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

 6

 Again, we need not decide whether Abbo’s associated felony conviction for 

“domestic assault and battery” would qualify as an independent violent felony, 

because Abbo’s other convictions establish the ACCA’s conditions.