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 sentenc e 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 enha ncing his sentence under the Ar med Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The d istrict court denied both the motion and the application for a COA. As explaine d below, we conclude that rea sonable jurists could not find Abbo’s claims debatable, so we too deny his application fo r 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel.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 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 8, 2019
Elisabeth A. Shumaker Clerk of Court2 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 t he Presentence Investigation Report (PSR), which had recommended sentencing un der the ACCA after identifying at least three predi cate felony offenses. The PSR r eferenced the following convictions from Oklahoma state courts:
1. A 2002 conviction, as a juvenile, for “Possession of a controll ed 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 distrib ute” and “Conspiracy for unlawf ul distribution of controlled dangerous substance,” Case No: CF-20 04- 5069; 3. a 2007 conviction for “Domestic abuse by strangulation” and “Bu rglary, first degree,” Case No: CF-2007-189; and 4. a 2008 conviction for “Burglary, first degree” and “Domestic as sault and battery,” Case No: CR-2007-3486. The district court adopted the PS R and sentenced Abbo to 180 mo nths of imprisonment, the minimum term allowed by stat ute. 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 ACC A’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 convic tion was his 2004 adult convi ction for “possession3 of a controlled dangerous substanc e 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 ha s made a substantial showing of the denial of a constitutional right.” 28 U.S. C. § 2253(c)(1 )(B), (c)(2). To ma ke such a showing, “[t]he petitioner must demonstrate that r easonable jurists would find the district court’s assessment of the constitutiona l claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000).
DISCUSSION The ACCA imposes enhanced sente nces on offenders found to have at least three predicate convictions for any comb ination of violent felonies o r serious drug offenses.
See 18 U.S.C. § 924(e). In determini ng whether prior convictions c ount as violent felonies or serious drug offens es, courts employ the “categoric al approach.” Under that approach, we “compar[e] the elem ents of the crime of conviction to the ACCA.” United
States v. Titties , 852 F.3d 1257, 1265 (10th Cir. 2 017). But when the statute of conviction is divisible, meaning that “it c ontains more than one crime,” w e apply the “modified categorical approach,” which “rev eals the relevant elements for the comparison under the categorical approach.” Id. Although Johnson struck down § 924(e)(2)(B)’s “residual clause” as unconstitutionally va gue, the “enumerated-offenses c lause” and the “elements”

1 Abbo initially appealed before securing a COA, so we remanded for the district court to determine in th e 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 envi ronment” to aid in determining whether the distric t court relied on the residual c lause. See United States v. Snyder , 871 F.3d 1122, 113 0 (10th Cir. 2017), cert. denied, 138 S. Ct. 1696 (2018). If the law at the time would have perm itted the district court to rely on either the elements clause or the enumerated-offens es clause, then the petitioner w ill 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 d istrict court in fact relied on the residual clause. Not withstanding 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’ m eans any crime punishable by imp risonment for a term exceeding one year, or any act of juvenile delinquen cy involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if c ommitted by an adult, that—(i) h as as an element the use, attempted use, or threaten ed use of physical force against the person of another; or (ii) is burglary, arson, or ex tortion, involves use of explo sives, or otherwise involves conduct that presents a serious potential risk of phys ical 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 leg al environment makes it more li kely 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 posses sion, with intent to distribute, a controlled subs tance qualifies as a “serious d rug offense.” Beyond that, Abbo invites us into the thicket of his extensive criminal hist ory, but we need go no further than his two felony bur glary convictions. Because they qualify as “violent felonies,” those convictions, com bined with his conceded seriou s drug offense, require the ACCA sentence he received.

A. The 2007 conviction for “Burglary, first degree” For this offense, the judgment o f conviction states that Abbo v iolated 21 O.S. § 1431, which in 2007 read as follows: Every person who breaks into and enters the dwelling house of a nother, in which there is at the time some human being, with intent to com mit some crime therein, either: 1. By forcibly bursting or breakin g the wall, or a n outer door, wi ndow, 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 t hen actually present; or 3. By unlocking an outer door by means of false keys or by picking the lock thereof, or by lifting a la tch or opening a window, is gui lty of burglary in the first degree.
Id. at § 1431 (2007). The statute does not list separate crimes wi th separate elements, but rather lists various factual mean s by which a defendant can com mit the “breaking and entering” element. See id. The statute is therefore indivisible. See Mathis v. United States ,6 136 S. Ct. 2243, 2251 (2016). Ab bo argues that this crime cover s more conduct than generic burglary 3 because it defines burglary as b reaking and entering into a “d welling house,” 4 which, he says, could include lo cations that are not structure s, such as a mobile home. Abbo’s Br. at 24. This ar gument gets Abbo nowhere. Our court has previously held t hat Oklahoma first-degree burgl ary 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 vehi cle that has been adapted or is customarily used for overnight accommodation.” 139 S. Ct. 39 9, 403–04 (2018). Simply put, Oklahoma’s first-degr ee burglary matches the defini tion of federal generic burglary. See id. Therefore, Abbo’s 2007 convictio n qualifies as a “violent felo ny” under the enumerated-offenses clause of the ACCA, and reasonable juri sts could not debate the point. See Slack , 529 U.S. at 484. 5

3 “[T]he generic, contemporary mean ing of burglary contains at l east the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, wit h intent to commit a crime.” Taylor v. United States , 495 U.S. 575, 598 (1990).

4 At the time, Oklahoma law defi ned “dwelling house” as “includ[ ing] every house or edifice, any part of wh ich has usually been occupied b y any person lodging therein at night, and any structur e joined to and immediately c onnected with such a house or edifice.” 21 O.S. § 1439 (2007).

5 We need not decide whether Abb o’s associated felony conviction for “domestic abuse by st rangulation” would qua lify as an independe nt violent felony, because Abbo’s other convictions establish the ACCA’s condition s.7 B. The 2008 conviction for “ Burglary, first degree” For the reasons given in suppor t of the 2007 first-degree burg lary conviction’s counting as a violent felony, so too does his 2008 burglary con viction. Oklahoma did not redefine the crime of first-degr ee burglary betw een 2007 and 20 08. See 21 O.S. § 1431 (2008). And reasonable jurist s could not debate this. See Slack , 529 U.S. at 484. 6
CONCLUSION Because Abbo had a qualifying seri ous drug offense and two qual ifying violent felonies, he qualified for enhan ced sentencing under the ACCA. Accordingly, we deny his application for a C OA and dismiss this appeal.

Entered for the Court

Gregory A. Phillips Circuit Judge

6 Again, we need not decide wheth er Abbo’s associated felony con viction for “domestic assault and battery” w ould qualify as an independent violent felony, because Abbo’s other convictions establish the ACCA’s condition s.