*

This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

FILED

United States Court of Appeals

Tenth Circuit

October 20, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 11-6136

v. (W.D. Oklahoma)

ERIC STANTON KUTZ,

Defendant - Appellant.

(D.C. No. 5:10-CR-00217-F-1)

ORDER AND JUDGMENT*

Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Defendant and appellant Eric Stanton Kutz pled guilty to one count of

being a felon in possession of a firearm and one count of possession with intent to

distribute methamphetamine. He was sentenced on the felon-in-possession count
1

While the plea agreement contained a waiver of the right to appeal, the

government told the district court at the sentencing hearing that it would suspend

the waiver to allow Mr. Kutz to appeal the court’s ruling on whether the ACCA

penalty applied.

-2-

as an armed career criminal, pursuant to the Armed Career Criminal Act, 18

U.S.C. § 924(e) (“ACCA”), and received the mandatory ACCA enhanced sentence

of 180 months on that count. Mr. Kutz appeals that sentence. We affirm.

BACKGROUND

On March 29, 2010, Mr. Kutz engaged in a high speed car chase in

Oklahoma City, Oklahoma, following an attempted traffic stop by police. During

the chase, police officers pursuing Mr. Kutz observed a firearm and a bag

containing a white substance (which turned out to be methamphetamine) being

thrown from the passenger side window of the vehicle Mr. Kutz was driving. 

When he crashed his car into a tree, Mr. Kutz, a convicted felon, was arrested and

charged with being a felon in possession of a firearm and possession with intent

to distribute the methamphetamine.

Prior to the scheduled trial, the government filed a notice of its intention to

seek an enhanced penalty for the felon-in-possession count pursuant to the

ACCA, because Mr. Kutz had previously committed three violent felonies. 

Mr. Kutz pled guilty to both counts.1

 In preparation for sentencing, the United

States Probation Office prepared a presentence report (“PSR”). The PSR

indicated the government’s intention to seek the enhanced penalty under the
-3-

ACCA. The government identified three predicate convictions which it argued

were crimes of violence and, accordingly, qualified Mr. Kutz for the enhanced

ACCA penalty. These three convictions were: (1) assault and battery with a

dangerous weapon; (2) pointing a firearm at another; and (3) assault and battery

upon a law enforcement officer. Mr. Kutz objected.

Mr. Kutz concedes that the first two convictions qualify as crimes of

violence for ACCA purposes. Both before the district court and on appeal,

however, Mr. Kutz argues that the third conviction (assault and battery upon a

law enforcement officer) does not fall within the statutory definition of a crime of

violence under 18 U.S.C. § 924(e)(2)(B)(ii). Relying upon this court’s decision

in United States v. Williams, 559 F.3d 1143 (10th Cir. 2009), the district court

held that battery on a police officer qualifies categorically as a predicate crime of

violence for ACCA purposes. It accordingly sentenced Mr. Kutz as an armed

career criminal. This appeal followed.

DISCUSSION

A “violent felony” under the ACCA is any crime punishable by a term of

imprisonment exceeding one year that also

(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 the use of explosives, or

otherwise involves conduct that presents a serious potential risk of

physical injury to another . . . . 
-4-

18 U.S.C. § 924(e)(2)(B). “Whether a defendant’s prior conviction qualifies as a

violent felony under the ACCA is a question of law that we review de novo.” 

United States v. Silva, 608 F.3d 663, 665 (10th Cir. 2010).

The first of the two subsections in § 924(e)(2)(B) is called the “force”

clause; the first part of the second subsection is called the “enumerated crimes”

clause; and the second part of the second subsection is called the “residual”

clause. The parties agree that the question in this case is whether Mr. Kutz’s

conviction for assault of a police officer falls within the residual clause as a crime

that “otherwise involves conduct that presents a serious potential risk of physical

injury to another.”

In “determining 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.” United States v. Smith,

652 F.3d 1244, 1246 (10th Cir. 2011) (further quotation omitted). If, on the other

hand, “a criminal statute proscribes conduct broader than that which would satisfy

the ACCA’s definition of a violent felony,” we apply the “modified categorical

approach.” Id. In that case, we may “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.” Id.
-5-

The prior conviction at issue in this case was a conviction for the assault

and battery of a law enforcement officer, in violation of Okla. Stat. tit. 21,

§ 649(B). In particular, Mr. Kutz avers that the assault involved his reaching out

from between jail cell bars and “grabbing a female corrections officer by the hip

in the buttock region.” Appellant’s Br. at 5. Mr. Kutz concedes that in

Williams, we held that a conviction pursuant to § 649(B) qualifies categorically

as a “crime of violence” under the career offender provisions of the United States

Sentencing Commission, Guidelines Manual (“USSG”). As we stated, “battery on

a police officer, as defined by Oklahoma statutes, ordinarily involves purposeful,

aggressive, and violent conduct, and creates a serious potential risk of physical

injury. Williams’ 1995 conviction, therefore, categorically qualifies as a crime of

violence under [USSG] § 4B1.2(a)(2)’s residual clause.” Williams, 559 F.3d at

1149. Mr. Kutz argues that we are not bound by Williams, however, because it is

simply “wrong,” Appellant’s Br. at 14, and it could be revisited in en banc

review. Mr. Kutz also argues that Williams is distinguishable because it involved

the career offender provisions of the Guidelines, whereas this case involves the

statutory career offender provisions.

None of these arguments is persuasive. It is well established that we “are

bound by the holdings of previous panels unless and until they are overruled by a

rehearing of this Court en banc or the Supreme Court.” United States v.

Campbell, 603 F.3d 1218, 1220 n.1 (10th Cir.), cert. denied, 131 S. Ct. 351
2

Our court has also recently held that a violation of Okla. Stat. tit. 21,

§ 650.2(B) (involving assault and battery by a person in the custody of Juvenile

Affairs on an employee of that office), a statute nearly identical to Okla. Stat. tit.

21. § 649(B), constitutes a violent felony under the ACCA’s residual clause. 

United States v. Smith, 652 F.3d 1244 (2011).

-6-

(2010). And, it is of no moment that Williams involved the Guidelines and this

case involves the statutory provisions, inasmuch as we construe the career

offender provisions in them identically. See United States v. Charles, 576 F.3d

1060, 1068 n.2 (10th Cir. 2009) (noting that “the Supreme Court’s analysis under

the ACCA ‘applies equally to the sentencing guidelines’” (quoting United States

v. Tiger, 538 F.3d 1297, 1298 (10th Cir. 2008)).2

We are therefore bound by Williams to conclude that Mr. Kutz’s prior

conviction for assault on a law enforcement officer qualifies as a violent felony

for ACCA purposes.

CONCLUSION

Accordingly, for the foregoing reasons, we AFFIRM the district court’s

sentencing determination.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge