UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. EVERETT B. ROBINSON, Defendant - Appellant. No. 17-6046 (D.C. Nos. 5:15-CV-00885-R & 5:07-CR-00072-R-1) (W.D. Okla.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before HOLMES , McHUGH , and MORITZ , Circuit Judges.

_________________________________ In 2007, Everett Bernard Robins on was sentenced to 180 months’ imprisonment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), for being a felon in possession of a firearm a nd ammunition in violation of 18 U.S.C. § 922(g)(1). He unsuccessf ully pursued a direct app eal and relief under 28 U.S.C. § 2255. After the Supreme Court decided Johnson v. United States , 135 S. Ct. 2551 (2015), this court authorized him to file another § 2255 motion, which the district court denied. Having granted a certificate of appealability (COA) with regard to the

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 9, 2018
Elisabeth A. Shumaker Clerk of Court2 assessment of one of Mr. Robinson’s A CCA-predicate convictions, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm the denial of relief. We also deny a COA on Mr. Robinson’s remaining claims. BACKGROUND A § 922(g) violation generally carries a maximum senten ce of ten years’ imprisonment. 18 U.S.C. § 924(a)(2). The ACCA, however, requires a minimum sentence of fifteen years’ imprisonment fo r a defendant who violates § 922(g) “and has three previous convictions . . . for a violent felony or a serious drug offense.” Id. § 924(e)(1). Mr. Robinson’s three predic ate convictions were (1) a 2005 conviction for assault and battery with a dangerous weap on in violation of Okla. Stat. tit. 21, § 645; (2) a 1989 conviction for second degr ee burglary in violation of Ark. Code Ann. § 5-39-201; and (3) a 1973 Oklahoma conviction for robbery with a firearm after former conviction of a felony. 1 At his sentencing Mr. Robinson did not contend that any of these convictions failed to qualify as “viole nt felony” under the ACCA. Instead, he argued that the two older convic tions were so stale that to count them violated substantive due process. The di strict court rejected his contentions and imposed the ACCA-enhanced 180-month sentence. This court affirmed. United States v. Robinson , 304 F. App’x 746, 754 (10t h Cir. 2008) (unpublished). Mr. Robinson then filed an unsuccessful § 2255 motion, United States v. Robinson ,

1 This conviction also has been re ferred to as a 1971 conviction. See United States v. Robinson , 304 F. App’x 746, 74 9 (10th Cir. 2008) (unp ublished). While the case was brought in 1971, Mr. Robinson’s presentence repor t reflects that he pleaded guilty to the charge in 1973.3 401 F. App’x 334, 336 (10th Cir. 2010) (unp ublished), and later tried to file an unauthorized second or su ccessive § 2255 motion, Robinson v. United States , 544 F. App’x 798, 801 (10th Cir. 2013) (unpublished). Then in 2015 Johnson struck down one of the A CCA’s three definitions of “violent felony.” As enacted , the ACCA defined “violent felony” as (1) a felony that “has as an element the use, attempted use, or threated use of physical force against the person of another” (§ 924(e)(2)(B)(i), known as the “eleme nts clause”); (2) a felony that is “burglary, arson, or extorti on, or involves use of explosives” (the first part of § 924(e)(2)(B)(ii), known as the “e numerated-offenses clause”); and (3) a felony that “otherwise invol ves conduct that presents a serious potential risk of physical injury to another” (the latte r part of § 924(e)(2)(B)(ii), known as the “residual clause”). Johnson invalidated the re sidual clause, concluding that it was unconstitutionally vague. 135 S. Ct. at 2557, 2563. The Supreme Court made Johnson retroactive to cases on collateral review in Welch v. United States , 136 S. Ct. 1257, 1265 (2016). Hence, th is court authorized Mr. Robi nson to bring a successive § 2255 motion relying on Johnson

. In his successive § 2255 motion, Mr. Robinson argued that his ACCA-enhanced senten ce was invalid under Johnson because his 2005 Oklahoma conviction for assault and battery with a dangerous weapon and his 1989 Arkansas conviction for second degree burglary qualified as ACCA predicate convictions only4 under the residual clause. 2 The district court held that the Oklahoma conviction satisfied the elements cl ause and the Arkansas conviction came under the enumerated-offenses clause. The district court further he ld that Mr. Robinson could not rely on the Supreme Court’s recent decision in Mathis v. United States , 136 S. Ct. 2243 (2016), because Mathis did not announce a new rule of law applicable retroactively to cases on collate ral review. Accordingly, it denied relief. This court granted a COA to consider th e district court’s treatmen t of the Arkansas burglary conviction. DISCUSSION “On appeal from the denial of a § 225 5 motion, ordinarily we review the district court’s findings of fact for clear error and it s conclusions of law de novo.” United States v. Snyder , 871 F.3d 1122, 1125 (10th Ci r. 2017) (internal quotation marks omitted), petition for cert. filed , __ U.S.L.W. __ (U.S. Dec. 15, 2017) (No. 17-7157). I. Arkansas Burglary Conviction Johnson invalidated only the residual clause; it explicitly “[did] not call into question application of the [A CCA] to the four enumerated offenses, or the remainder of the [ACCA’s] definition of a violent felony .” 135 S. Ct. at 2563. After the district court decided Mr. Robinson’s § 2255 motion, this court he ld that a movant is not entitled to relief under Johnson where the court could dete rmine that the sentencing

2 In his reply, Mr. Robinson also attack ed the third predicate conviction, but the district court declined to address that conviction b ecause he had not raised the issue in his § 2255 motion. Mr. Robinson does not challe nge that decision on appeal.5 court did not rely on the residual clause, but instead imposed a sentence based on the enumerated-offenses clause. Snyder , 871 F.3d at 1130. Mr. R obinson asserts that the record in this case is unc lear whether the sentencing c ourt assessed his Arkansas burglary conviction under the enumerated-offe nses clause or the residual clause, and therefore he should get the benefit of the do ubt as to whether he was sentenced under the residual clause. He further argues that under Mathis , it is clear th at the Arkansas burglary conviction does not satisfy the enumerated-offenses clause. See United
States v. Sims , 854 F.3d 1037, 1039-40 (8th Cir. 2017) (analyzing Ark. Code Ann. § 5-39-201(a) under Mathis ), petition for cert. filed , __ U.S.L.W. __ (U.S. Nov. 21, 2017) (No. 17-766).
In Snyder , this court recognized that “it may be possibl e to determine that a sentencing court did not rely on the re sidual clause—even when the sentencing record alone is unclear—by looking to the relevant background le gal environment at the time of sentencing.” 871 F.3d at 1129 (internal quotati on marks omitted). 3 “A claim does not ‘rely’ on Johnson if it is possible to concl ude, using both the record before the sentencing court and the releva nt background legal environment at the time of sentencing, that the sentencing co urt’s ACCA determination did not rest on the residual clause.” Id. (brackets and internal quota tion marks omitted). “[T]he relevant background legal e nvironment is, so to speak, a ‘snapshot’ of what the

3 This court granted a COA before Snyder issued, but both parties had the opportunity to discuss Snyder in the briefing. To the extent that the Snyder analysis goes beyond the terms of the issued COA, we hereby expa nd the COA to permit the appropriate analysis. See United States v. Shipp , 589 F.3d 1084, 1087 (10th Cir. 2009) (recognizing that this court ha s the authority to expand a COA).6 controlling law was at the time of sent encing and does not take into account post-sentencing decisions th at may have clarified orcorrected pre-sentencing decisions.” Id. Mr. Robinson was sentenced in 2007, meaning that his sentencing occurred against the backdrop of both Taylor v. United States , 495 U.S. 575 (1990), and Shepard v. United States , 544 U.S. 13 (2005). 4 Examining the enumerat ed-offenses clause, Taylor held that “a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or rema ining in, a building or structure, with intent to commit a crime.” 495 U.S. at 599. That is known as “generic” burglary. See id. Taylor further held that to determine whether a conviction is for generic burglary, courts should employ the “categor ical approach,” “look[ing] only to the fact of conviction and the statutory definition of the prior offense.” Id. at 602. But if a particular statute defines burglary more broadly than generic burglary (such as a statute that includes automob iles as well as buildings), a court may also consult the charging paper and jury instructions to determine whether the jury was actually required to find the elements of generic burglary. See id. In sum, under Taylor , “an offense constitutes ‘burglary’ for purposes of a § 924(e) sentence enhancement if either its statutory definiti on substantially corresponds to ‘generic’ burglary, or the

4 Because our review focuses not on current law, but on the law in effect at the time of sentencing, we decline Mr. Robins on’s invitation to analyze § 5-39-201(a) (1987) under Mathis , 136 S. Ct. at 2256-57, and Descamps v. United States , 570 U.S. 254, 133 S. Ct. 2276, 2285 (2013).7 charging paper and jury instructions actually required the jury to find all the elements of generic burglary in orde r to convict the defendant.” Id. Shepard applied Taylor in the context of prior convictions obtained through guilty pleas. 544 U.S. at 16, 19. Rejec ting the government’s a ttempt to introduce documents such as police reports, Shepard adhered to “the Taylor conclusion, that respect for congressional intent and avoida nce of collateral trials require that evidence of generic conviction be confin ed to records of the convicting court approaching the certainty of the record of conviction in a generic crime State.” Id. at 23. Shepard thus held that to determine whet her a guilty plea neces sarily admitted the elements of generic burglary, courts may look beyond the statutory definition only “to the terms of the charging documen t, the terms of a plea agreement or transcript of colloquy between judge and defendant in whic h the factual basis for the plea was confirmed by the defendant, or to so me comparable judici al record of this information.” Id. at 26. Mr. Robinson contends that his stat ute of conviction was broader than generic burglary. The statute criminalized entry into “an occupiable structure,” Ark. Code Ann. § 5-39-201(a) (1987), but in addition to buildings and structures, “occupiable structure” was de fined to include vehicles, see id. § 5-39-101(1) (1987). According to Mr. Robinson, Although the residential burglary statut e only includes such alternatives if they are “adapted for overnight accommodation of persons,” this qualification does not change the re peated Supreme Court mantra that generic burglary does not include burgl ary of vehicles. In its 25 years of issuing decisions on the definition of generic burglary, the Supreme Court8 has never extended the generic definiti on of burglary to include vehicles “adapted for overnight acco mmodation of persons.” Aplt. Supp. Opening Br. at 7-8.
In Snyder , however, we concluded that “[i]n light of Taylor , there would have been little dispute at the ti me of Snyder’s sentencing th at his two Wyoming burglary convictions involving occupied structures fell within the scope of the ACCA’s enumerated crimes clause,” even though “the Wyoming statute under which these convictions arose includes entry of occupied structures or vehicles.” 871 F.3d at 1129-30 (brackets and internal quotation marks omitted). Th at was because “it would have been permissible for the distri ct court to examine the underlying charging documents and/or jury instructions to determine if Snyder was charged only with burglary of buildings. And the [presentence report] in Snyder’s ca se actually did just that, without any objection from Snyder.” Id. at 1130. 5 Similar to Snyder , Mr. Robinson’s presentence report exam ined underlying state-court documents, without any objection by Mr. R obinson, and determined th at his Arkansas burglary conviction involved entry into a house. True, the presen tence report did not specify the documents upon which it relied, but an y error in that regard would be a

5 Similarly, before Mr. R obinson’s sentencing, other circuits had referred to state-court documents to determine if a defendant convicted under § 5-39-201 necessarily admitted to or was convicted of the elements of generic burglary. See United States v. Pope , 146 F. App’x 536, 540-41 (2d Cir. 2005) (unpublished) (holding that convictions under § 5-39-201 satisfied Taylor because court documents established the convictions involved retail stores); United States v. Thomas , No. 96-3714, 124 F.3d 209 (8th Cir. Sept. 2, 1997) (per curiam) (table) (holding that a conviction under § 5-39-201 satisfied Taylor because the crimin al informations identified the structures burglarized as an office and two residences).9 Taylor / Shepard error to which Mr. Robinson coul d have objected at the time and raised on direct appeal. Mr. Robinson points out that only a few months before his sentencing, the Supreme Court issued James v. United States , 550 U.S. 192 (2007), overruled by Johnson , 135 S. Ct. at 2563. In James , the Court held that a Florida conviction for attempted burglary qualifie d as a violent felony unde r the residual clause. Id. at 209. But the conviction at issue in James— attempted burglary—explicitly did not qualify as a burglary under the elements orenumerated-offenses clauses. See id. at 197. Thus, if it were to count as an ACCA predicate at all, it had to be analyzed under the residual clause. See id. In contrast, Mr. Robinson’s conviction was for burglary, not attempted burglary, and therefore it wa s eligible for consideration under the enumerated-offenses clause. In these circumstances, James does not indicate that the sentencing court relied on the residual clause rather than the enumerated-offenses clause in sentencing Mr. Robinson. In short, considering the record in li ght of the relevant background legal environment, we are unable to conclude th at Mr. Robinson’s prio r Arkansas burglary conviction was considered under the residual clause, rather than the enumerated-offenses clause. “[T]here is no mention wh atsoever of the residual clause in the [presentence report] or any of the other district court pleadings or transcripts. Moreover, give n the relevant background lega l environment that existed at the time of [defendant’s] sentencing, there would have been no need for reliance on the residual clause.” Snyder , 871 F.3d at 1130. As in Snyder , Mr. Robinson’s10 claim “is not a true Johnson claim, but is rather a poorly disguised claim under Taylor . . . , Shepard . . . , and their progeny.” Id. (brackets and internal quotation marks omitted). We therefore affirm the de nial of relief under § 2255 with regard to the Arkansas burglar y conviction. II. Remaining Claims Mr. Robinson raises several claims in addition to the claim upon which COA was granted. For a COA to issue on thes e claims, he must make “a substantial showing of the denial of a c onstitutional right.” 28 U.S.C. § 2253(c)(2). This means that he “must demonstrate that reasonabl e jurists would find th e district court’s assessment of the constitutiona l claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). A. Oklahoma Assault and Batt ery with a Dangerous Weapon The district court held that Mr. Robi nson’s Oklahoma conviction for assault and battery with a dangerous weapon sati sfied the elements cl ause. Under this circuit’s precedent, this conclusi on is not reasonably debatable. See United States v. Taylor , 843 F.3d 1215, 1222-24 (10th Cir. 2016) ( Tommy Taylor ) (concluding that § 645 satisfies an analogo us elements clause), cert. denied , 137 S. Ct. 1608 (2017); see also United States v. Brown , No. 16-6373, 2017 WL 3772 654, at *3 (10th Cir. Aug. 31, 2017) (unpublished) (applying Tommy Taylor to conclude that § 645 satisfies the ACCA’s elements clause), petition for cert. filed , __ U.S.L.W. __ (U.S. Nov. 29, 2017) (No. 17-6993); United States v. Schubert , 694 F. App’x 641,11 645-46 (10th Cir. 2017) (unpublis hed) (same). In light of Tommy Taylor and its progeny, we deny a COA on this issue. B. Independent Due Process Claim Citing United States v. Shipp , 589 F.3d 1084, 10 91 (10th Cir. 2009), Mr. Robinson urges the court to allow hi m to proceed with an independent due process claim. In Shipp , the defendant had received an ACCA-enhanced sentence, but a later Supreme Court decision meant th at one of his prior convictions did not qualify as a violent felony. See id. at 1086, 1090-91. Ther efore, the defendant no longer qualified as an ar med career criminal. Id. at 1091. This court held that “[w]here . . . [the defenda nt] was sentenced beyond the statutory maximum for his offense of conviction, his due pr ocess rights were violated.” Id. Mr. Robinson argues that, similarly, after Johnson he no longer qualifie s as an armed career criminal and therefore he was senten ced beyond the statutory maximum. It is not clear that Mr. Robinson ade quately raised this argument before the district court. But in any event, this is a successive § 2255 motion. As such, it is subject to the restrictions of § 2255(h)(2), which requires a movant to rely on “a new rule of constitutional law, made retroactive to case s on collateral review by the Supreme Court.” Shipp is not a Supreme Court case; here, the only applicable “new rule of constitutional law, made retroactive to case s on collateral review by the Supreme Court” is the rule set forth in Johnson . It follows that under § 2255(h)(2), Mr. Robinson cannot pursue any clai m based on new law except one under Johnson

. And as discussed above, his Johnson claim is meritless. Be cause no reasonable jurist12 could debate whether he is entitled to proceed with an independent due process claim, we deny a COA on that issue. C. Claim Regarding Reopening of Government’s Case In his initial pro se request for a COA, Mr. Robinson complain ed that, after the government had rested and he had moved for acquittal, the trial court allowed the government to reopen its case to present ad ditional evidence. He contends that the reopening violated his right to due process and subjected him to double jeopardy. A COA is denied on this claim because it relies on neither newly discovered evidence nor a new rule of constitutional la w, as required by § 2255(h). In fact, Mr. Robinson made this same claim in hi s first § 2255 motion, and it was rejected because he failed to show go od cause why he did not raise the claim on direct appeal. See Robinson , 401 F. App’x at 335, 336. CONCLUSION The judgment of the district court is affirmed as to the Arkansas burglary conviction. A COA is denied as to all other claims.

Entered for the Court
Carolyn B. McHugh Circuit JudgeUnited States v. Robinson , 17-6046 HOLMES , Circuit Judge, concurring. I join in full the well-written order and judgment in this case. I write separately to address the lack of vitality of United States v. Spring , 80 F.3d 1450 (10th Cir. 1996). Contrary to the government’s arguments, I conclude that Spring was not part of “the relevant background legal environment” at the time of Mr. Robinson’s 2007 sentencing, United States v. Snyder , 871 F.3d 1122, 1129 (10th Cir. 2017), petition for cert. filed , ---- U.S.L.W. ---, (U.S. Dec. 15, 2017) (No. 17- 7157), because it had been abrogated by the Supreme Court’s 2005 decision in Shepard v. United States , 544 U.S. 13 (2005). Specifically, relying on Spring , the government argues that the Arkansas burglary statute at issue here that “require[d] that the structure—whether it is a building or vehicle —be occupiable” “substantially conformed to the [ACCA’s] generic definition of burglary and categorically qualified as a violent felony under the enumerated offense clause.” Aplee.’s Br. 24–25 (emphasis added). See
A RK
. C ODE A NN
. §§ 5-39-101(1), -201 (1987) (proscribing the unlawful entry or remaining in “an occupiable structure,” which includes a “building” or “vehicle” that “is customarily used for overnight accommodation of persons”). In 1996, in Spring , we did hold that an analogous Texas burglary statute, which defined “habitation” to include a “structure or vehicle that is adapted for the overnight accommodation of persons,” qualified as generic burglary under Taylor v. United
States , 495 U.S. 575 (1990). But the government fails to recognize that theCourt’s 2005 decision in Shepardabrogated Spring on the precise issue for which the government cites it. 1 Generally, in Shepard , the Court held that a sentencing court could not look to police reports or applications for criminal complaints to determine whether a prior guilty plea admitted generic burglary. See 544 U.S. at 16, 21, 26. But at the outset of its analysis, the Court specifically stated that the ACCA “makes burglary a violent felony only if committed in a building or enclosed space (‘generic burglary’), not in a boat or motor vehicle .” Id. at 15–16 (emphasis added). In explaining its holding in Taylor , the ShepardCourt specifically differentiated between, on the one hand, its narrow interpretation of generic burglary under the ACCA and, on the other, state statutes that the Court deemed to “define burglary more broadly” on the precise ground that those state statutes extended their burglary definitions to include “entries into boats and cars.” Id. Thus, the Court clearly evinced the view that generic burglary did not extend to

1 Indeed, Mr. Robinson alluded to this argument in his briefing: In those 25 years [prior to Mathis v. United States , --- U.S. ----, 136 S. Ct. 2243 (2016)], the Supreme Court has never extended the generic definition of burglary to vehicles “adapted for overnight accommodation of persons” but has repeatedly stated that vehicles are excluded from the generic definition of burglary. In this regard, Mathis (to say nothing of Shepard , Nijhawan , or Duenas-Alvarez ) has abrogated Spring , and this court may not follow it. Aplt.’s Opening Br. at 26 (emphasis added). 2such vehicles. The Shepard Court’s choice of language is also significant because it altered the requisite analysis by replacing the word “structure,” which we interpreted in Spring , with the term “enclosed space.” Id. at 16. By doing so, the Court refocused the analysis; yet, notably, it specifically maintained the exclusion from the definition of generic burglary of boats, cars, and other modes of transportation. As we explained in United States v. Ramon Silva : By replacing “other structure” with “enclosed space,” the Supreme Court has indicated that the scope of generic burglary would encompass not only those spaces that are designed for occupancy and intended for use in one place, but also other, potentially less complete “enclosed spaces,” so long as they do not resemble a boat, motor vehicle, or other mode of transportation

. 608 F.3d 663, 668 (10th Cir. 2010) (emphasis added). Therefore, not only does Spring ’s analysis rest on a word that the Supreme Court replaced in Shepardin shifting the focus of the generic burglary definition (i.e., “structure”), but it also

runs counter to Shepard ’s express exclusion of modes of transportation from that definition. See Spring , 80 F.3d at 1462 (holding that “burglary of ‘a structure or vehicle adapted for the overnight accommodation of persons[]’ constitutes the burglary of a ‘structure’ within the generic definition of Taylor and thus within the meaning of section 924(e)(2)(B)(ii)” (emphasis added) (quoting United States
v. Sweeten , 933 F.2d 765, 771 (9th Cir. 1991), overruled by United States v. Grisel , 488 F.3d 844 (9th Cir. 2007) (en banc))). Tellingly, since Shepard , we have not cited Spring in either precedential or

3persuasive authority in defining the scope of generic burglary. See, e.g. , Ramon Silva , 608 F.3d 663; United States v. Rivera-Oros , 590 F.3d 1123 (10th Cir. 2009); United States v. Cummings , 531 F.3d 1232 (10th Cir. 2008); United States v. Taylor , 415 F. App’x 96 (10th Cir. 2011) (unpublished); United States v. Mims , 301 F. App’x 790 (10th Cir. 2008) (unpublished); United States v. Roberts , 250 F. App’x 843 (10th Cir. 2007) (unpublished); United States v. Tenderholt , 149 F. App’x 805 (10th Cir. 2005) (unpublished); United States v. Bartlett , 133 F. App’x 515 (10th Cir. 2005) (unpublished). Consequently, in my view, Shepardabrogated Spring and it is no longer good law now—and, more to the point, was not good law at the time of Mr. Robinson’s sentencing, rendering the government’s reliance on it unavailing. I concur on this very limited ground, while also joining in full the well-written order and judgment in this case.

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