UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CHAD WALLACE BROWN, a/k/a Chad Johnson, Defendant - Appellant. No. 16-6373 (D.C. No. 5:15-CR-00226-HE-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , McKAY , and MATHESON , Circuit Judges.

________________ _________________ Chad Brown pled guilty to being a fe lon in possession of a firearm, which normally carries a maximum sentence of 10 y ears in prison. 18 U.S.C. § 924(a)(2). The Armed Career Criminal Act (ACCA) sets a 15-year minimum sentence if a defendant has three prior convictions for a violent felony, a seri ous drug offense, or both, committed on different occasions. § 92 4(e)(1). Mr. Brown’s criminal history includes two prior convictions for distri buting a controlled substance and a prior

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

### August 31, 2017
Elisabeth A. Shumaker Clerk of Court2 conviction under Okla. Stat. tit. 21 § 645 for assault and battery with a dangerous weapon. Based on these convictions, the district court applied the ACCA and sentenced him to 15 years in prison. Mr. Brown appeals his sentence, arguing the ACCA does not apply because his drug convictions were not sepa rate offenses and his convic tion for assault and battery with a dangerous weapon is not a violen t felony. He also argues the ACCA is unconstitutionally vague and usi ng it to enhance his sentence violated his right to due
process. We conclude (1) Mr. Brown’s drug convic tions were separate offenses; (2) his conviction for assault and battery with a dangerous weapon qualifies as a violent felony; and (3) Mr. Brown has not shown the ACCA is unconstitutionally vague. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a), we therefore affirm his sentence. 1. Separate drug offenses Mr. Brown’s prior drug convictions stem from two incidents in May of 1997. He sold $50 worth of crack cocaine to a confidential informant, and then, 15 days later, sold $100 worth of the same drug to the same informant in essentially the same place. Mr. Brown was charged in a single information with two counts of unlawful delivery of a controlled drug. He pled guilty to both counts and served concurrent sentences. Mr. Brown argues these offenses were part of the sa me criminal episode3 and should be considered the same offense under the ACCA. 1 We review this question de novo, see United States v. Delossantos , 680 F.3d 1217, 1219 (10th Cir. 2012), and conclude Mr. Brown’s drug c onvictions were se parate offenses. As Mr. Brown recognizes, our precedents do not support his argument. As long as “a defendant commits drug offenses at distinct, different times, we will treat those offenses as separate predicate offenses for purposes of § 924(e)(1).” Id

. (internal quotation marks omitted). This is true even when “the offenses are related by way of charge and convi ction, geographically, by m ode of operation, by the individuals involved in the illegal ac tivity, by the criminal objectives, and temporally.” Id . at 1219-20. We have held that drug transactions only days apart were separate offenses under the ACCA. See United States v. Johnson , 130 F.3d 1420, 1430-31 (10th Cir. 1997) (drug sales on March 23 and March 26 were separate offenses); Delossantos , 680 F.3d at 1218-20 (drug offenses on November 2, November 10, November 16, and November 24 were separate of fenses). Although Mr. Brown’s drug sales may have been relate d, they occurred “at distinct, different times,” so they are separate offenses under § 924(e)(1). Delossantos , 680 F.3d at 1219. Mr. Brown argues that “convictions aris ing from repeat sa les of controlled substances, the subsequent sale s of which are the direct resu lt of the first sale, should be” treated as the same offens e. Aplt. Br. at 21. He ci tes a Fifth Circuit case that

1 There is no dispute the crimes we re “serious drug offense[s]” under 18 U.S.C. § 924(e)(2)(A).4 used similar reasoning to conclude a defend ant’s two prior convic tions were related and therefore should be considered a single conviction unde r U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1 (U.S. Sentencing Comm’n). See United States v. Robinson , 187 F.3d 516, 520 (5th Cir. 1999) . But we have rejected this analysis when determining whether prior o ffenses “occurred on the same occasion for purposes of the ACCA.” Delossantos , 680 F.3d at 1220 n.3 (i nternal quotation marks omitted). 2. Conviction for assault and ba ttery with a dangerous weapon Mr. Brown argues that his conviction for assault and battery with a dangerous weapon under Okla. Stat. tit. 21 § 645 2 is not a “violent felony” under the ACCA. Reviewing this question de novo, see United States v. Titties , 852 F.3d 1257, 1263 (10th Cir. 2017), we reje ct Mr. Brown’s argument. The ACCA defines “violent felony” as a crime punishable by imprisonment for more than a year th at “has as an elemen t the use, attempted us e, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i). Section 645 provides: Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assa ult, battery, or assault and battery upon the person of another with a ny sharp or dangerous weapon, or who, without such cause, shoots at another, with any kind of firearm, air gun, conductive energy weapon or othe r means whatever, with intent to

2 Mr. Brown also was convicted of assa ult with a dangerous weapon under the same statute, but the two o ffenses were part of the sa me criminal episode and the presentence report identified assault and battery with a dangerous weapon as the offense triggering enhancement. See R. Vol. II at 13.5 injure any person, although without the intent to kill such person or to commit any felony, upon convicti on is guilty of a felony . . . . To determine whether a conviction qualif ies as a violent felony, we first ask whether the statute is divisi ble, meaning it includes multip le alternative elements.
See Titties , 852 F.3d at 1266. If it is not divisibl e, we apply the cat egorical approach to determine whether the crime’s elements meet the ACCA’s definition of violent felony. Id . at 1265. “If some conduct that woul d be a crime under the statute would not be a violent felony under the ACCA, then any conviction under that statute will not count toward an ACCA enhancement . . . .” Id . If the statute is divisible, we use the modified categorical a pproach to identify the el ements the defendant was convicted of violating. Id . at 1266. Once we identify the relevant elements, we apply the categorical approach to determ ine whether the conviction qualifies as a violent felony. Id

. We applied this framework to Okla. Stat. tit. 21 § 645 in United States v. Taylor , 843 F.3d 1215 (10th Cir. 2016). In that case, we considered whether assault and battery with a dangerous weapon wa s a “crime of violen ce” under U.S.S.G. § 4B1.2(a)(1). Taylor , 843 F.3d at 1222-24. We concl uded the statute was divisible because “it criminalizes an assault, battery, or assault and battery with a sharp or dangerous weapon, and in the alternative it criminalizes shooting at another with a gun or similar means.” Id. at 1222 (internal quotation ma rks and brackets omitted). We recognized that the first alternative contains sub-alte rnatives: “assa ult, battery,

or assault and battery, and sharp or dangerous weapon.” Id . (internal quotation6 marks omitted). Because the statute wa s divisible, we applied the modified categorical approach to identify the el ements the defendant was convicted of violating. Id . at 1223. As in this ca se, the relevant elements were assault and battery with a dangerous weapon. See id . We then concluded “a conviction under these elements of § 645 is categorically a crim e of violence under all circumstances.” Id

. at 1224 (internal quotation ma rks and citations omitted). Taylor ’s reasoning applies to th is case. The definition of “crime of violence” in U.S.S.G. § 4B1.2(a)(1) is nearly identic al to the ACCA’s definition of “violent felony,” so we often consider U.S.S.G. decisions when applying the ACCA. See United States v. Wray , 776 F.3d 1182, 1184-85 (10t h Cir. 2015). In a recent unpublished decision, we used Taylor ’s reasoning to conclude the crime of assault and battery with a dangerous weapon un der Okla. Stat. tit. 21 § 645 was a violent felony under the ACCA. United States v. Schubert , No. 16-6216, 2017 WL 2333588, at *3-4 (10th Cir. May 30, 2017), see Fed. R. App. P. 32.1, 10th Cir. R. 32.1 (cited for persuasive value). We do the same here. Mr. Brown’s c onviction for assault and battery with a dangerous weapon qualifies as a vi olent felony under the ACCA. 3. Vagueness challenge Mr. Brown argues the ACCA is uncon stitutionally vague because court decisions applying the statute are confus ing and sometimes inconsistent, leaving defendants without notice as to whether thei r prior convictions will subject them to an enhanced sentence. We review this issue de novo, United States v. Michel ,7 446 F.3d 1122, 1135 (10th Cir. 2006), and reject Mr. Br own’s argument because he has not shown the statute is uncons titutional as applied to his case. The government violates due process wh en it takes away a defendant’s liberty “under a criminal law so vague that it fails to give ordina ry people fair notice of the conduct it punishes, or so standardless that it invites arbitr ary enforcement.” Johnson v. United States , 135 S. Ct. 2551, 2556 (2015). This is true of statutes defining crimes as well as t hose fixing sentences. Id . at 2257. But when “a vagueness challenge does not implicate First Amendment freedoms, our review is limited to the application of the statute to th e particular conduct charged.” Michel , 446 F.3d at 1135 (internal quotation marks omitted). Mr. Brown argues ACCA sentence-enhancem ent law is confusing, but he does not claim it deprived him of fair notice that his convictions would result in an enhanced sentence. Because he make s no effort to show the ACCA is unconstitutionally vague as applied to him, we reject his challenge. 4. Conclusion We affirm Mr. Brown’s sentence.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge