UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. BILLY RAY MASON, Defendant – Appellant. No. 17-7011 (D.C. Nos. 6: 16-CV-00195-RAW and 6:09-CR-00100-RAW-1) (E.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and MORITZ , Circuit Judges.

Does textualism 1 prevail even if the results are unsettling? In litigation, facts are

* After examining the briefs and appella te record, this panel has unanimously determined to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10t h Cir. R. 34.1(G). Th e case is therefore submitted on the briefs. This order and judgment is an unpublishe d decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisi ons is not encouraged, but not prohibited. Fed. R. App. 32.1. Citation is appropriate as it relates to law of the case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Any citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

.

1 Textualism is a method of statutory inte rpretation whereby the plain text of a statute determines the meaning of legislation. See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 3-4 (2001). Instead of attempting to determine statutory purpose or legislative in tent, textualists adhere to the objective (Continued . . .) FILED United States Court of Appeals Tenth Circuit 

### October 5, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - critical; or are they? Those questions bear on the issue presented here: Whether assault and battery upon a police officer in viola tion of Okla. Stat. A nn. tit. 21, § 649(B) qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). As it turns out, the details (case facts) of a prior conviction matter not a whit, no matter ho w clear they may be. Because assault and battery under the Oklahoma statute does not have “as an element the use, attempted use, or threatened use of physical force agains t the person of anothe r,” it cannot be a qualifying predicate offense. For that reason, we must reverse and remand.
I. Background In January 2010, Billy Ray Mason pled gu ilty to being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). This offense normally carries with it a maximum sentence of 10 years imprisonment. See 18 U.S.C. § 924(a)(2). The district judge, however, concluded the ACCA applied becaus e Mason had three prior “violent felony” convictions: (1) a 1995 juvenile adjudicatio n for assault and battery with a dangerous weapon; (2) a 2001 conviction for larceny from a person in violation of Okla. Stat. Ann. tit. 21, § 1704(2), and (3) a 2005 Oklahoma conviction for assault and battery upon a police officer in violation of Okla. Stat. Ann. § 649(B) (two counts). See 18 U.S.C. § 924(e)(1), (2)(B)(i). His criminal record exposed him to a mandatory minimum 15- year sentence, see 18 U.S.C. § 924(e)(1), and increa sed his guideline range from 57-71 months to 188-235 months im prisonment. The district judge sentenced him to 188 meaning of the legal text. Id

.- 3 - months. Mason filed a direct appe al, arguing his juvenile ad judication and his conviction for larceny from a person did not constitute predicate offenses under the ACCA. We rejected his arguments and affirmed. See United States v. Mason , 435 F. App’x 726 (10th Cir. 2011) (unpublished). At the time of Mason’s sentencing in Nove mber 2010, an offe nse was a “violent felony” under the ACCA if it (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the elements clause), (2) “is burglary, arson, or extortion, [or] involves use of explosives” (t he enumerated offense clause), or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (the residual cl ause). 18 U.S.C. § 924(e)(2)(B). On June 26, 2015, the United States Supreme Court decide d the residual clause is unconstitutionally
vague. Johnson v. United States (Johnson II) , --- U.S. ---, 135 S. Ct. 2551, 2557, 2563 (2015). It left intact, however, the elem ents and enumerated offense clauses. Id . at 2563. On April 18, 2016, it made Johnson II ’s holding retroactive to cases on collateral review. Welch v. United States , --- U.S. ---, 136 S. Ct. 1257, 1265 (2016). Relying on Johnson II , Mason filed a 28 U.S.C § 2255 motion, arguing his convictions for larceny from a person and assa ult and battery upon a police officer could no longer be deemed violent felonies supporting the ACCA enhancement. The government agreed as to the former but said the latter still qualified as a violent felony- 4 - under the elements clause of the ACCA. 2 Because Mason’s criminal history also included a “serious drug offe nse” under the ACCA, the go vernment concluded Mason still had the necessary predicate offenses: (1) assault and battery with a dangerous weapon, (2) assault and battery upon a polic e officer, and (3) possession with intent to distribute a controlled substance. 3 See 18 U.S.C. § 924(e)(1) (applying a mandatory minimum 15-year sentence to those convicted of violating § 922(g ) and having three previous convictions for a “violent felony” or “serious drug offense”). The judge agreed with the government. Relevant here, he decided Mason’s conviction for assault and battery upon a police officer in viol ation of Okla. Stat. Ann. tit. 21, § 649(B) constituted a violent felony unde r the ACCA. Section 649(B) makes it a

2 We are not bound by the government’s concession that larceny from a person is not a violent felony under the ACCA. United States v. Iverson , 818 F.3d 1015, 1019 (10th Cir. 2016). However, it appears it s concession is well considered. In United States v. Patillar , we held larceny from a person in Okla homa qualifies as a “crime of violence” under the career offender sentencing guideline, USSG §§ 4B1.1, 4B1. 2. 595 F.3d 1138, 1139-40 (10th Cir. 2010). That guideline defines “crime of vi olence” similar to “violent felony” under the ACCA. Importantly, Patillar decided larceny fro m a person did not satisfy the elements clause of the guideline definition but did satisfy its residual clause. Id

. 3 Mason was charged in a single case with assault and battery upon a police officer and possession with intent to distribute a co ntrolled substance. The judge nevertheless concluded they constitu ted two separate predicate offenses for purposes of the ACCA. Mason does not quarrel with that ruling on ap peal. Nor does he argue that his prior conviction for possession of a co ntrolled substance is not a “s erious drug offense” under the ACCA. See 18 U.S.C. § 924(e)(2 )(A) (defining “serious drug offense” as, inter alia , “an offense under State law, involving manuf acturing, distributing, or possessing with intent to manufacture or distribute, a contro lled substance (as defined in section 102 of the Controlled Substances Act (21 U.S. C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law”).- 5 - crime for a “person who, without justifia ble or excusable cause knowingly commits battery or assault and battery up on the person of a police officer . . . while the officer is in the performance of his or her duties . . . .” He concluded the statute could be violated by battery alone or by “assault and battery.” Under his reasoning, ba ttery alone would not qualify as a violent felony under the ACCA because Oklahoma law defines battery as “‘any willful and unlawful us e of force or violence upon th e person of another,’” but “‘only the slightest touching is necessary to constitute the “force or violence” element of battery.’” (R. Vol. 1 at 57 & n.4 (quo ting Okla. Stat. Ann. tit. 21, § 642 and Steele v.
State , 778 P.2d 929, 931 (Okla. Crim. App. 19 89))). The elements cl ause of the ACCA, however, requires “physical force,” whic h the Supreme Court has defined as “ violent force—that is, force capable of causing physical pain or injury to another person.” Johnson v. United States (Johnson I) , 559 U.S. 133, 140 (2010). In doing so, the Supreme Court explicitly rejected the governme nt’s argument that “phy sical force” in the elements clause was equivalent to the force necessary to satisfy co mmon law battery, i.e., the “slightest offensive touching.” Id . at 139. Nevertheless, the judge decided “assault and battery” may require “violent force,” as defined by Johnson I , because it includes assault, which is defined by statute as “‘any willful and unlawful attempt or offer with fo rce or violence to do a corporal hurt to another.’” (R. Vol. I at 57 (quoting Okla. Stat . Ann. tit. 21, § 641)). “[C]orporal hurt” is not defined in the statute so the judge gave it its ordinary meaning: “to cause pain or injury” “of, relating to, or affecting the body.” ( Id . (quoting http://www.merriam-- 6 - webster.com)). This, he said, made “assa ult and battery” upon a police officer, as opposed to simply ba ttery, a violent felony under th e ACCA because it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” ( Id .) Stated differently, it sati sfies the elements clause. Because one violation of the statute would qualify as a violent felony (“assault and battery”) but another would not (battery), the judge used the modified categorical approach to determine which alternative formed the basi s of Mason’s prior conviction. Looking to the chargi ng documents, he decided Mason had been convicted of “assault and battery upon a police o fficer . . . by kicking.” ( Id . at 58 (quotation marks omitted.)) That, he concluded, constituted a violent felo ny under the ACCA’s elements clause. He denied § 2255 relief but ne vertheless conducted a re-sentencing “[b]ecause [the] predicate offenses for ACCA enhancement are different than those used at his previous sentencing.” ( Id . at 58.) He re-sentenced Ma son to 188 months imprisonment. 4 Mason sought a certificate of appealability (COA) to appeal from the denial of his

4 The government has not argued and the judge did not decide that the residual clause was not used at sentencing. Therefore, neither suggested that Johnson II could not be used to save the untimelin ess of the § 2255 motion. Inde ed, the government conceded Mason’s § 2255 motion was timely under 28 U.S.C. § 2255(f)(3) because it was filed within one year of Johnson II

. See 28 U.S.C. § 2255(f)(3) (the one-year statute of limitations for filing a § 2255 motion runs from “the date on which the right asserted was initially recognized by th e Supreme Court, if that right ha s been newly recognized by the Supreme Court and made retroactively applicab le to cases on collateral review”). In any event, the fact the judge re-sentenced him may have restarted the limitations clock. Cf. Burks v. Raemisch , 680 F. App’x 686, No. 16-1247, 2017 WL 727132 (10th Cir. Feb. 24, 2017) (unpublished). Additio nally, the government did not argue and the judge did not decide that Mason’s claim was procedurally defaulted because he c ould have but did not raise the issue in his direct appeal. See United States v. Frady , 456 U.S. 152 (1982).- 7 - § 2255 motion. 28 U.S.C. § 2253(c). We gr anted a COA to decide whether assault and battery upon a police officer in violation of Ok la. Stat. Ann. tit. 21, § 649(B) is a “violent felony” under the elements clau se of the ACCA. We directed the government to file a response and, in addition to other ar guments, address the following issues: 1. Whether the district judge erred in applying the modified categorical approach in light of the United States Supreme Court’s decision in Descamps v. United States , --- U.S. ---, 133 S. Ct. 2276 (2013). 2. The effect of our decisions in United States v. Taylor , 843 F.3d 1215 (10th Cir. 2016), and United States v. Smith , 652 F.3d 1244 (10th Cir. 2011).
II. Discussion We review de novo whether a prior co nviction constitutes a violent felony under the ACCA’s elements clause. United States v. Ridens , 792 F.3d 1270, 1272 (10th Cir. 2015). That determination normally require s us to apply the categorical approach, “focusing on the elements of the crime of conviction, not the underlying facts.” United
States v. Harris , 844 F.3d 1260, 1263 (10th Cir. 2 017). However, if a statute is “divisible,” i.e., it “sets out one or more el ements of the offense in the alternative,” the modified categorical approach applies. Descamps v. United States , 133 S. Ct. 2276, 2281 (2013). Under that approach , a sentencing court may “examine a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.” Id. at 2284 (emphasis added). It then determines whether that alternative constitutes a vi olent felony under the ACCA. None of the above permits- 8 - reference to the facts involv ed in the prior conviction. Section 649(B) makes it a crime for a “person who, without justifiable or excusable cause knowingly commits battery or assault and battery up on the person of a police officer . . . while the o fficer is in the performance of his or her duties . . . .” (Emphasis added). The judge de cided § 649(B) is a divisible statute because it contains multiple alternative elements—it can be vi olated by battery alone or “assault and battery.” 5 Applying the modified categorical approach, he looked to the charging documents to decide which element formed th e basis of conviction. Doing so revealed Mason had been convicted of “assault and battery” upon a police officer, not mere battery. He also discovered that Mason’s offense involved kicking. 6 If kicking a police

5 Mason says it is debatable whether or not § 649(B) is a divisible statute, yet does not suggest that its alternatives ar e means, as oppose d to elements. See Mathis v. United States , --- U.S. ---, 136 S. Ct. 2241, 2249 (2016) (a divisible statute sets out one or more elements, as opposed to various factual me ans of committing a single element, in the alternative). We need not cons ider an issue not presented fo r decision. The parties frame the issue as whether a § 649 (B) “assault and battery” is a violent felony under the ACCA’s elements clause; we limit our analysis accordingly. That said, because battery and “assault and battery” are treated the same in Oklahoma, the resu lt would be the same, regardless of whether § 649(B)’s alternatives (“battery or assault and battery”) are means or elements.
6 The government claims the fact Mason’ s prior conviction involved kicking was not determinative in the judge’s analysis. We see it differently. The judge initially decided that if Mason had been convicted of battery alone, th en his prior conviction is not an ACCA violent felony. However, if his o ffense was for “assault and battery,” it would be. He then quoted the charging document, which revealed Mason had been convicted of assault and battery. Had he stopped there, we would agree with the government on this narrow issue. Yet, the judge continued: “[ Mason] was charged with ‘assault and battery upon a police officer . . . by kicking . . . .’” (R. Vol. 1 at 58.) Later, at re-sentencing, when confronted with two cases in which the federal dist rict courts had concluded assault and battery upon a police officer in violati on of § 649(B) did no t constitute a violent (Continued . . .)- 9 - officer were to be considered the offense, it would constitute a violent felony under the elements clause of the ACCA because it involves “force capa ble of causing physical pain or injury to another person,” Johnson I , 559 U.S. at 140. But the Supreme Court has made clear that the facts forming the basis of conviction are off limits, even under the modified categorical approach. See Descamps , 133 S. Ct. at 2284-85 (explaini ng the modified categorical approach is simply a tool to decide which elements formed the basis of co nviction; it is not to be used to determine the factual basis of the prior conviction). Th e question, therefore, is not whether kicking is a violent felony under the elements clause of the ACCA— it is. Rather, we ask whether assault and battery upon a police officer in vi olation of § 649(B) has “as an element the use, attempted use, or threatened use of ph ysical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i), as th at clause was defined in Johnson I . It does not. We now look to the elements of the offense as the OCCA has interpreted them.
In Steele , the OCCA held: “[O]nly the slightest touching is necessary to constitute the ‘force or violence’ element of battery.” 778 P.2d at 931. In doing so, it said its holding was consistent with the unifor m jury instructions it had adopted. Id . It also

felony under the elements clause of the ACCA, see United States v. Scott , No. 10-CR0087-CVE/16-CV-0397 -CVE-PJC, 2016 WL 6808152 (N.D. Okla . Nov. 17, 2016), United States v. Sitlington , No. CR-11-00360-001-HE, 2 016 WL 7388523 (W.D. Okla. Dec. 20, 2016), the judge distinguished those cases because the courts had not applied the modified approach. This strongly suggests that Mason’s “kicking” the officers was determinative. Even if it was not, however, as we explain, the judge erred in concluding the statute of conviction, § 649(B), satisfies the elements clause of the violent felony definition.- 10 - noted the legislature had not required a certain degree of force for battery. Id . From those factors, it concluded any amount of force, even the slightest touching, is sufficient. Id

. At first glance, it appears Steele is limited to battery. However, Steele was convicted of “assault and battery.” Id . at 930. According to Steele’s arguments, the force required for battery must be of such natu re as to produce physical injury. Id . at 931. He relied on Armstrong v. State , 2 P.2d 100 (Okla. Crim. App. 1931), an “assault and battery” case. In deciding that battery (not “assault and battery”) required only the slightest touching, the OCCA cited cases from other juri sdictions addressing battery as well as those addr essing “assault and battery.” Id . Thus, its holding appears to apply to both battery and “assault and batte ry.” Oklahoma law treats “assault and battery” as equivalent to battery. The OCCA recognizes two types of a ssault: (1) attempted battery and (2) intentionally placing one in f ear of an imminent battery w ith an overt act beyond mere words. Crilley v. State , 181 P. 316, 316 (Okla. Crim. App. 1918); see also United States v. Mitchell , 653 F. App’x 639, 644 (10th Cir. 2016) (unpublishe d). The OCCA has also said: “Battery includes assau lt, but assault does not include battery. When the assault culminates in a battery, the offense is assault and battery . . . .” Hall v. State , 309 P.2d 1096, 1100 (Okla. Crim. App. 1957) (quotati on marks omitted). To state it another way, a battery or an “assault and battery” is a co mpleted assault; the assa ult merges with the- 11 - battery. 7
Oklahoma’s Criminal Pattern Jury Instructions reflect this view. Instruction 4-26 states the elements of “assault and battery” as : willful, unlawful, use of force or violence, upon another person. See http://www.okcca.net/online/ oujis/oujisrvr.jsp?oc=OUJICR%204-26. These elements mirror the statutory definition of battery. See http://www.okcca.net/online/oujis/ou jisrvr.jsp?oc=OUJI-CR%204-3; see also Okla. Stat. Ann., tit. 21, § 642 (“A battery is any willful and unlawful use of force or violence upon the person of another.”). Notably, Oklahoma does not have a separate instruction setting forth the elements of battery. Treating “assault and battery” similar to battery is consistent with the common law. At common law battery was “‘a cons ummated or completed assault’” and was “usually referred to as an assault and battery.” See State v. Maier , 99 A.2d 21, 24 (N.J. 1953) (quoting 2 Burdick, The Law of Crime (1946), § 350); see also Woods v. State , 288 A. 2d 215, 217-18 (Md. Ct. App. 1972) (“[A]s sault is one crime and battery is another.

7 A large drunken man may, with fist drawn back and while towering over and within inches of his petite, cowering wife, th reaten to “knock her he ad off.” That is clearly an assault—the threat of corporal in jury is accompanied by a present ability and an overt act. But, instead of hitting her, he gently touches her cheek and walks away. If the offenses merge, as appears to be the cas e in Oklahoma, what starts as felony assault quickly becomes a commonplace battery. That is not to say that an assault, as described, might qualify as a predicate offense (the thr eatened use of physical force qualifies), but that is not how the OCCA has construed the st atute. When we consider whether a state statute constitutes an ACCA predicate offense, we look to how the state’s highest court (in this case, the OCCA) has interpreted the statute. Harris , 844 F.3d at 1264; see also United States v. Hammons , 862 F.3d 1052, 1055 n.3 (10th Cir. 2017) (the OCCA is the court of last resort for Oklahoma criminal cases).- 12 - There is no single crime properly called assa ult and battery. When the term is used, either it refers to two crimes, or it refers to the crime of battery , and when it does the word assault is superfluous.”). And, as we know, battery at the common law could be “satisfied by even the slight est offensive touching.” Johnson I , 559 U.S. at 139. As the Supreme Court of New Jersey ha s explained, at common law: “It seems that any injury wh atsoever, be it never so smal l, being actually done to the person of a man, in an angry, or re vengeful, or rude, or insolent manner, as by spitting in his face, or any way touchi ng him in anger , or violently justling him out of the way, are batteries in the eye of the law.” 1 Hawkins, Pleas of the Crown, 134. “The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lo west stage of it; ever y man’s person being sacred, and no other having right to meddle with it, in even the slightest manner.” 3 Blackstone’s Commentaries 120. Assault and battery at common law ranged from these minor offenses, which neverthele ss the law cannot afford to overlook, to violence falling just short of manslaughter or murder.
Maier , 99 A.2d at 24 (emphasis added). In sum, there appears to be no signific ant difference between “assault and battery” and “battery” in Oklahoma. And, so it follows, because ba ttery does not satisfy the elements clause (since it can be accomplished by the slightest offensive touching), neither does an “assault and battery.” Our case law supports this conclusion. In United States v. Smith , Smith’s prior conviction was for assault and battery upon an Office of Juvenile Affairs employee in violation of Okla. Stat. tit. 21, § 650.2(D). 652 F.3d 12 44, 1245-47 (10th Cir. 2011). That statute made it a crime for “[e]very pers on in the custody of the Office of Juvenile Affairs who, without justifiable or excusa ble cause, knowingly commits any assault, battery or assault and battery upon the person of an Office of Juvenile Affairs employee- 13 - while said employee is in the performan ce of his or her duties . . . .” Id . at 1246 (quotation marks omitted). The sentencing judge used this conviction to enhance Smith’s sentence under the ACCA. Id . at 1245-46. He objected. We concluded because battery under Oklahoma law required only the slight est touching, assault and battery under § 650.2(D) did not satisfy the elements clause of the “vio lent felony” definition. Id . at 1246-47. The only differences between § 650.2(D) and the statute of conviction in this case, § 649(B), are: (1) the status of the victim a nd (2) § 650.2(D) prohibit s “assault, battery or assault and battery” whereas § 649(B) prohibit s only “battery or assault and battery.” Here these differences are distinctions withou t a difference—the former does not relate to the force element and the latter is imma terial because Mason and Smith’s prior convictions both involved “assault and battery.” More recently, in United States v. Taylor , we concluded assault and battery with a dangerous weapon in violation of Okla. Stat . Ann., tit. 21, § 645 qualified as a violent felony under the ACCA’s elem ents clause. 843 F.3d 1215, 1223-25 (10th Cir. 2016). However, we did so only because of the ex istence of the dangerous weapon element. Id

. Use of a dangerous weapon is not an elemen t of § 649(B). Importantly, in addressing Oklahoma law, we said: “[T]he [OCCA] has he ld that the amount of force necessary to constitute a simple assault or simple battery under Oklahoma law is only the slightest force or touching.” 843 F.3d at 1223 (e mphasis added) (quotation marks omitted). Even assuming the statutory de finition of assault matters, as the judge decided, we- 14 - would reach the same conclusion. The judge hung his hat on the “corporal hurt” element of Oklahoma statutory assault. The government does as well. It, lik e the judge, wants to give that term its ordinary meaning—bodily pain or injury—and ob viously so. Doing so makes Oklahoma assault fit nicely into Johnson I ’s definition of “physical force”—“force capable of causing physical pa in or injury to another pe rson.” 559 U.S. at 140. But there is another definition of “corpo ral hurt”—that deriving from the common law. At common law, that term appears to have included the touching of another’s person. Indeed, common law battery was so metimes referred to as “‘[t]he actual infliction of corporal hurt on another (e.g ., the least touching of another’s person), willfully or in anger, whether by the party’ s own hand or by some means set in motion by him.’” Lynch v. Commonwealth , 109 S.E. 2d 427, 428 (V a. 1921) (quoting Minor’s Synopsis Criminal Law at 77 ). Oklahoma’s statutory defin ition of assault tracks the common law definition of assault. See State v. Townsend , 238 N.W.2d 351, 354 (Iowa 1976); see also Maier , 99 A.2d at 24. It seems that most convictions for assau lt, battery, or assault and battery in Oklahoma will, like Mason’s prior conviction, actually involve forc e capable of causing physical pain or injury. Nevertheless, our an alysis is limited to the least of the acts criminalized by the statute of conviction, as defined by Oklahoma law, not the facts of conviction. See Harris , 844 F.3d at 1264. Oklahoma a ppears to still follow the common law. As a result, assault and battery upon a police officer in violation of § 649(B) does not satisfy the elements cl ause of the ACCA.- 15 - We REVERSE the district court’s denial of Mason’s § 2255 motion and REMAND for further proceedings consistent with this decision.

Entered by the Court:

Terrence L. O’Brien United States Circuit Judge