UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

SHANE MCMAHAN, 

 Defendant - Appellant. 

No. 16-3308 

(D.C. Nos. 2:16-CV-02319-JWL and 2:12-

CR-20120-JWL-1) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

Shane McMahan appeals the district court’s order denying his 28 U.S.C. 

§ 2255 motion. Specifically, McMahan argues that the sentencing court erred by 

relying on the now-defunct residual clause of the Armed Career Criminal Act 

(ACCA) of 1984, 18 U.S.C. § 924(e), when it imposed a 15-year prison sentence. See 

Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (striking down ACCA’s 

residual clause as unconstitutionally vague). But McMahan concedes that he has two 

convictions for crimes that constitute violent felonies under the ACCA’s enumeratedoffense clause. And we conclude today that his Kansas conviction for aggravated 

 *

 This order and judgment isn’t binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. But it may be cited for its 

persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 24, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

battery, see Kan. Stat. Ann. § 21-3414(a)(1)(C) (1995) (repealed 2011), constitutes a 

violent-felony conviction under the ACCA’s elements clause. Thus, the sentencing 

court correctly imposed the ACCA’s enhanced penalty. See § 924(e)(1) (imposing 

mandatory minimum 15-year prison sentence for defendants with three or more prior 

convictions for violent felonies or serious drug offenses who are subsequently 

convicted of being a felon in possession of a firearm). Accordingly, we affirm the 

district court’s order denying McMahan’s § 2255 petition. 

Background 

 In 2013, McMahan pleaded guilty to possession of a firearm by a convicted 

felon. See 18 U.S.C. § 922(g)(1). As part of the plea, McMahan admitted he had six 

prior convictions for Kansas felonies: two for burglary of a dwelling, one for 

burglary of a vehicle, one for attempted criminal threat, one for conspiracy to commit 

robbery, and one for aggravated battery. The parties stipulated that McMahan would 

serve a 15-year prison sentence in exchange for the plea. See Fed. R. Crim. P. 

11(c)(1)(C) (authorizing parties to a plea agreement to stipulate to appropriate 

sentence). The district court accepted McMahan’s plea and sentenced him to 15 years 

in prison. See id. (stating that parties’ stipulation regarding appropriate sentence 

“binds the court once the court accepts the plea agreement”). 

McMahan didn’t appeal. But in 2015, the Supreme Court struck down the 

ACCA’s residual clause as unconstitutionally vague. Johnson, 135 S. Ct. at 2557; see 

also Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (applying Johnson
3 

retroactively). Thus, after Johnson and Welch, the only offenses that constitute 

violent felonies for ACCA purposes are those that satisfy either its enumeratedoffense clause or its elements clause. See United States v. Pam, 867 F.3d 1191, 1203 

(10th Cir. 2017). In other words, predicate convictions for burglary, arson, extortion, 

or crimes that involve the use of explosives, see § 924(e)(2)(B)(ii), or for offenses 

that “ha[ve] as an element the use, attempted use, or threatened use of physical force 

against the person of another,” § 924(e)(2)(B)(i), remain convictions for violent 

felonies under the ACCA. See Pam, 867 F.3d at 1203. 

In light of this new legal landscape, McMahan moved to vacate his sentence 

under § 2255. He conceded that his two burglary-of-a-dwelling convictions remain 

convictions for violent felonies under the ACCA. But he argued that his other four 

convictions do not. The government responded that McMahan’s 2003 aggravatedbattery conviction under § 21-3414(a)(1)(C) “has as an element the use, attempted 

use, or threatened use of physical force against the person of another” and is thus a 

violent felony under the ACCA’s elements clause. § 924(e)(2)(B)(i). Citing United 

States v. Treto-Martinez, 421 F.3d 1156 (10th Cir. 2005), the district court agreed 

and thus denied McMahan’s petition. See Treto-Martinez, 421 F.3d at 1160 (holding 

that § 21-3414(a)(1)(C) constitutes “crime of violence” under United States 

Sentencing Guidelines’ elements clause); United States v. Williams, 559 F.3d 1143, 

1147 n.7 (10th Cir. 2009) (explaining that because ACCA’s elements clause and 
4 

Guidelines’ elements clause are substantively identical, we may look to cases 

interpreting one to interpret other). 

We granted McMahan a certificate of appealability because we determined that 

the district court’s conclusion was at least debatable. See Slack v. McDaniel, 529 U.S. 

473, 483–84 (2000). But for the reasons stated below, we ultimately agree with the 

district court’s conclusion that § 21-3414(a)(1)(C) satisfies the ACCA’s elements 

clause. Therefore, we affirm its order.

Analysis 

I. Preliminary Issues 

Initially, we address two preliminary issues that arose at oral argument. First, 

we questioned whether the nature of McMahan’s plea allows him to now attack his 

sentence under Johnson. As part of McMahan’s plea agreement, the parties stipulated 

to a 15-year prison sentence. And once the district court accepted McMahan’s plea, it 

became bound by that stipulation. See Fed. R. Crim. P. 11(c)(1)(C). Thus, McMahan 

arguably wasn’t sentenced under the ACCA at all. See Pam, 867 F.3d at 1198

(explaining that under Rule 11(c)(1)(C), it’s technically “the binding plea agreement 

that is the foundation for the term of imprisonment to which the defendant is 

sentenced” (quoting Freeman v. United States, 564 U.S. 522, 535 (2011) (Sotomayor, 

J., concurring))). And if McMahan wasn’t sentenced under the ACCA, then he 

couldn’t have been sentenced under the ACCA’s unconstitutional residual clause. 
5 

But as we’ve previously explained, when a defendant’s “plea agreement 

expressly used the ACCA—specifically its statutorily mandated minimum term of 

imprisonment—to establish the agreed-upon 180-month sentence,” the defendant 

may challenge that sentence as illegal under Johnson. Pam, 867 F.3d at 1198–99. 

Here, both McMahan’s plea agreement and the district court’s judgment expressly 

referenced § 924(e), which codifies the ACCA’s mandatory 15-year minimum 

sentence. Thus, McMahan’s sentence is based on the ACCA. And he may therefore 

challenge it as illegal under Johnson. See Pam, 867 F.3d at 1198–99. 

Next, we questioned at oral argument whether we should reach the merits of 

McMahan’s appeal given that he waived his right to collaterally attack his sentence 

as part of his plea. We assume without deciding that we could enforce McMahan’s 

waiver had the government asserted it. See United States v. Porter, 405 F.3d 1136, 

1145 (10th Cir. 2005) (declining to invalidate plea agreement based on subsequent 

change in substantive law). But the government didn’t invoke McMahan’s collateralattack waiver below. And it expressly declined to rely on the waiver at oral argument. 

Collateral-attack waivers aren’t jurisdictional, so we have no duty to enforce 

them sua sponte. See United States v. Parker, 720 F.3d 781, 786 n.4 (10th Cir. 2013). 

Whether we may enforce them sua sponte is, however, “not entirely clear.” Id.; cf. 

Day v. McDonough, 547 U.S. 198, 202 (2006) (holding that courts may sua sponte 

dismiss habeas petitions as untimely when they “confront[] no intelligent waiver on 

the [s]tate’s part,” but warning that it would be “an abuse of discretion to override a 
6 

[s]tate’s deliberate waiver of a limitations defense”). We need not resolve this 

question today; to the extent we have discretion to sua sponte enforce McMahan’s 

collateral attack-waiver, we decline to exercise that discretion. Thus, we turn to the 

merits of McMahan’s appeal. 

II. McMahan’s Aggravated-Battery Conviction 

In relevant part, the ACCA imposes a 15-year mandatory minimum prison 

sentence on offenders with at least three prior violent-felony convictions. § 924(e)(1). 

After Johnson, a violent felony is an offense that (1) is “punishable by imprisonment 

for a term exceeding one year,” § 924(e)(2)(B), and (2) either “has as an element the 

use, attempted use, or threatened use of physical force against the person of another,” 

§ 924(e)(2)(B)(i); or “is burglary, arson, or extortion, [or] involves use of 

explosives,” § 924(e)(2)(B)(ii). Because aggravated battery doesn’t satisfy any 

portion of § 924(e)(2)(B)(ii)’s enumerated-offense clause, the only dispute here is 

whether McMahan’s aggravated-battery conviction satisfies the ACCA’s elements 

clause—that is, whether “the use, attempted use, or threatened use of physical force 

against the person of another” is an element of § 21-3414(a)(1)(C). § 924(e)(2)(B)(i). 

At the time of McMahan’s prior offense, § 21-3414(a)(1)(C) defined 

aggravated battery, in relevant part, as “intentionally causing physical contact with 

another person when done in a rude, insulting or angry manner with a deadly weapon, 

or in any manner whereby great bodily harm, disfigurement[,] or death can be 

inflicted.” And the parties agree that “intentionally causing physical contact with 
7 

another person when done in . . . any manner whereby great bodily harm, 

disfigurement[,] or death can be inflicted,” id., is “the least of the acts” that § 21-

3414(a)(1)(C) “criminalized” at the time of McMahan’s offense, United States v. 

Hammons, 862 F.3d 1052, 1054 (10th Cir. 2017). Likewise, the parties agree we 

therefore need only resolve whether this particular language satisfies the elements 

clause. See Hammons, 862 F.3d at 1054 (explaining that under categorical approach, 

we look to whether “the least of the acts criminalized by the [applicable] statute” 

satisfies the elements clause). 

Citing our opinion in Treto-Martinez, the district court ruled that § 21-

3414(a)(1)(C) proscribes a violent felony under the ACCA’s elements clause. In 

Treto-Martinez, we considered whether a violation of the exact same version of § 21-

3414(a)(1)(C) constituted a crime of violence under a substantively identical 

elements clause in the United States Sentencing Guidelines.1 See 421 F.3d at 1158–

59. Compare U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2005) (defining crime of violence, in 

relevant part, as “any offense under federal, state, or local law that has as an element 

the use, attempted use, or threatened use of physical force against the person of 

another”), with § 924(e)(2)(B)(i) (defining violent felony, in relevant part, as felony 

that “has as an element the use, attempted use, or threatened use of physical force 

 1

 Because of the similarity between the ACCA’s elements clause and the 

Guidelines’ elements clause, we often look to cases interpreting one to interpret the 

other. Williams, 559 F.3d at 1147 n.7. For our purposes—i.e., asking whether § 21-

3414(a)(1)(C) contains, as an element, “the use, attempted use, or threatened use of 

physical force against the person of another,” § 924(e)(2)(B)(i)—the analyses are 

identical under the ACCA and the Guidelines. McMahan doesn’t argue otherwise. 
8 

against the person of another”). In concluding that § 21-3414(a)(1)(C) constitutes a 

crime of violence for purposes of § 2L1.2, we noted that the statute requires contact 

in a manner “whereby great bodily harm, disfigurement[,] or death can be inflicted.” 

Treto-Martinez, 421 F.3d at 1160 (quoting § 21-3414(a)(1)(C)). And we reasoned 

that any such contact must inherently involve “at the very least . . . the ‘threatened 

use of physical force.’” Id. at 1160 (quoting § 2L1.2 cmt. n.1(B)(iii)). 

McMahan doesn’t seek to distinguish Treto-Martinez from his case. Rather, he 

argues that Treto-Martinez is no longer good law. But we recently reaffirmed that 

Treto-Martinez remains the law of this circuit in United States v. Trayon Williams, 

No. 17-3071, 2018 WL 1885065, ---F.3d--- (10th Cir. Apr. 20, 2018), which we 

decided after oral argument in this case. See id. at *1, *5–6 (rejecting defendant’s 

argument that Treto-Martinez is no longer good law and holding that current version 

of Kansas’ aggravated-battery statute—which prohibits, in relevant part, “knowingly 

causing bodily harm to another person . . . in any manner whereby great bodily harm, 

disfigurement[,] or death can be inflicted”—is a crime of violence under Guidelines’ 

elements clause (quoting Kan. Stat. Ann. § 21-5413(b)(1)(B))). Therefore, TretoMartinez continues to bind us here. Accordingly, we conclude that aggravated 

battery, as defined by § 21-3414(a)(1)(C), is a violent felony under the ACCA’s 

elements clause.2

 2

 Even if we concluded that § 21-3414(a)(1)(C) is no longer a violent felony 

under the elements clause, it’s not clear that this would entitle McMahan to relief 

under § 2255. The parties don’t address what effect, if any, our recent decision in 
9 

Conclusion

McMahan concedes that his two convictions for burglary of a dwelling 

constitute ACCA predicates. And Treto-Martinez, which remains good law in this 

circuit, compels us to conclude that § 21-3414(a)(1)(C) contains “as an element the 

use, attempted use, or threatened use of physical force against the person of another.” 

§ 924(e)(2)(B)(i). Thus, aggravated battery under § 21-3414(a)(1)(C) is a violent 

felony, and McMahan has the three violent-felony convictions required to sustain his 

sentence under § 924(e)(1). Accordingly, we affirm the district court’s order denying 

McMahan’s § 2255 motion. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

 

United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017), might have on McMahan’s 

claim. Because we affirm on other grounds, we need not discuss it either.