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 argue s 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 un der the ACCA’s enumeratedoffense clause. And we conclude today th at his Kansas conviction for aggravated

* This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judi cata, 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 Court2 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 § 21-3414(a)(1)(C) (1995) (repealed 2011), constitutes a violent-felony conviction under the ACCA’s elements clause.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 fo r defendants with three or more prior convictions for violent fel onies or serious drug offens es who are subsequently convicted of being a felon in possession of a firearm). Accordingly, we affirm the district court’s order denyi ng 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, McMa han admitted he had six prior convictions for Kansas felonies: two for burglar y 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. Th e 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 Mc Mahan’s plea and sentenced him to 15 years in prison. See id. (stating that parties’ stipulati on regarding appropriate sentence “binds the court once the court accepts the plea agreement”). McMahan didn’t appeal. Bu t 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, 126 5 (2016) (applying Johnson3 retroactively). Thus, after Johnson and Welch , the only offenses that constitute violent felonies for ACCA pu rposes are those that sati sfy either its enumeratedoffense clause or its elements clause. See United States v. Pam , 867 F.3d 1191, 1203 (10th Cir. 2017). In other words, predicat e convictions for burglar y, 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 th e use, attempted use, or thr eatened 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 res ponded 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 ag ainst the person of another” and is thus a violent felony under the ACCA’s elemen ts 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 “cr ime 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 and4 Guidelines’ elements clause are substantively identical , we may look to cases interpreting one to interpret other). We granted McMahan a certificate of app ealability because we determined that the district court’s conclusi on was at least debatable. See Slack v. McDaniel , 529 U.S. 473, 483–84 (2000). But for th e reasons stated below, we ultimately agree with the district court’s conclusion that § 21-3414(a)(1)(C) satisf ies 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 McMaha n’s plea allows him to now attack his sentence under Johnson . As part of McMahan’s plea ag reement, the parties stipulated to a 15-year prison sentence. And once the district court accepte d 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—spe cifically 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 A CCA. 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 r each the merits of McMahan’s appeal given that he waived hi s right to collaterall y 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 invalid ate plea agreement based on subsequent change in substantive law). But the gove rnment didn’t invoke McMahan’s collateralattack waiver below. And it ex pressly declined to rely on th e waiver at oral argument. Collateral-attack waivers ar en’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, how ever, “not entirely clear.” Id. ; cf. Day v. McDonough , 547 U.S. 198, 202 (2 006) (holding that c ourts may sua sponte dismiss habeas petitions as untimely when they “confr ont[] no intelligent waiver on the [s]tate’s part,” but warni ng that it would be “an abus e of discretion to override a6 [s]tate’s deliberate waiver of a limitations defense”). We need not resolve this question today; to the exte nt we have discretion to sua sponte enforce McMahan’s collateral attack-waiver, we d ecline to exercise th at 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 pr ior violent-felony conv ictions. § 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) eith er “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 bur glary, arson, or extorti on, [or] involves use of explosives,” § 924(e)(2)(B)(ii). Because a ggravated battery doe sn’t satisfy any portion of § 924(e)(2)(B)(ii)’s enumerated-offense clause, the only dispute here is whether McMahan’s aggravated-battery c onviction 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 elem ent 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, insulti ng or angry manner with a deadly weapon, or in any manner whereby great bodily ha rm, disfigurement[,] or death can be inflicted.” And the parties agree that “intentionally cau sing physical contact with7 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) “criminali zed” 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 pa rticular 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 elem ents 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 elem ents clause. In Treto-Martinez , we considered whether a violation of the exact same version of § 21- 3414(a)(1)(C) constituted a crime of vi olence 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) (d efining 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 us e of physical force against the person of another”), with § 924(e)(2)(B)(i) (defining violent fe lony, in relevant part, as felony that “has as an element the use, attempted use, or thre atened 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 in terpreting one to interpret the other. Williams , 559 F.3d at 1147 n.7. For our pur poses—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 a nother,” § 924(e)(2)(B)(i)—the analyses are identical under the ACCA and the Guidelin es. McMahan doesn’t argue otherwise.8 against the person of anothe r”). In concluding that § 21-3414(a)(1)(C) constitutes a crime of violence for purposes of § 2L1.2, we noted that the st atute requires contact in a manner “whereby great bodily harm, disfi gurement[,] or death can be inflicted.” Treto-Martinez , 421 F.3d at 1160 (quoting § 21-34 14(a)(1)(C)). And we reasoned that any such contact must i nherently 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—whic h prohibits, in releva nt part, “knowingly causing bodily harm to another person . . . in any manner whereby great bodily harm, disfigurement[,] or death can be inflicte d”—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. Accordingl y, 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 woul d entitle McMahan to relief under § 2255. The parties don’t address what effect, if any, our recent decision in9 Conclusion McMahan concedes that his two convi ctions 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 batt ery 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). Ac cordingly, we affirm the di strict 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 gr ounds, we need not discuss it either.