UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ROGER HAROLD PETERMAN, 

 Defendant - Appellant. 

No. 15-6042 

(D.C. No. 5:14-CR-00232-M-1) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, GORSUCH, and MORITZ, Circuit Judges. 

_________________________________ 

Roger Peterman pled guilty to being a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g), and the district court imposed an enhanced sentence 

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based on its 

determination that Peterman had three qualifying prior convictions. Peterman 

challenges the classification of two of those convictions as ACCA qualifying 

felonies. We reject Peterman’s challenge to one conviction, deem his challenge to the 

second conviction waived, and affirm his sentence. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value. See Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

April 1, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

First, Peterman contends the district court erroneously determined, over his 

objection, that his conviction for possession of marijuana with intent to distribute is a 

serious drug offense. But the judgment expressly reflects Peterman’s state conviction 

for possession of marijuana with intent to distribute and that the district court 

sentenced him to a 10-year prison term.1

 That is all the ACCA requires. 18 U.S.C. 

§ 924(e)(2)(A)(ii). And we reject Peterman’s argument that, due to a clerical error, 

the state judgment reflects a conviction for possession with intent to distribute 

instead of his actual conviction of simple possession. As the district court held, this is 

an improper attack on the state judgment. See United States v. Smith, 652 F.3d 1244, 

1246 n.3 (10th Cir. 2011) (noting that defendant in a federal sentencing proceeding 

generally may not collaterally attack validity of prior state conviction); Head v. State, 

146 P.3d 1141, 1149 (Okla. Crim. App. 2006) (explaining under Oklahoma law a 

clerical error in judgment must be corrected through order nunc pro tunc issued by 

state sentencing court). Thus, we conclude the district court didn’t err in classifying 

the marijuana conviction as a serious drug offense. 

Next, Peterman contends the district court erroneously classified his 

conviction of assault and battery of a police officer as a violent felony in light of 

Johnson v. United States, 135 S. Ct. 2551 (2015). Because Johnson was decided 

while this appeal was pending, Peterman didn’t raise this argument below. We 

extended the time for filing appellate briefs to allow both parties to address Johnson. 

 1

 Notably, the related charging document and plea documents reflect the same 

crime—possession of marijuana with intent to distribute. 
3 

In Johnson, the Supreme Court held that imposing an enhanced sentence under 

the ACCA’s “residual clause” definition of “violent felony” violates due process. 135 

S. Ct. at 2563. Both parties assume the district court relied on the ACCA’s residual 

clause to classify Peterman’s assault and battery conviction as a violent felony. But 

even if we assume the same, Peterman didn’t argue in his opening brief that this 

alleged Johnson error warrants reversal under our plain-error standard. And, after the 

government filed a response brief pointing out this omission, Peterman didn’t file a 

reply brief. Thus, Peterman waived appellate review of the alleged Johnson error.

2

 

See United States v. Lamirand, 669 F.3d 1091, 1100 n.7 (10th Cir. 2012) (stating “the 

failure to argue for plain error and its application on appeal . . . surely marks the end 

of the road for an argument for reversal not first presented to the district court” 

(quoting Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011))).3

For these reasons, we affirm Peterman’s sentence. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

 2

 Because Peterman waived review, we dismiss as moot the government’s 

second motion to supplement the record with documents related to this issue. 

3

 This court recently stated that “when an error is obvious enough and satisfies 

Rule 52(b), an appellate court, in its discretion, may recognize the error 

notwithstanding briefing deficiencies.” United States v. Courtney, No. 15-2015, 2016 

WL 930579, at *2 (10th Cir. Mar. 11, 2016). But we decline to exercise that 

discretion here because, unlike the defendant in Courtney, Peterman didn’t address 

plain error in a reply brief; rather, Peterman didn’t address plain error at all.