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 im posed an enhanced sentence under the Armed Career Criminal Act (A CCA), 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, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, howev er, 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 Court2 First, Peterman contends the district court errone ously determined, over his objection, that his conviction fo r possession of mar ijuana with intent to distribute is a serious drug offense. But th e judgment expressly reflects Peterman’s state conviction for possession of marijuana w ith intent to distribute a nd 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 reje ct Peterman’s argument that, due to a clerical error, the state judgment refl ects 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. 201 1) (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 corre cted through order nunc pro tunc issued by state sentencing court). Thus, we conclude the district c ourt 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 batte ry 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 br iefs 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 im posing an enhanced sentence under the ACCA’s “residual clause” definition of “violent felony” violates due process. 135
S. Ct. at 2563. Both parties assume th e district court relied on the ACCA’s residual clause to classify Peterman ’s assault and battery convic tion 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 pl ain-error standard. And, after the government filed a response brief pointing out this omission, Pe terman 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 (10t h Cir. 2012) (stating “the failure to argue for plain error and its appl ication 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 affi rm 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 w ith documents relate d 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, 201 6). 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, Pete rman didn’t address pl ain error at all.