                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          May 15, 2018

                                                                           Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                             Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 17-6079

CORY DEVON WASHINGTON,

      Defendant - Appellant.
                      _________________________________

                    Appeal from the United States District Court
                        for the Western District of Oklahoma
              (D.C. Nos . 5:16-CV-00763-HE and 5:11-CR-00099-HE-1)
                       _________________________________

Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (Mark A. Yancey, United States
Attorney; Ashley Altshuler, Assistant United States Attorney, with him on the brief),
Oklahoma City, Oklahoma, for Plaintiff-Appellee.
                       _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.
                 _________________________________

BALDOCK, Circuit Judge.
                    _________________________________

      In 2011, Defendant Cory Devon Washington pleaded guilty in the Western

District of Oklahoma to two firearm-related offenses. The district court sentenced

him to fifteen years’ imprisonment under the Armed Career Criminal Act (ACCA).
After Johnson v. United States, 135 S. Ct. 2551 (2015), invalidated the ACCA’s

residual clause, Defendant filed a motion to vacate his sentence pursuant to 28 U.S.C.

§ 2255. Notably, this motion was his second § 2255 motion. The district court

dismissed the motion because Defendant did not establish the sentencing court relied

on the residual clause for any of his ACCA predicate offenses.               Exercising

jurisdiction under 28 U.S.C. § 2253(a), we affirm.

                                           I.

      In June 2011, pursuant to a plea agreement, Defendant pleaded guilty to one

count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

and one count of possessing an unregistered firearm in violation of 26 U.S.C.

§§ 5861(d) and 5845(f). Under the ACCA, a defendant convicted of being a felon in

possession of a firearm faces a minimum of fifteen years’ imprisonment if the

defendant has three previous convictions for violent felonies or serious drug offenses.

18 U.S.C. § 924(e)(1). At the time of Defendant’s sentencing, a violent felony was

defined as “any crime punishable by imprisonment for a term exceeding one year”

that (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, involves use of explosives” (the enumerated offense clause); or (3)

“otherwise involves conduct that presents a serious potential risk of physical injury to

another” (the residual clause). § 924(e)(2)(B).

      Defendant’s presentence investigation report (PSR) recommended an enhanced

sentence under the ACCA based on three prior felony convictions: (1) a juvenile

                                           2
adjudication for pointing a weapon; (2) assault and battery with a dangerous weapon;

and (3) burglary in the second degree.           Defendant objected to the PSR’s

recommended sentence, arguing only that the juvenile adjudication for pointing a

weapon did not qualify as a predicate offense under the ACCA. Defendant argued

the adjudication arose from a misdemeanor charge, it was not a conviction, and it was

ultimately dismissed. At a sentencing hearing in December 2011, the district court

rejected all three arguments and held Defendant’s juvenile adjudication qualified as

an ACCA predicate offense. Pursuant to the ACCA, the district court imposed the

mandatory minimum sentence of 180 months’ imprisonment. We affirmed on direct

appeal.1 United States v. Washington, 706 F.3d 1215 (10th Cir. 2012). In 2014,

Defendant filed a § 2255 motion to vacate, set aside, or correct his sentence, alleging

ineffective assistance of counsel.     The district court denied this motion, and

Defendant did not appeal.

      In 2015, the Supreme Court’s decision in Johnson struck the ACCA’s residual

clause as unconstitutionally vague but left the elements clause and enumerated

offense clause intact. 135 S. Ct. at 2563. The Supreme Court later held Johnson is

retroactive in cases on collateral review, allowing defendants previously sentenced

under the ACCA’s residual clause to challenge their sentences. Welch v. United


      1
         We note that a juvenile adjudication can be a “conviction” for the purpose of
the ACCA. See 18 U.S.C. § 924(e)(2)(C) (“[T]he term ‘conviction’ includes a
finding that a person has committed an act of juvenile delinquency involving a
violent felony.”); United States v. Carney, 106 F.3d 315, 317 (10th Cir. 1997)
(“[C]onsider[ing] a defendant’s prior juvenile adjudications for sentencing purposes[]
is entirely consistent with Oklahoma law.”).
                                          3
States, 136 S. Ct. 1257, 1268 (2016). After the Supreme Court decided Johnson and

Welch, Defendant obtained authorization from us to file a second or successive

§ 2255 motion.    In his motion, Defendant argued Johnson rendered his ACCA

sentencing enhancement unconstitutional as to his three prior convictions.        The

district court disagreed and held Defendant did not raise Johnson-based claims but

rather raised Mathis-based claims, which were barred.2 The court then dismissed this

second or successive motion pursuant to § 2244. Defendant filed a motion for a

certificate of appealability, which the district court denied. Defendant then filed a

timely notice of appeal. We granted a certificate of appealability on two issues: (1)

whether Defendant’s motion satisfied the requirements of § 2244(b); and if so, (2)

whether, on the merits, the district court unconstitutionally enhanced Defendant’s

sentence under the ACCA.

                                         II.

      Defendants who file a second or successive § 2255 motion must pass through

two gates before a court may consider the merits of the motion. See 28 U.S.C.

§ 2255(h); United States v. Murphy, 887 F.3d 1064, 1067–68 (10th Cir. 2018); see


      2
         Mathis v. United States, 136 S. Ct. 2243 (2016) held the modified categorical
approach—which allows a court to look at “a limited class of documents . . . to
determine what crime, with what elements, a defendant was convicted of”—may only
be used when a statute lists alternative elements, rather than alternative means. 136
S. Ct. at 2249, 2251. The district court held Defendant’s “Mathis-based claims” were
barred because Mathis did not announce a new substantive rule that applies
retroactively and Defendant did not obtain authorization to raise a Mathis claim.
Mathis becomes relevant to our inquiry today if and only if, as further explained
below, Defendant shows his motion relied on a new rule of constitutional law—i.e.,
the rule articulated in Johnson.
                                          4
also Case v. Hatch, 731 F.3d 1015, 1026–29 (10th Cir. 2013) (adopting the same

gatekeeping process but in the context of second or successive § 2254 motions). At

the first gate, a defendant initially must obtain authorization from the court of appeals

to file the second or successive § 2255 motion in the district court. Case, 731 F.3d at

1026; § 2244(b)(3). To obtain this authorization, a defendant must make a prima

facie showing that his motion relies on:

      (1) newly discovered evidence that, if proven and viewed in light of the
          evidence as a whole, would be sufficient to establish by clear and
          convincing evidence that no reasonable factfinder would have found
          the movant guilty of the offense; or

      (2) a new rule of constitutional law, made retroactive to cases on
          collateral review by the Supreme Court, that was previously
          unavailable.

§ 2255(h).3 The court of appeals must make this determination within thirty days,

usually with only the defendant’s application (and no response from the government)

before it. § 2244(b)(3)(D); Case, 731 F.3d at 1028. In light of these limitations, the

court of appeals’ grant of authorization is only a “preliminary determination”

indicating the claim has “possible merit to warrant a fuller exploration by the district

court.” Case, 731 F.3d at 1028 (quoting Bennett v. United States, 119 F.3d 468, 469

(7th Cir. 1997)).

      Only after a defendant has made this prima facie showing and obtained

authorization may the defendant file a second or successive § 2255 motion. Murphy,

      3
          Although § 2255(h) states the claim must “contain” a new rule of
constitutional law, this Court has interpreted this to mean the claim must “rely on” or
be “based on” a new rule of constitutional law. Murphy, 887 F.3d at 1067 (citing In
re Encinias, 821 F.3d 1224, 1225 n.2 (10th Cir. 2016)).
                                           5
887 F.3d at 1067–68; Case, 731 F.3d at 1029. Then, to pass through the second gate,

a defendant must “back up the prima facie showing . . . with actual evidence to show

he can meet this standard.” Case, 731 F.3d at 1027. If the defendant cannot make

this showing, the district court must dismiss the motion without reaching the merits

of the defendant’s claim.   § 2244(b)(4); Case, 731 F.3d at 1029.       In this case,

Defendant passed through the first gate. But at the second gate, the district court

found Defendant did not show his motion relied on a new rule of constitutional law

and dismissed without reaching the merits.         We review the district court’s

determination de novo. Murphy, 887 F.3d at 1068.

       As explained above, Johnson clearly announced a new rule of constitutional

law, made retroactive on collateral review. See Welch, 136 S. Ct. at 1268. The only

question is whether Defendant’s claim relies on Johnson—that is, whether the district

court enhanced Defendant’s sentence by relying on the ACCA’s residual clause to do

so.   Vital to answering this question is the burden of proof and the burden of

persuasion.   Of course, before a defendant can be convicted of a crime, the

government bears the burden at trial of producing “proof of a criminal charge beyond

a reasonable doubt.”    In re Winship, 397 U.S. 358, 361–62 (1970).        Then, the

defendant may often seek direct review of his conviction. See Fed. R. Crim. P.

32(j)(1). “When the process of direct review . . . comes to an end, a presumption of

finality and legality attaches to the conviction and sentence.” Brecht v. Abrahamson,

507 U.S. 619, 633 (1993) (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)); see

also Case, 731 F.3d at 1027 (noting one of AEDPA’s purposes is the interest in

                                         6
finality); Williams v. United States, 401 U.S. 675, 690–91 (1971) (Harlan, J.,

concurring) (explaining the importance of finality in the criminal context). In light of

this presumption of finality and legality, if the defendant pursues collateral relief, the

burden is on the defendant to establish his claim by a preponderance of the evidence.

See Miles v. Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995); Beeler v. Crouse, 332 F.2d

783, 783 (10th Cir. 1964) (per curiam).

      Defendant asks us to lower his burden on collateral review for equitable

reasons, arguing he only needed to show “the district court could have relied on the

residual clause.”   Op. Br. at 10.      Defendant notes that in many ACCA cases,

including his own, the record is often silent as to which of the three ACCA clauses

the district court used to sentence a defendant. Accordingly, Defendant argues we

should follow the rule first articulated in Stromberg v. California, 283 U.S. 359

(1931).   Stromberg held that where a general jury verdict rests on one of three

possible grounds and one of those grounds is unconstitutional, the conviction must be

set aside. 283 U.S. at 369–70. We decline to extend the Stromberg rule, which has

historically only applied to general jury verdicts, to the case before us. See Zant v.

Stephens, 462 U.S. 862, 881 (1983) (stating the cases that have applied the Stromberg

rule all involved general verdicts). In the general verdict context, a reviewing court

does not have any tools to determine whether a jury’s general verdict relied on the

unconstitutional ground.     See Stromberg, 283 U.S. at 368.          In Johnson cases,

however, a court can often determine whether the district court relied on the residual

clause in sentencing by looking to “the relevant background legal environment that

                                            7
existed at the time of [the defendant’s] sentencing” and the PSR and other relevant

materials before the district court. See United States v. Snyder, 871 F.3d 1122, 1128–

30 (10th Cir. 2017), cert. denied, 584 U.S. __ (2018).4

      Finding Defendant’s Stromberg argument insufficiently persuasive to deviate

from the general rule regarding the defendant’s burden on collateral review, we hold

the burden is on the defendant to show by a preponderance of the evidence—i.e., that

it is more likely than not—his claim relies on Johnson. In so doing, we join two of

our sister courts. See Dimott v. United States, 881 F.3d 232, 240–43 (1st Cir. 2018),

petition for cert. filed, 86 U.S.L.W. 3453 (U.S. Mar. 8, 2018) (No. 17-1251); Beeman

v. United States, 871 F.3d 1215, 1221–25 (11th Cir. 2017). But see United States v.

Geozos, 870 F.3d 890, 896 (9th Cir. 2017) (holding a defendant need only show the

sentencing court “may have” relied on the residual clause to establish his claim relies

on Johnson); United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (same).

      With a proper understanding of where the burden lies, we now address whether

Defendant met his burden. Defendant argues he can show by a preponderance of the

evidence that the sentencing court used the residual clause to enhance his sentence

      4
         To be clear, Snyder answered a different question than the one before us
today because the § 2255 motion at issue in that case was not a second or successive
motion. See 871 F.3d at 1126 n.1 (explicitly stating it was not resolving the issue of
when a claim “relies on” Johnson). Snyder held that a defendant need only “invoke”
Johnson within one year for the claim to be timely. Id. at 1125–26. After finding the
defendant filed a timely Johnson claim, Snyder affirmed—on the merits—the district
court’s factual finding that the sentencing court did not use the residual clause in
sentencing the defendant by looking to the relevant background legal environment
and the materials before the district court. Id. at 1128–30. Yet, as the leading
authority in this circuit on determining if a sentencing court used the ACCA’s
residual clause in sentencing, Snyder is highly relevant to our inquiry today.
                                          8
regarding his burglary conviction and his pointing-a-weapon conviction. Given the

sentencing court did not state upon which clause it was relying, Defendant must show

the relevant background legal environment at the time of his sentencing in December

2011 and the record before the sentencing court establish he was sentenced under the

residual clause. See Snyder, 871 F.3d at 1128–30.5

                                          A.

      We first consider Defendant’s second-degree burglary conviction. “According

to the Information, . . . [in] 1994, the defendant kicked in two front doors to a

building located in Hobart, Oklahoma, with the intent to steal property from the

building,” in violation of Okla. Stat. tit. 21, § 1435. ROA Vol. II at 12.6 Burglary is


      5
         As to both of Defendant’s convictions, the sentencing court could have
employed the modified categorical approach when the statutory definition proscribed
a range of conduct broader than the ACCA’s definition of violent felony. United
States v. Ramon Silva, 608 F.3d 663, 665, 669 (10th Cir. 2010), abrogated by Mathis
v. United States, 136 S. Ct. 2243 (2016). That is, the court could have looked beyond
“the fact of conviction and the statutory definition of the prior offense” to “charging
documents and documents of conviction” to determine whether Defendant’s
convictions fell within the ACCA’s definition of violent felony. Id. at 669 (citing
United States v. Hernandez, 568 F.3d 827, 829 (10th Cir. 2009)).
      6
         Defendant’s PSR containing this fact—and not the Information itself—was
before the sentencing court. Defendant argues relying on the PSR alone would have
violated Shepard v. United States, 544 U.S. 13 (2005), which limits the type of
documents a court may look to when enhancing a sentence under the ACCA’s
enumerated offense clause for a prior burglary conviction. Thus, Defendant argues,
the court must have relied on the residual clause. At the time of Defendant’s
sentencing, however, this Court had upheld a district court’s reliance on a PSR in
enhancing a sentence under the ACCA where the PSR was based in part on court
records and the defendant did not object to the PSR. See United States v. Harris, 447
F.3d 1300, 1305–06 (10th Cir. 2006). As noted above, the relevant part of
Defendant’s PSR was based on the Information. Furthermore, Defendant did not
object to the PSR’s description of his Oklahoma burglary conviction, which “created
                                          9
listed in the ACCA’s enumerated offense clause. § 924(e)(2)(B). For a conviction to

qualify as “burglary” under this clause, it must contain the following elements: “an

unlawful or unprivileged entry into, or remaining in, a building or other structure,

with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990).

At the time of Defendant’s sentencing, Oklahoma second-degree burglary involving

entering a building—i.e., the crime for which Defendant was convicted—fell within

Taylor’s definition of generic burglary, meaning it qualified as an ACCA predicate

under the enumerated offense clause. See, e.g., United States v. Green, 55 F.3d 1513,

1515–16 (10th Cir. 1995); United States v. Hill, 53 F.3d 1151, 1153–55 (10th Cir.

1995) (en banc). Defendant cites no authority indicating Oklahoma second-degree

burglary also qualified under the ACCA’s residual clause.7 Given this background

legal environment, “there would have been little dispute at the time of [Defendant’s]

sentencing that his [Oklahoma second-degree burglary conviction] fell within the

scope of the ACCA’s enumerated crimes clause.”8 See Snyder, 871 F.3d at 1129.


a factual basis for the court to enhance his sentence under the ACCA.” Id. at 1306.
Therefore, the district court could have relied on the PSR to determine whether his
burglary conviction qualified as an ACCA predicate offense under the enumerated
offense clause.
      7
        Defendant only points us to non-binding precedent concerning other states’
burglary statutes and one Tenth Circuit case—United States v. Venegas-Ornelas, 348
F.3d 1273 (10th Cir. 2003)—analyzing whether Colorado first-degree criminal
trespass qualifies as a “crime of violence” under 18 U.S.C. § 16(b). As cases like
Green and Hill squarely addressed the issue before the district court, it is highly
unlikely the court instead considered these inapposite cases Defendant cites.
      8
        This conclusion is the same the district court deduced in Defendant’s first,
pre-Johnson § 2255 motion. In that motion, Defendant claimed ineffective assistance
                                         10
Therefore, Defendant certainly has not established by a preponderance of the

evidence that the sentencing court used the residual clause to qualify his second-

degree burglary conviction as an ACCA predicate offense.

                                           B.

      Defendant also argues the district court more likely than not relied on the

residual clause in determining his Oklahoma juvenile adjudication for pointing a

weapon was an ACCA predicate offense. The Government asserts Defendant waived

this argument by not raising it at the district court level. The district court did indeed

conclude that “Petitioner does not claim that the court relied on the residual clause to

determine that the [pointing-a-weapon adjudication] was a violent felony[.]” Supp.

ROA at 149. But in Defendant’s pro se § 2255 motion, he clearly argued as his “last

and final argument” that the district court enhanced his sentence by relying on the

residual clause for his pointing-a-weapon adjudication:

      [t]he movants instant Federal sentence of 15 years was applied through
      the sentencing enhancement under the Armed Career Criminal Act
      (“ACCA”), 18 U.S.C. § 924(e)(2)(B)’s residual clause. The government
      had taken the movants pass [sic] prior convictions previously mentioned
      [i.e., his burglary conviction and pointing-a-weapon adjudication], and
      increased his sentence under the “catch-all” definition of “violent
      felony” contained in the Armed Career Criminal Act’s §924(e)(2)(B)’s
      residual clause.




of counsel because his counsel failed to argue his Oklahoma second-degree burglary
conviction did not constitute a “violent felony” under the ACCA. The district judge,
who was also the judge at Defendant’s sentencing, held Defendant’s conviction fell
within Taylor’s definition of “burglary” and was thus an ACCA predicate offense.
ROA Vol. I at 199–201.
                                           11
Id. at 63.   The district court subsequently appointed counsel for Defendant, and

counsel submitted a supplemental brief, which explicitly incorporated Defendant’s

prior pro se § 2255 motion. Id. at 69. While “[w]e generally do not consider issues

raised for the first time on appeal[,]” United States v. Mora, 293 F.3d 1213, 1218

(10th Cir. 2002), Defendant raised the issue in his pro se § 2255 motion and not for

the first time on appeal. We, therefore, consider his argument.

      In 1992, “the defendant willfully, and without lawful cause, pointed a Colt

M16 rifle at an Oklahoma Highway Patrol trooper for the purpose of threatening and

intimidating him, and with the unlawful, malicious intent to injure the trooper

physically, or for the purpose of mental or emotional intimidation.” ROA Vol. II at

10. Defendant’s case was adjudicated in juvenile court for violating Okla. Stat. tit.

21, § 1289.16, which stated:

      [I]t shall be unlawful for any person to willfully or without lawful cause
      point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or
      not, at any person or persons for the purpose of threatening or with the
      intention of discharging the firearm or with any malice or for any
      purpose of injuring, either through physical injury or mental or
      emotional intimidation or for purposes of whimsy, humor or prank . . . .9


      9
         Defendant notes the factual summary in his PSR did not include “a statutory
citation let alone a numerical reference to a specific subsection of the charged
statute.” Rep. Br. at 9. Thus, Defendant argues the court could not have been certain
of the elements of which Defendant was convicted. Id. at 8–9. The Addendum to the
PSR, however, states “both the probation officer and defense counsel agree that the
defendant could have been convicted under one of two possible statutes.” ROA Vol.
II at 31. It then lists the misdemeanor pointing-a-weapon statute and the felony
pointing a firearm statute, Okla. Stat. tit. 21, § 1289.16. Id. Given the language in
the factual summary of Defendant’s PSR tracks almost verbatim the language in
§ 1289.16 (and not the misdemeanor pointing-a-weapon statute), the court
determined Defendant was convicted under § 1289.16. ROA Vol. I at 112–14.
                                         12
§ 1289.16 (amended 1995).

      Defendant argues the district court more likely than not relied on the residual

clause in classifying this adjudication as an ACCA predicate offense because the

background legal environment at the time of Defendant’s sentencing reveals “the

residual clause offered the path of least analytical resistance.”      Rep. Br. at 6.

Defendant notes many “low-level crimes,” such as eluding a police officer,

discharging a firearm at an occupied building or vehicle, and failing to stop at the

command of a police officer, fell within the scope of the residual clause. Id. (citing

United States v. Thomas, 643 F.3d 802 (10th Cir. 2011); United States v. Ford, 613

F.3d 1263 (10th Cir. 2011); United States v. Wise, 597 F.3d 1141 (10th Cir. 2011)).

Defendant argues since these crimes fell within the residual clause, the district court

likely concluded Defendant’s pointing-a-weapon conviction did as well.

      The relevant background legal environment at the time of Defendant’s

sentencing, however, included more than just a broadly defined residual clause. It

also included two cases that analyze statutes similar to the Oklahoma pointing-a-

weapon statute: United States v. Herron, 432 F.3d 1127 (10th Cir. 2005), and United

States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010).        In Herron, we held the

Colorado menacing statute, which involved “knowingly plac[ing] or attempt[ing] to

place another person in fear of imminent serious bodily injury . . . . by the use of a

deadly weapon,” fell within the elements clause. 432 F.3d at 1137–38 (citing Colo.

Considering this statute and the factual summary in the PSR, the court could have
indeed determined the elements of the crime of which Defendant was convicted.
                                          13
Rev. Stat. Ann. § 18-3-206 (1999) (amended 2000)). In so doing, we noted “[t]his

conduct easily satisfies the requirement of ‘the threatened use of physical force

against the person of another,’ under the ACCA.” Id. at 1138 (citing 18 U.S.C.

§ 924(e)(2)(B)(i)). In Ramon Silva, we held the New Mexico “apprehension causing”

aggravated assault statute, which “requires proof that a defendant purposefully

threatened or engaged in menacing conduct toward a victim, with a weapon ‘capable

of producing death or great bodily harm,’” also fell within the elements clause. 608

F.3d at 670 (citing N.M. Stat. § 30-1-12(B)); see also N.M. Stat. § 30-3-5.         We

explained that threatening a victim with a weapon “threatens the use of ‘violent

force’ because by committing such an act, the aggressor communicates to his victim

that he will potentially use ‘violent force’ against the victim in the near-future.” Id.

(quoting Curtis Johnson v. United States, 559 U.S. 133, 140 (2010)).

      As Defendant pointed a rifle at a trooper “for the purpose of threatening and

intimidating him,” ROA Vol. II at 10, Herron and Ramon Silva would have supported

the district court’s decision to consider this crime under the elements clause.10 In


      10
          We also note that, at the time of Defendant’s sentencing, we had affirmed a
district court that held Okla. Stat. tit. 21, § 1289.16 qualified as a “violent felony”
under the elements clause. United States v. Brothers, 438 F.3d 1068, 1074 (10th Cir.
2006), abrogated on other grounds by Arizona v. Gant, 556 U.S. 332 (2009). Even
though the defendant in that case did not challenge the district court’s conclusion that
the statute “clearly has as an element the threatened use of physical force against
another person” on appeal, we nonetheless noted that we did not “perceive any error
in the [district] court’s analysis” on that point and affirmed. Id. Given the defendant
had not argued § 1289.16 did not fall within the elements clause, this statement was
dictum and would have only had persuasive value to the sentencing court. See Obiter
Dictum, Black’s Law Dictionary (10th ed. 2014) (defining dictum as “[a] judicial
comment made while delivering a judicial opinion, but one that is not necessary to
                                          14
fact, three years after Defendant’s sentencing, this Court relied on Herron to

conclude that a conviction for pointing a firearm “for the purpose of threatening and

intimidating” another person under § 1289.16 qualified as an ACCA predicate

offense under the elements clause. United States v. Hood, 774 F.3d 638, 645–46

(10th Cir. 2014), abrogated by Mathis v. United States, 136 S. Ct. 2243 (2016). This

was the exact same offense Defendant committed. Compare Hood, 774 F.3d at 646

(stating the defendant “willfully, knowingly, and without lawful cause, pointed a .45

caliber ACP at [someone], for the purpose of threatening and intimidating him and

with the malicious and felonious intent to injure [him] either physically or by mental

and emotional intimidation”), with ROA Vol. II at 10 (stating Defendant “willfully,

and without lawful cause, pointed a Colt M16 rifle at [a trooper] for the purpose of

threatening and intimidating him, and with the unlawful, malicious intent to injure

the trooper physically, or for the purpose of mental or emotional intimidation”).

While Hood was, of course, not a part of the background legal environment at the

time of Defendant’s sentencing, Hood faced a nearly identical legal environment as

Defendant’s sentencing court. See Hood, 774 F.3d at 645–46 (citing only one Fourth

Circuit case decided after Defendant’s sentencing in the relevant discussion). Hood

is thus relevant in that it indicates the law at the time of Defendant’s sentencing

would have allowed the district court to determine Defendant’s conviction under

§ 1289.16 fell within the elements clause.


the decision in the case and therefore not precedential (although it may be considered
persuasive)”).
                                             15
      Even though the district court could have legally relied on the elements clause,

Defendant argues Curtis Johnson v. United States, 559 U.S. 133 (2010), renders it

unlikely the district court did so without some discussion of how Oklahoma state

court decisions interpreted the pointing-a-weapon statute. In Curtis Johnson, the

Supreme Court interpreted the element clause’s “physical force” as requiring “violent

force—that is, force capable of causing physical pain or injury to another person.”

559 U.S. at 140. In so doing, the Court noted it was bound by a state’s highest court

decisions interpreting state statutes. Id. at 138. This holding, however, does not

necessarily mean that a court must discuss state court decisions before relying on the

elements clause. See, e.g., Hood, 774 F.3d at 643–47 (not discussing any state court

decisions but concluding the conviction fell within the elements clause). Therefore,

the sentencing court’s lack of discussion about Oklahoma state court decisions

interpreting the pointing-a-weapon statute does not make it more likely that the court

relied on the residual clause.

      In short, neither the relevant background legal environment nor the materials

before the district court reveal that the court more likely than not used the residual

clause for either conviction in sentencing Defendant.      Thus, Defendant has not

established by a preponderance of the evidence that his motion “relies on” Johnson.

Because Defendant has not satisfied the gatekeeping requirements of § 2244, we need

not reach the second issue on which this Court granted COA. Accordingly, the

district court’s order is AFFIRMED.



                                         16
