                                                                                    FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                     TENTH CIRCUIT                           January 10, 2018

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                           No. 17-6018
                                                  (D.C. Nos. 5:16-CV-00649-HE and
CHARLES DEAN COUCHMAN,                                  5:08-CR-00073-HE-1)
                                                             (W.D. Okla.)
             Defendant - Appellant.




                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY


Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.


      In 2008 Charles Dean Couchman pled guilty to being a felon in possession of a

firearm and ammunition. 18 U.S.C. § 922(g)(1). Relevant here, his criminal history

included: (1) a 1992 and 1994 conviction from the State of Oklahoma for burglary in the

second degree; (2) a 1993 conviction from the State of Oregon for burglary in the first

degree; and (3) a 2002 conviction from the State of Missouri for burglary in the second

degree.1



      1
         Couchman’s criminal history also included two escape convictions, which the
judge also relied on in enhancing his sentence under the Armed Career Criminal Act
(ACCA). On direct appeal, we decided these convictions no longer qualified as “violent
felon[ies]” under the ACCA. See United States v. Couchman (Couchman I), 329 F.
       The probation officer concluded these convictions constituted “violent felon[ies]”

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), exposing him

to a mandatory minimum sentence of 15 years (180 months) imprisonment. Id.

§ 924(e)(1). At the time of sentencing, the ACCA defined “violent felony” 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, [or] 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). Id.

§ 924(e)(2)(B). The probation officer calculated an advisory guideline range of 180-210

months imprisonment

       Couchman objected to the application of the ACCA, arguing his prior convictions

did not constitute violent felonies because his prior crimes were not violent. The judge

disagreed. While he “couldn’t tell for certain [whether one of the burglary convictions]

involved a structure,” the other three convictions plainly qualified as violent felonies

under Tenth Circuit precedent. (R. at 41.) He elaborated: “[T]he decisions don’t require

that there be actual violence in particular in connection with a particular offense, but

rather if the burglary, for example, involves a building or structure that’s deemed to

involve a sufficient risk of violence for the nature of it. In any event, . . . Congress [h]as

concluded that those offenses should be considered violent offense[s] for purposes of the


App’x 836, 837-38 (10th Cir. 2009) (unpublished) (citing Chambers v. United States, 555
U.S. 122 (2009)).

                                             -2-
[ACCA].” (Id.) The judge sentenced him to incarceration for 192 months.

       Couchman filed a direct appeal. See United States v. Couchman (Couchman I),

329 F. App’x 836 (10th Cir. 2009) (unpublished). His counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating his belief that no reasonable grounds

for appeal existed, and moved to withdraw. Id. at 837. Couchman responded to the brief

with a letter. Id. Other than complaining about his attorney, he did not identify any

issues for appeal. Id. Nevertheless, pursuant to our duty under Anders, we reviewed the

record and identified several potential appeal issues. Id. Relevant here, we addressed

whether the judge had correctly decided that Couchman had the requisite three prior

violent felony convictions to qualify for an enhanced sentence under the ACCA. Id.

Citing United States v. Hill, 53 F.3d 1151, 1154-55 (10th Cir. 1995), we concluded his

burglary convictions qualified as violent felonies under the ACCA because the charging

documents showed they satisfied generic burglary, i.e., they involved burglary of a

building or structure. Id. at 838. That holding would seemingly resolve any debate about

whether his sentence was enhanced under the enumerated-offense clause or the residual

clause —it was enhanced because of his prior burglaries, the type of crime specifically

enumerated in the statute. However, Couchman wants to add an improbable spin, so we

soldier on.

       On March 29, 2013, Couchman filed his first 28 U.S.C. § 2255 motion claiming

(1) counsel was ineffective for failing to argue his convictions violated the Second

Amendment and (2) his convictions violated the Eighth Amendment and the Ex Post

Facto Clause. The judge denied the motion and we denied a certificate of appealability

                                           -3-
(COA). See United States v. Couchman (Couchman II), 521 F. App’x 636 (10th Cir.

2013) (unpublished).

       On June 26, 2015, the United States Supreme Court decided Johnson v. United

States (Johnson II), --- U.S. ---, 135 S. Ct. 2551 (2015). In Johnson II, it held the residual

clause of the ACCA to be unconstitutionally vague. Id. at 2557, 2563. It left untouched

the remainder of the ACCA’s definition of “violent felony” including the enumerated-

offense clause. Id. at 2563. On April 18, 2016, the Supreme Court made Johnson II’s

holding retroactive to cases on collateral review. Welch v. United States, --- U.S. ---, 136

S. Ct. 1257, 1265 (2016).

       Relying on Johnson II, Couchman filed a motion with this Court on June 2, 2016,

for leave to file a second or successive § 2255 motion. We granted authorization. His

second § 2255 motion claimed that because the residual clause was invalid, his burglary

convictions could only qualify as violent felonies under the ACCA if they satisfied either

the elements clause or the enumerated-offense clause; according to him, they met neither.

Specifically, he claimed they did not constitute violent felonies under the enumerated-

offense clause because the burglary statutes under which he was convicted are broader

than generic burglary. That is a new argument having no relevance to the only issue

properly posited here—whether he was sentenced under the enumerated-offense clause.

As the district judge realized, whether his sentence was proper under that clause is an

issue he could have presented earlier and one not contemplated by Johnson II, which only

provides relief for those sentenced under the residual clause.

       The judge denied Couchman’s motion. He concluded Couchman’s sentence was

                                            -4-
enhanced based on the enumerated-offense clause, not the residual clause. As a result,

Johnson II was inapplicable. Although Couchman tried to rely on Mathis v. United

States, --- U.S. ---, 136 S. Ct. 2243 (2016), to explain why his burglary convictions did

not satisfy the enumerated-offense clause, the judge declined to address Mathis because

this Court had only granted him permission to file a successive § 2255 motion based on

Johnson II. The judge also denied a COA.

       Couchman renews his request for a COA with this court. A COA is a

jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make such a showing, an applicant must demonstrate “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotation marks omitted).

       Couchman argues his sentence was enhanced based on the residual clause, not the

enumerated-offense clause. According to him, the judge’s contrary conclusion is belied

by the record, which reveals the judge relied, at least in part, on the residual clause in

concluding his prior convictions constituted violent felonies under the ACCA. We see it

differently. Both the sentencing record and the “relevant background legal environment

at the time of sentencing” show Couchman’s sentence to have been enhanced based on

the enumerated-offense clause. See United States v. Snyder, 871 F.3d 1122, 1129 (10th

                                             -5-
Cir. 2017) (quotation marks omitted).

       A. The Sentencing Record

       There is no mention of the residual clause in the sentencing record. Moreover, the

enumerated-offense clause explicitly includes “burglary” as a violent felony. 18 U.S.C.

§ 924(e)(2)(B)(ii). The prior convictions used to enhance Couchman’s sentence under

the ACCA were his “burglary” convictions.

       Couchman balks, claiming the judge’s comments at sentencing reveal the residual

clause was at play. He focuses on the following statement: “[T]he decisions don’t require

that there be actual violence in particular in connection with a particular offense, but

rather if the burglary, for example, involves a building or structure that’s deemed to

involve a sufficient risk of violence for the nature of it.” (R. at 41.) He claims the

“sufficient risk of violence” language is akin to the level-of-risk analysis then applicable

to deciding whether the residual clause applied. See James v. United States, 550 U.S. 192

(2007).

       Couchman takes the quoted statement out of context. It was made in response to

his argument that his prior convictions were not “violent felonies” under the ACCA

because none involved actual violence. The judge correctly responded that courts do not

look to a defendant’s actual conduct but to the elements of a prior conviction. And, by

pointing out that burglary of a building or structure is deemed to involve a sufficient risk

of violence for purposes of being a violent felony, the judge was merely reiterating the

legislative history of the ACCA.

       In Taylor v. United States, the Supreme Court relied on that history in defining

                                            -6-
generic burglary for purposes of the ACCA’s enumerated-offense clause. 495 U.S. 575,

581-90 (1990). From that history, the Court drew several useful observations. Id. at 587.

First, Congress’s concern was career offenders who “present at least a potential threat of

harm to persons” because they possess weapons; its concern was not limited to offenders

who had convictions for crimes actually involving violence against persons. Id. at 587-

88. Second, Congress singled out burglary, as opposed to other property crimes, for

inclusion as an ACCA predicate offense because of its “[inherent] potential for violence”:

“The fact that an offender enters a building to commit a crime often creates the

possibility of a violent confrontation between the offender and an occupant, caretaker, or

some other person who comes to investigate. And the offender’s own awareness of this

possibility may mean that he is prepared to use violence if necessary to carry out his

plans or to escape.”2 Id. at 588.

       Were there any further doubts as to the judge’s comments, they are eliminated by



       2
         To say that the judge’s reference to “sufficient risk of violence” could only mean
he was relying on the residual clause is disingenuous. While “risk of violence” was
obviously relevant in deciding whether a prior conviction qualified under the now-
defunct residual clause, i.e., whether it “otherwise involves conduct that presents a
serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii), it is also
relevant to deciding whether a prior conviction satisfies the elements clause, i.e., whether
it “has as an element the use, attempted use, or threatened use of physical force against
the person of another.” Id. § 924(2)(2)(B)(i). That is because the Supreme Court has
held that that clause requires “violent force—that is, force capable of causing physical
pain or injury to another person.” Johnson v. United States (Johnson I), 559 U.S. 133,
140 (2010). And, as we have explained, in defining generic burglary for purposes of the
enumerated-offense clause, the Supreme Court considered the risk of violence present in
a burglary involving a structure or building. That risk of violence is relevant to all three
clauses of the ACCA should come as no surprise; after all, those clauses define “violent
felony.”

                                             -7-
his ending remarks. After rejecting the idea that actual violence is required, he said: “In

any event, . . . Congress [h]as concluded that those offenses should be considered violent

offense[s] for purposes of the [ACCA].” (R. at 41.) In context, this comment obviously

refers to the enumerated-offense clause, which specifically lists “burglary” as a violent

felony. See 18 U.S.C. § 924(e)(2)(B)(ii).

       Moreover, the judge’s earlier comments that he could not tell whether one of the

prior burglary convictions involved a structure demonstrate he was deciding whether

those convictions satisfied the generic definition of burglary for purposes of the

enumerated-offense clause. See Taylor, 495 U.S. at 599 (defining generic burglary for

purposes of the ACCA’s enumerated-offense clause as “any crime, regardless of its exact

definition or label, having the basic elements of unlawful or unprivileged entry into, or

remaining in, a building or structure, with intent to commit a crime”) (emphasis added).

Indeed, in addressing Couchman’s objections to the inclusion of his burglary convictions

as predicate offenses, the probation officer said “Tenth Circuit case law states that

‘Oklahoma’s burglary statute is “nongeneric,” meaning that the facts of the underlying

offense must be reviewed to determine whether it constitutes a crime of violence.’”

(Supp. R. at 33.) The officer then reviewed the charging documents of the convictions,

which revealed they involved burglaries of buildings. And, as we explained above, we

relied on Hill in Couchman’s direct appeal to conclude his prior burglary convictions

were ACCA predicate offenses. In Hill, we decided Oklahoma’s second-degree burglary

statute was broader than generic burglary. 53 F.3d at 1153. Nevertheless, looking to the

charging document, we concluded it included all the elements of generic burglary

                                            -8-
because it alleged Hill had unlawfully entered into a building with the intent to commit a

crime. Id. at 1155. So too in this case, we said. See Couchman I, 329 F. App’x at 838.

As we will soon explain, this analysis is exactly the analysis then used to decide whether

a burglary conviction satisfied the enumerated-offense clause.

       The record clearly reveals that Couchman’s sentence was enhanced based on the

enumerated-offense clause and Johnson II is inapplicable. That would seem to end the

debate. Nevertheless, we turn to “the relevant background legal environment at the time

of sentencing,” as we did in Snyder.

       B. The Relevant Background Legal Environment at the Time of Sentencing

       “[T]he relevant background legal environment is . . . a ‘snapshot’ of what the

controlling law was at the time of sentencing and does not take into account post-

sentencing decisions that may have clarified or corrected pre-sentencing decisions.” See

Snyder, 871 F.3d at 1129 (10th Cir. 2017).

       At the time of Couchman’s sentencing in August 2008, the Supreme Court had

defined generic burglary for purposes of the enumerated-offense clause as the “unlawful

or unprivileged entry into, or remaining in, a building or structure, with intent to commit

a crime.” Taylor, 495 U.S. at 599 (emphasis added). It had also held that in deciding

whether a prior conviction satisfies this generic definition of burglary, a sentencing court

should generally apply the categorical approach, “look[ing] only to the fact of conviction

and the statutory definition of the prior offense.” Id. at 602. However, the Court said

“[t]his categorical approach . . . may permit the sentencing court to go beyond the mere

fact of conviction in a narrow range of cases where a jury was actually required to find all

                                             -9-
the elements of generic burglary. For example, in a State whose burglary statutes include

entry of an automobile as well as a building, if the indictment or information and jury

instructions show that the defendant was charged only with a burglary of a building, and

that the jury necessarily had to find an entry of a building to convict, then the

Government should be allowed to use the conviction for enhancement.” Id. In other

words, when the statute of conviction is broader than the generic offense, a sentencing

court should apply a modified categorical approach, looking to a limited set of documents

to determine of what elements the defendant had been convicted.

       Oregon defines first-degree burglary as “enter[ing] or remain[ing] unlawfully in a

[dwelling] with intent to commit a crime therein.” Or. Rev. Stat. §§ 164.215, 164.225. It

defines dwelling as “a building which regularly or intermittently is occupied by a person

lodging therein at night, whether or not a person is actually present” and defines

“building” to include any “vehicle, boat, [or] aircraft.” Id. § 164.205(1), (2).

Oklahoma’s second-degree burglary statute prohibits “break[ing] and enter[ing] any

building or any part of any building, room, booth, tent, railroad car, automobile, truck,

trailer, vessel or other structure or erection, in which any property is kept, or break[ing]

into or forcibly open[ing], any coin-operated or vending machine or device with intent to

steal any property therein or to commit any felony.”3 Okla. Stat. Ann. tit. 21, § 1435.



       3
         We need not consider his second-degree burglary conviction from Missouri
because his burglary convictions from Oregon (one) and Oklahoma (two) give him the
requisite three violent felonies. Moreover, it appears the judge may have been referring
to the Missouri conviction when he said he could not tell whether it involved a structure.
That is because the presentence report’s description of that conviction referenced the

                                            - 10 -
       Because Oregon and Oklahoma define burglary more broadly than the generic

offense (burglary of a building or structure) to include, for example, burglary of a

vehicle, it would have been proper at the time of sentencing for the judge to look to the

charging documents to decide whether Couchman’s convictions involved a building or

structure.4 The probation officer did just that, discovering the Oregon conviction

involved a dwelling and the Oklahoma convictions involved five storage units and a

business. While Couchman objected to these convictions being used to enhance his

sentence under the ACCA, he did not dispute that the convictions involved a building or

structure. At the time of sentencing therefore “there would have been little dispute” that

these convictions fell within the ACCA’s enumerated-offense clause. Snyder, 871 F.3d

at 1129.

       Considering the record in light of the relevant background legal environment, the

judge correctly found Couchman’s sentence was enhanced based on the ACCA’s



burglary of a storage unit but also referred to forgery of a credit card receipt and theft of a
rental car. Moreover, the information in the PSR came from a police report, not from a
charging document.
       4
         Since Couchman’s sentencing, the Supreme Court has clarified that the modified
categorical approach applies when a statute lists multiple elements in the alternative, not
to those statutes which “enumerate[] various factual means of committing a single
element.” See Mathis, 136 S. Ct. at 2249, 2253-54. We recently suggested that Mathis
precludes use of the modified categorical approach in deciding whether Oklahoma’s
second-degree burglary statute satisfies generic burglary; in other words, we suggested
that the statute’s list of locations does not contain alternative elements but rather
alternative means of satisfying a single locational element. See United States v. Eric
Taylor, 672 F. App’x 860, 863 (10th Cir. 2016) (unpublished). Couchman relies on
Mathis and Eric Taylor but they were decided after his sentencing hearing. The “relevant
background legal environment” does not include such “post-sentencing decisions.”
Snyder, 871 F.3d at 1129.

                                            - 11 -
enumerated- offense clause, not the residual clause. His Johnson II claim, therefore, fails

on the merits.5 See Snyder, 871 F.3d at 1128-30.

       For the reasons explained, the result reached by the district judge is not only

correct, but not reasonably debatable. We DENY a COA and DISMISS this matter.




                                          Entered by the Court:



                                          Terrence L. O’Brien
                                          United States Circuit Judge




       5
         A claim presented in a second or successive § 2255 motion must be based on
newly discovered evidence or “rel[y] on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” See 28 U.S.C. §§ 2244(b)(2), 2255(h). Although Couchman’s second §
2255 motion may “rely on” Johnson II (a matter we need not definitely decide), that case
is inapplicable because the residual clause was not used at sentencing.

                                           - 12 -
