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

                             FOR THE TENTH CIRCUIT                          April 20, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-6007
                                                 (D.C. Nos. 5:16-CV-00645-R and
RONALD ERIC BOYD,                                      5:05-CR-00069-R-1)
                                                           (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

           ORDER DENYING A CERTIFICATE OF APPEALABILITY*
                   _________________________________

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

      Ronald Boyd seeks a certificate of appealability (“COA”) to challenge the

denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss the appeal.

                                           I

      In 2005, Boyd pled guilty to one count of being a felon in possession of a

firearm and one count of possessing a firearm during and in relation to a drug-

trafficking crime. The district court concluded he was subject to the sentencing

provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and

U.S.S.G. § 4B1.4, based on two prior drug convictions and one prior conviction for

assault and battery with a dangerous weapon under Okla. Stat. tit. 21, § 645.

      *
         This order is not binding precedent, except under the doctrines of law of the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 consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      After the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.

2551 (2015), which invalidated the residual clause of the ACCA, Boyd filed a § 2255

motion, arguing that his Oklahoma conviction no longer qualifies as a violent felony

under that statute. While his motion was pending before the district court, we issued

a decision in United States v. Taylor, 843 F.3d 1215 (10th Cir. 2016), which

addressed whether the Oklahoma statute under which Boyd was convicted satisfies

the “elements clause” of U.S.S.G. § 4B1.2(a)(1).1 We concluded “the use of a

‘dangerous weapon’ during an assault or battery always constitutes a sufficient threat

of force to satisfy the elements clause.” Taylor, 843 F.3d at 1224 (quotation

omitted). In light of Taylor, the district court held that Boyd’s § 645 conviction

remained a crime of violence regardless of the validity of the residual clause. It

denied his § 2255 motion on the merits and declined to issue a COA. Boyd now

seeks a COA from this court.

                                           II

      A prisoner may not appeal the denial of relief under § 2255 without a COA.

§ 2253(c)(1)(B). We may issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” § 2253(c)(2). Under this standard,

Boyd must show “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


      1
        Although Taylor considered whether § 645 is a crime of violence for
purposes of the Guidelines rather than the ACCA, “the nearly identical language in
those two provisions allows us to consider precedent involving one in construing the
other.” United States v. McConnell, 605 F.3d 822, 828 (10th Cir. 2010).
                                           2
issues presented were adequate to deserve encouragement to proceed further.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

       At the time of Boyd’s offense, Oklahoma’s assault and battery with a

dangerous weapon statute read:

       Every person who, with intent to do bodily harm and without justifiable
       or excusable cause, commits any assault, battery, or assault and battery
       upon the person of another with any sharp or dangerous weapon, or
       who, without such cause, shoots at another, with any kind of firearm or
       air gun or other means whatever, with intent to injure any person,
       although without the intent to kill such person or to commit any felony,
       upon conviction is guilty of a felony punishable by imprisonment in the
       penitentiary not exceeding ten (10) years, or by imprisonment in a
       county jail not exceeding one (1) year.

Okla. Stat. tit. 21 § 645 (1999).

       In Taylor, we concluded that § 645 contains a divisible set of elements: it

criminalizes an assault, battery, or assault and battery with any sharp or dangerous

weapon; and, in the alternative, it criminalizes shooting at another. 843 F.3d at 1223.

Further, the first alternative contains the sub-alternatives of “assault,” “battery,” or

“assault and battery.” Id. We acknowledged that, under Oklahoma law, simple

assault and simple battery require only “the slightest force or touching,” id. at 1223,

but concluded that the additional element of “dangerous weapon” qualifies the

conviction as a crime of violence because “the use of a ‘dangerous weapon’ during an

assault or battery always constitutes a sufficient threat of force to satisfy the elements

clause of § 4B1.2(a)(1),” id. at 1224-25 (quotation omitted).

       Boyd attempts to distinguish Taylor on the ground that his § 645 conviction

was for battery, whereas the defendant in Taylor was previously convicted of assault

                                            3
and battery. Id. at 1223. He contends that any statements in Taylor regarding the

sub-alternative of battery were dicta,2 and that battery with a dangerous weapon does

not qualify as a crime of violence because it can be committed without the use of

“violent force,” see Johnson v. United States, 559 U.S. 133, 140 (2010). Even if we

accept these premises, however, our prior case law indicates that battery with a

dangerous weapon qualifies as a crime of violence under the elements clause.

       In United States v. Treto-Martinez, 421 F.3d 1156 (10th Cir. 2005), we held

that Kansas aggravated battery, which can be committed by “intentionally causing

physical contact with another person when done in a rude, insulting or angry manner

with a deadly weapon,” satisfies the elements clause even if the statute could be

violated without the use of violent force. Id. at 1158, 1160. We explained that even

if such contact were “not sufficient in itself to constitute actual use of physical force

. . . , [it] could always lead to more substantial and violent contact, and thus it would

always include as an element the threatened use of physical force.” Id. at 1160

(quotation omitted).3 The same reasoning applies to battery with a dangerous weapon

with intent to injure.




       2
        To the extent Boyd argues that Taylor was incorrectly decided, “[w]e are
bound by the precedent of prior panels absent en banc reconsideration or a
superseding contrary decision by the Supreme Court.” In re Smith, 10 F.3d 723, 724
(10th Cir. 1993) (per curiam).
       3
        Although a different Guidelines provision was at issue in Treto-Martinez, it
contained an elements clause identical to the ACCA. Compare id. at 1158, with
§ 924(e)(2)(B)(i).
                                            4
                               III

For the foregoing reasons we DENY a COA and DISMISS the appeal.




                                Entered for the Court


                                Carlos F. Lucero
                                Circuit Judge




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