                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 10, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-7091
          v.                                           (E.D. Oklahoma)
 BILLY RAY MASON,                             (D.C. No. 6:09-CR-00100-RAW-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.



      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); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Billy Ray Mason pled guilty to one count of being

a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was

determined to be an armed career criminal under the Armed Career Criminal Act


      *
        This order and judgment is not binding precedent except under the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 consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
(“ACCA”), 18 U.S.C. § 924(e), and was sentenced to 188 months’ imprisonment,

followed by 48 months of supervised release. Mr. Mason appeals his sentence,

arguing that he was incorrectly sentenced as an armed career criminal. We

affirm.



                                   BACKGROUND

         There is no dispute as to the basic facts leading up to Mr. Mason’s guilty

plea. We accordingly only address the facts relevant to the ACCA sentencing

issue.

         Following Mr. Mason’s guilty plea, and in preparation for sentencing under

the advisory United States Sentencing Commission, Guidelines Manual (2009)

(“USSG”), the United States Probation Office prepared a presentence report

(“PSR”). This PSR, dated May 10, 2010, calculated an advisory Guidelines

sentencing range of 57 to 71 months. It did not recommend sentencing Mr.

Mason under the ACCA.

         The government objected to the PSR, arguing that certain of Mr. Mason’s

prior convictions qualified as predicate violent felonies, and made him eligible for

a sentencing enhancement under the ACCA. 1 The government relied upon the

following three prior offenses committed by Mr. Mason: (1) an October 26, 1995,

         1
       The ACCA provides for a minimum 15-year sentence for a person
convicted of being a felon in possession of a firearm and who has three prior
convictions for “violent felonies.”

                                           -2-
sealed juvenile conviction in Rogers County District Court, Claremore,

Oklahoma, for assault and battery with a dangerous weapon; (2) a December 19,

2001, conviction in Tulsa County District Court, Tulsa, Oklahoma, for larceny

from a person; and (3) a May 10, 2005, conviction in Tulsa County District Court,

Tulsa, Oklahoma, for assault and battery upon a police officer and possession of a

controlled drug with intent to distribute.

      Mr. Mason objected to the ACCA enhancement, arguing that his juvenile

conviction should not count as a violent felony because it was “dismissed” and

because the juvenile record is sealed and it is impossible to determine what kind

of dangerous weapon was used. He also claimed that his conviction for larceny

from a person does not count as a predicate violent felony because the Oklahoma

larceny statute does not have violence as an element.

      In response to these objections, the probation office issued a revised PSR

on August 9, 2010. It rejected Mr. Mason’s objections and recommended a

sentencing enhancement under the ACCA. The amended PSR explained that the

probation officer writing the PSR had contacted the applicable county district

attorney’s office regarding Mr. Mason’s juvenile offense and learned that:

      a dismissal in juvenile proceedings does not negate the delinquent
      adjudication, but instead closes the Court’s interest in the juvenile
      case. In this case, the . . . Rogers County District Attorney’s Office[]
      . . . confirmed that the defendant was adjudicated delinquent, and
      that adjudication was not discounted or thrown out, but . . . the Court
      was, in fact, closing its interest in the case upon the defendant’s
      completion of terms as required by the Court.

                                             -3-
PSR Add. at 2, R. Vol. 3 at 22. The probation officer also obtained a copy of the

Petition charging Mr. Mason with the juvenile crime, which stated that the

offense involved Mr. Mason assaulting a female subject with a knife which had a

stainless steel blade approximately 3-1/8 inches in length. It further alleged that

Mr. Mason held the knife in his hand and used it “to present, menace and threaten

to cut [the female subject] with the unlawful and felonious intent then and there

to do her bodily harm.” Petition at 1, Gov. Ex. 1.

      With respect to the Tulsa County conviction for larceny from a person, the

probation officer obtained a copy of the Judgment and Sentence and the charging

Information, which stated that the offense involved Mr. Mason and two other

individuals robbing a store with the use of a knife and baseball bats, “which they

used to menace and threaten the [victims] with harm if they resisted.”

Information, Gov. Ex. 2. The amended PSR accordingly determined that both

convictions qualified as violent felonies for the purpose of sentencing under the

ACCA. With this enhancement, the applicable advisory Guideline sentencing

range was 188 to 235 months.

      On September 20, 2010, Mr. Mason filed his “Memorandum in Aid of

Sentencing and Objections to Pre Sentence Report.” With regard to the juvenile

conviction, Mr. Mason conceded that the probation officer and the court could

examine “extrinsic documents” to determine whether the conviction qualified as a

violent felony, but argued, without citation to authority, that “where[,] as here,

                                          -4-
the records are sealed, it is unfair to use any documents, not of an official record.

It denies the defendant the use of the whole record or at least the part that may be

used at the defendant’s sentencing without an ability to refute or clarify the

issue.” Mem. at 3, R. Vol. 1 at 15. With respect to the larceny from a person

conviction, he argued that, because the larceny statute did not “contain an element

of violence, the court can not go outside the statutory definition.” Id. He further

asserted, “[e]ven if the modified categorical approach was an issue herein, details

of a case are not documents the court can rely upon to determine if the conviction

may be a predicate for armed career criminal status.” Id. at 15-16.

      The sentencing hearing was held on November 9, 2010. Mr. Mason

admitted that, under the language of 18 U.S.C. § 924(e), his juvenile adjudication

is a qualifying predicate offense. He nonetheless argued that it is unfair to use a

juvenile conviction and he claimed the adjudication itself must contain the

language “violent felony.” Mr. Mason cited no authority for these propositions.

The government disputed these claims, and noted that in the stipulation

adjudicating Mr. Mason delinquent, he stipulated to the facts, including the fact

that he used a knife to assault the victim.

      Mr. Mason also conceded that a recent Tenth Circuit case, United States v.

Patillar, 595 F.3d 1138 (10 th Cir.), cert. denied, 130 S. Ct. 3464 (2010), held that

larceny from a person is a violent felony. Nonetheless, he argued against that

case as precedent, claiming that since force or violence is not an element of the

                                          -5-
Oklahoma larceny statute, larceny from a person cannot be a violent crime for

ACCA purposes. Government counsel responded that there are many ways to

establish a violent felony under the larceny statute and that larceny from a person

falls within the violent crime definition in 18 U.S.C. § 924(e)(2)(B)(ii) (“[A]ny

crime . . . that . . . otherwise involves conduct that presents a serious risk of

physical injury to another.”). The government also pointed out that the

“Judgment and Sentence” and the attached “Findings of Fact-Acceptance of Plea”

relating to Mr. Mason’s larceny conviction established that he pled guilty to

larceny from a person, in which he went “into the Fine Stop [store] with a knife

and made the store clerk give [him] the money that was located in the register.”

Judgment & Sentence at 6.

      After hearing argument from both sides, the district court determined by a

preponderance of the evidence that both prior convictions counted as predicate

violent felonies for purposes of the ACCA. Accordingly, the court determined

that Mr. Mason’s sentence would, at a minimum, be 15 years. Given that the

advisory Guideline range was 188 to 235 months, Mr. Mason asked the court to

vary downward to the statutory minimum of 180 months (15 years). Government

counsel, noting how dangerous Mr. Mason’s conduct was prior to his arrest in the

instant case, advocated for a sentence at the bottom of the Guidelines range (188

months). The court sentenced Mr. Mason to 188 months’ imprisonment.




                                           -6-
      Mr. Mason timely appealed, challenging the determination that the juvenile

assault conviction and the larceny conviction qualified as prior violent felonies

for ACCA purposes.



                                   DISCUSSION

      The ACCA requires a minimum 15-year sentence for a person convicted of

being a felon in possession of a firearm, and who has three prior convictions for

violent felonies. 18 U.S.C. § 924(e)(1). Under the ACCA, a “violent felony” is:

      any crime punishable by imprisonment for a term exceeding one
      year, or any act of juvenile delinquency involving the use or carrying
      of a firearm, knife, or destructive device that would be punishable by
      imprisonment for such a term if committed by an adult, that-

      (i) has as an element the use, attempted use, or threatened use of
      physical force against the person of another; or

      (ii) is burglary, arson, or extortion, involves use of explosives, or
      otherwise involves conduct that presents a serious potential risk of
      physical injury to another[.]

18 U.S.C. § 924(e)(2)(B). This last clause (“or otherwise involves conduct . . .”)

is called the “residual clause.”

      In a series of cases, the Supreme Court has elaborated on how to determine

whether a defendant has been convicted of a “violent felony” under the ACCA.

Accordingly, in most cases, courts will apply the “categorical approach,” pursuant

to which “courts should look ‘only to the statutory definitions of the prior

offenses, and not to the particular facts underlying those convictions.’” United

                                         -7-
States v. Nevels, 490 F.3d 800, 806 (10 th Cir. 2007) (quoting Taylor v. United

States, 495 U.S. 575, 600 (1990)). In employing the categorical approach, we

should “focus on the basic elements of the conviction” so that “[i]f the statutory

elements are consistent with the generic elements of [a crime], then the conviction

satisfies a violent felony.” Id. at 807 (further quotations omitted). This approach

applies equally to convictions pursuant to a guilty plea and convictions following

a jury trial. See Shepard v. United States, 544 U.S. 13 (2005).

      If, however, “the statute encompasses both conduct that would qualify as a

crime of violence and conduct that would not, we employ a modified categorical

approach and look to the statutory elements, the defendant’s charging documents,

plea agreement and colloquy (if any), and uncontested facts found by the district

judge to determine whether the particular defendant’s conduct violated the portion

of the statute that is a crime of violence.” 2 United States v. Wise, 597 F.3d 1141,

1144 (10 th Cir. 2010); see also United States v. Romero-Hernandez, 505 F.3d

1082, 1086 (10 th Cir. 2007).

      Whether a defendant’s sentence is properly enhanced under the ACCA is a

question of law which we review de novo. United States v. West, No. 10-4123,


      2
       USSG §4B1.2 operates very similarly to the ACCA. The Guidelines use
the term “crime of violence,” while the ACCA uses the term “violent felony.”
Because of the similarity in language between 18 U.S.C. § 924(e)(2)(B) and
USSG §4B1.2(a), we look at precedent involving either provision
interchangeably. See United States v. Tiger, 538 F.3d 1297, 1297-98 (10 th Cir.
2008).

                                         -8-
— F. 3d —, 2011 WL 1844112, at *2 (10 th Cir. May 17, 2011). The government

has the burden to prove by a preponderance of the evidence that the enhancement

is warranted. United States v. McMahon, 91 F.3d 1394, 1397 (10 th Cir. 1996).

      As indicated, Mr. Mason claims that neither his juvenile conviction for

assault with a deadly weapon, nor his larceny from a person conviction qualify as

“violent felonies” under either the categorical or the modified categorical

approach. We examine each in turn.

      I. Juvenile conviction

      In October 1995, Mr. Mason was adjudicated a juvenile delinquent on the

charge of assault and battery with a dangerous weapon. The term “violent

felony” encompasses “any act of juvenile delinquency involving the use or

carrying of a firearm, knife, or destructive device.” 18 U.S.C. § 924(e)(1). Since

it is unclear from the charge itself whether the dangerous weapon was a firearm,

knife, or destructive device, the district court, quite properly, reviewed the

charging documents to determine the details of the actual crime.

      The charging document, called “PETITION,” states that Mr. Mason was

charged with committing an assault on the victim with “a knife with a stainless

steel blade approx. 3 1/8" long.” Attached to the Petition was the “Journal Entry

of Judgment for Adjudication Stipulation.” That document contained a statement

that Mr. Mason “knowingly and intelligently waive[d] [his right to have evidence

presented against him] and entered a stipulation to the facts alleged in the

                                         -9-
petition.” That delinquency adjudication fits squarely within § 924(e) as an “act

of juvenile delinquency involving the use or carrying of a . . . knife . . . that has

as an element the use, attempted use or threatened use of physical force against

the person of another” and that “involves conduct that presents a serious potential

risk of physical injury to another.”

      Mr. Mason argues, without citation of authority, that we may not consider

his juvenile record because it is sealed. We are aware of no authority which

prohibits the use of sealed documents for purposes of the ACCA. This argument

deserves no further attention.

      Mr. Mason then makes a broader argument that it is unfair to use juvenile

records to determine sentence enhancements under the ACCA. Our court has

done so. In United States v. Nevels, 490 F.3d 800, 808 (10 th Cir. 2007), we

upheld the use of the categorical approach in examining juvenile delinquency

adjudications:

      If a sentencing court determines from the statutory definitions of
      conviction or the approved Taylor-Shepard supporting documents
      that there was (1) a qualifying act of juvenile delinquency, and it (2)
      involved the use or the carrying of a firearm [,knife, or destructive
      device], then no further inquiry is necessary under the ACCA.

Id. That is precisely what the district court did in this case. The court

accordingly was correct in concluding that Mr. Mason’s juvenile delinquency

adjudication was properly characterized a “violent felony,” a predicate offense

under the ACCA.

                                          -10-
      II. Larceny from a person

      Mr. Mason argues that his conviction for larceny from a person does not

qualify as a predicate “violent felony” for ACCA purposes. He cites no authority

for that proposition. We have held that the Oklahoma offense of larceny from a

person is a crime of violence under USSG §4B1.2(a). United States v. Patillar,

595 F.3d 1138 (10 th Cir. 2010). Because we use cases construing USSG

§4B1.2(a) as precedent for cases involving the ACCA, Patillar refutes Mr.

Mason’s argument. Even were we to take the modified categorical approach to

the question, we would find that Mr. Mason’s conviction for larceny from a

person is a violent felony. The probation officer provided to the district court

documents from Oklahoma (a “Judgment and Sentence,” “Findings of Fact-

Acceptance of Plea,” “Sentence on Plea,” and an “Information”), which establish

that Mr. Mason used a knife and a baseball bat to force a store clerk to give him

cash from the register. We therefore affirm the district court’s determination that

Mr. Mason’s conviction for larceny from a person qualified as a violent felony

under the ACCA.




                                        -11-
                                CONCLUSION

      For the foregoing reasons, we AFFIRM Mr. Mason’s sentence. 3

                                             ENTERED FOR THE COURT

                                             Stephen H. Anderson
                                             Circuit Judge




      3
       Appellee’s “Application for Leave to File Attachments Under Seal” is
granted.

                                      -12-
