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

                             FOR THE TENTH CIRCUIT                         October 24, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-6128
                                                 (D.C. Nos. 5:16-CV-00738-D and
BILLY DWIGHT SMITH, JR.,                               5:00-CR-00049-D-1)
                                                           (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

           ORDER DENYING A CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

      In 2001, Billy Dwight Smith, Jr. was convicted of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1) and sentenced under the Armed

Career Criminal Act (ACCA), id. § 924(e)(1). In 2003, he brought an unsuccessful

28 U.S.C. § 2255 motion. After the Supreme Court decided Johnson v. United

States, 135 S. Ct. 2551 (2015), he sought and obtained this court’s authorization to

file a second § 2255 motion. The district court denied that motion, and Mr. Smith



      *
         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); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order is not binding precedent, except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.
now seeks a certificate of appealability (COA) to appeal that denial. We deny a COA

and dismiss this matter.

                                     BACKGROUND

      The ACCA requires a minimum fifteen-year sentence for a defendant who

violates § 922(g) and “has three previous convictions . . . for a violent felony or a

serious drug offense.” 18 U.S.C. § 924(e)(1). Mr. Smith’s three predicate

convictions were two robberies with firearms in violation of Okla. Stat. tit. 21, § 801

and a burglary in the second degree in violation of Okla. Stat. tit. 21, § 1435. At

sentencing, Mr. Smith did not challenge whether the robbery convictions qualified as

violent felonies. His only objection was that under Taylor v. United States, 495 U.S.

575, 598-99 (1990), the burglary conviction did not qualify as a “generic” burglary

and therefore was not a “violent felony” as defined by the ACCA.

      The sentencing court stated:

      Unquestionably, the two robbery convictions fall within the ACCA’s
      definition of violent felony:
             (B) the term “violent felony” means any crime punishable by
             imprisonment for a term exceeding one year . . . that –
                    (i) has as an element the use, attempted use, or threated use of
                    physical force against the person of another; or
                    (ii) is burglary . . .
      18 U.S.C. § 924(e)(2)(B). However, the defendant argues that the burglary
      offense does not fall within this definition.
R., Vol. 1 at 30. The district court rejected Mr. Smith’s arguments regarding the

burglary conviction, held that it qualified as a violent felony, and imposed an


                                             2
ACCA-enhanced sentence. This court affirmed. United States v. Smith,

33 F. App’x 462, 466 (10th Cir. 2002).

      The sentencing court’s quote encompassed two of the ACCA’s three

definitions of “violent felony.” Section 924(e)(2)(B)(i) is known as the “elements

clause” or the “force clause,” and the first half of § 924(e)(2)(B)(ii), which lists four

specific offenses (including burglary), is known as the “enumerated offenses clause.”

In addition to omitting the non-relevant enumerated offenses, the sentencing court

excised the second half of § 924(e)(2)(B)(ii), which is the ACCA’s third definition of

“violent felony”—an offense that “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” This second half of § 924(e)(2)(B)(ii) is

known as the “residual clause.”

      Long after Mr. Smith’s sentencing, Johnson invalidated the residual clause for

being unconstitutionally vague. 135 S. Ct. at 2557, 2563. Once the Supreme Court

made Johnson retroactive to cases on collateral review, see Welch v. United States,

136 S. Ct. 1257, 1265 (2016), this court authorized Mr. Smith to bring a second

§ 2255 motion relying on Johnson.

      The district court accepted Mr. Smith’s second § 2255 motion as timely but

rejected it on the merits,1 finding that the sentencing court did not rely on the residual

clause in sentencing him. It dismissed the second § 2255 motion and denied a COA.


      1
        Mr. Smith argues before this court that the district court rejected his motion
as untimely, but he is incorrect. See R., Vol. 1 at 106 (“After receiving the court of
appeals’ authorization, Defendant filed his pro se Motion within one year after the
Johnson decision, and thus, the Motion is timely under § 2255(f)(3).”).
                                            3
                                    DISCUSSION

      To obtain a COA, Mr. Smith must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court rejected

his constitutional claim on the merits, he “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Johnson invalidated only the residual clause; it explicitly stated that it “[did]

not call into question application of the [ACCA] to the four enumerated offenses, or

the remainder of the [ACCA’s] definition of a violent felony.” 135 S. Ct. at 2563.

So an applicant is not entitled to relief under Johnson where a sentencing court did

not rely on the residual clause, but instead imposed sentence based on the elements or

enumerated offenses clauses. See United States v. Snyder, __ F.3d __, No. 16-8117,

2017 WL 4171886, at *6 (10th Cir. Sept. 21, 2017).

      Mr. Smith argues that the record is unclear whether the sentencing court relied

on the residual clause in considering his robbery and burglary convictions, and that

his sentence is impermissible because under current law, the robberies do not satisfy

the elements clause and the burglary does not satisfy the enumerated offenses clause.

But we need not consider whether the convictions would qualify as ACCA predicates

if Mr. Smith were sentenced under current law. The initial question is whether a

reasonable jurist could debate the district court’s finding that the sentencing court did

not rely on the residual clause in sentencing Mr. Smith under the ACCA. And that

question is dispositive because no reasonable jurist could debate this issue.

                                            4
      Nothing in the record indicates that the sentencing court may have relied on

the residual clause. To the contrary, the court’s discussion directly linked the

robbery convictions and the burglary conviction to the quoted portions of the

statute—the elements and enumerated offenses clauses. See Snyder, 2017 WL

4171886, at 5-6. The sentencing court’s omission of the residual clause (like the

non-relevant enumerated offenses) indicates that clause played no part in the

decision; otherwise, the court would also have quoted it. Further, the primary issue

at sentencing was whether the burglary conviction satisfied the enumerated offenses

clause. See R., Vol. 1 at 19-21, 23-26 (parties’ arguments); id. at 30-32 (sentencing

court’s order); see also Smith, 33 F. App’x at 466 (emphasizing the

enumerated-offenses-clause listing of burglary).

      With the sentencing court focusing on the elements and enumerated offenses

clauses, “there would have been no need for reliance on the residual clause,” Snyder,

2017 WL 4171886, at *6. Under these circumstances, no reasonable jurist could

debate the district court’s finding that the residual clause played no role in supporting

Mr. Smith’s ACCA-enhanced sentence. Therefore, no reasonable jurist could debate

whether he is entitled to relief under Johnson. See Snyder, 2017 WL 4171886, at *6.

A COA is denied and the matter is dismissed.


                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge


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