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

                             FOR THE TENTH CIRCUIT                          April 1, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-6042
                                                  (D.C. No. 5:14-CR-00232-M-1)
ROGER HAROLD PETERMAN,                                    (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, GORSUCH, and MORITZ, Circuit Judges.
                  _________________________________

      Roger Peterman pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g), and the district court imposed an enhanced sentence

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based on its

determination that Peterman had three qualifying prior convictions. Peterman

challenges the classification of two of those convictions as ACCA qualifying

felonies. We reject Peterman’s challenge to one conviction, deem his challenge to the

second conviction waived, and affirm his sentence.

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. See Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
      First, Peterman contends the district court erroneously determined, over his

objection, that his conviction for possession of marijuana with intent to distribute is a

serious drug offense. But the judgment expressly reflects Peterman’s state conviction

for possession of marijuana with intent to distribute and that the district court

sentenced him to a 10-year prison term.1 That is all the ACCA requires. 18 U.S.C.

§ 924(e)(2)(A)(ii). And we reject Peterman’s argument that, due to a clerical error,

the state judgment reflects a conviction for possession with intent to distribute

instead of his actual conviction of simple possession. As the district court held, this is

an improper attack on the state judgment. See United States v. Smith, 652 F.3d 1244,

1246 n.3 (10th Cir. 2011) (noting that defendant in a federal sentencing proceeding

generally may not collaterally attack validity of prior state conviction); Head v. State,

146 P.3d 1141, 1149 (Okla. Crim. App. 2006) (explaining under Oklahoma law a

clerical error in judgment must be corrected through order nunc pro tunc issued by

state sentencing court). Thus, we conclude the district court didn’t err in classifying

the marijuana conviction as a serious drug offense.

      Next, Peterman contends the district court erroneously classified his

conviction of assault and battery of a police officer as a violent felony in light of

Johnson v. United States, 135 S. Ct. 2551 (2015). Because Johnson was decided

while this appeal was pending, Peterman didn’t raise this argument below. We

extended the time for filing appellate briefs to allow both parties to address Johnson.


      1
      Notably, the related charging document and plea documents reflect the same
crime—possession of marijuana with intent to distribute.
                                            2
      In Johnson, the Supreme Court held that imposing an enhanced sentence under

the ACCA’s “residual clause” definition of “violent felony” violates due process. 135

S. Ct. at 2563. Both parties assume the district court relied on the ACCA’s residual

clause to classify Peterman’s assault and battery conviction as a violent felony. But

even if we assume the same, Peterman didn’t argue in his opening brief that this

alleged Johnson error warrants reversal under our plain-error standard. And, after the

government filed a response brief pointing out this omission, Peterman didn’t file a

reply brief. Thus, Peterman waived appellate review of the alleged Johnson error.2

See United States v. Lamirand, 669 F.3d 1091, 1100 n.7 (10th Cir. 2012) (stating “the

failure to argue for plain error and its application on appeal . . . surely marks the end

of the road for an argument for reversal not first presented to the district court”

(quoting Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011))).3

      For these reasons, we affirm Peterman’s sentence.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge


      2
         Because Peterman waived review, we dismiss as moot the government’s
second motion to supplement the record with documents related to this issue.
       3
         This court recently stated that “when an error is obvious enough and satisfies
Rule 52(b), an appellate court, in its discretion, may recognize the error
notwithstanding briefing deficiencies.” United States v. Courtney, No. 15-2015, 2016
WL 930579, at *2 (10th Cir. Mar. 11, 2016). But we decline to exercise that
discretion here because, unlike the defendant in Courtney, Peterman didn’t address
plain error in a reply brief; rather, Peterman didn’t address plain error at all.

                                            3
