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

                             FOR THE TENTH CIRCUIT                            May 30, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-6216
                                                   (D.C. No. 5:16-CR-00005-M-1)
ALLAN DOUGLAS SCHUBERT,                                    (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, EBEL, and MATHESON, Circuit Judges.
                   _________________________________

      Allan Schubert pled guilty to possessing a firearm in violation of 18 U.S.C.

§ 922(g)(1). The district court concluded Mr. Schubert was subject to the Armed

Career Criminal Act (“ACCA”) and imposed the statutory minimum sentence of 15

years (180 months). See 18 U.S.C. § 924(e).

      Mr. Schubert now appeals his sentence. He argues he is not subject to the

ACCA because he does not have three qualifying prior convictions necessary to

trigger the mandatory minimum. Mr. Schubert also argues the ACCA’s complexity

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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 consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
violates his constitutional right to due process. Exercising jurisdiction under 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.

                                I.   BACKGROUND

      In January 2016, a grand jury in the Western District of Oklahoma indicted

Mr. Schubert on one charge of possessing a firearm as a felon. On March 2, 2016,

Mr. Schubert pled guilty.

      The court ordered a pre-sentence investigation report (“PSR”). The PSR

investigated whether Mr. Schubert was subject to the ACCA, which imposes a

mandatory minimum sentence of 15 years if a person has three qualifying prior

offenses. See 18 U.S.C. § 924(e)(1). The PSR concluded Mr. Schubert had four

qualifying offenses:

   1. Armed Robbery,

   2. Assault with a Dangerous Weapon,

   3. Assault and Battery with a Dangerous Weapon, and

   4. Feloniously Pointing a Firearm.

Mr. Schubert objected to the PSR’s determination he was subject to the ACCA.

      The district court held a sentencing hearing, concluded all four convictions

qualified, and overruled Mr. Schubert’s objection. The district court also rejected

Mr. Schubert’s separate argument that the complexity of the ACCA denied fair

warning and violated due process. It imposed the mandatory minimum ACCA

sentence of 15 years.

      Mr. Schubert now appeals.

                                         -2-
                                   II. DISCUSSION

      Mr. Schubert raises the same two arguments he presented to the district court.

We begin with his argument that he does not have three ACCA-qualifying prior

convictions and conclude that, because three of his four convictions qualify, Mr.

Schubert is subject to the ACCA. We next address his argument that the ACCA’s

complexity violates due process by denying fair warning. We also reject this

argument and accordingly affirm his sentence.

                           A. The ACCA Predicate Felonies

      After discussing the applicable law and our standard of review, we address Mr.

Schubert’s convictions and conclude he is subject to the ACCA because three of his

four prior convictions qualify as violent felonies.

1. Legal Background

      a. The ACCA enhancement

      The ACCA imposes a 15-year mandatory minimum sentence if a defendant is

convicted of being a felon in possession of a firearm following three prior

convictions that qualify as either (1) violent felonies or (2) serious drug offenses.

See 18 U.S.C. § 924(e)(1); see also United States v. Titties, 852 F.3d 1257, 1264-65

(10th Cir. 2017). The Government bears the burden of proving a past offense

qualifies as an ACCA predicate. Titties, 852 F.3d at 1264-65. Here, the Government

does not argue Mr. Schubert has any convictions that qualify as serious drug

offenses. Instead, it contends all of Mr. Schubert’s potential ACCA predicate

offenses fall under the “violent felony” category.

                                          -3-
      The ACCA defines “violent felony” as follows:

      (B) [T]he 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 threatened
             use of physical force against the person of another[.]

18 U.S.C. § 924(e)(2)(B)(i).1 In this definition, “‘physical force’ means violent

force—that is, force capable of causing physical pain or injury to another person.”

Curtis Johnson v. United States, 559 U.S. 133, 140 (2010).2

      b. The categorical and modified categorical approaches

      To determine whether a prior conviction qualifies as an ACCA predicate,

courts apply the categorical approach by asking “whether the crime’s elements satisfy

the ACCA’s definition of violent felony.” Titties, 852 F.3d at 1265. “[I]f some

conduct would garner a conviction but would not satisfy the [ACCA] definition[,]

then any conviction under that law cannot count as an ACCA predicate.” Id. at 1266

(quotations omitted). “This is so even when the defendant’s conduct leading to the

underlying conviction would satisfy the ACCA’s violent felony definition.” Id.

      Courts, however, must sometimes apply the modified categorical approach

“when a prior conviction is based on a so-called divisible statute, one that sets out


      1
         The ACCA’s definition of violent felony also includes an “enumerated-
offenses clause” and a “residual clause.” See 18 U.S.C. § 924(e)(2)(B)(ii). The
Supreme Court invalidated the residual clause as unconstitutionally vague in Johnson
v. United States, 135 S.Ct. 2551, 2563 (2015). Only the force clause, quoted above,
is at issue here.
      2
       We identify this case as Curtis Johnson to distinguish it from the 2015
Johnson case cited in footnote three and discussed more below.
                                          -4-
one or more elements of the offense in the alternative.” Id. (quotations omitted).

When courts apply the modified categorical approach, they “peer around the statute

of conviction” and look at record documents from the defendant’s actual case for the

limited and exclusive purpose of identifying which of a statute’s alternative elements

supplied the basis for the defendant’s conviction. Id. With the elements—not the

facts—identified, courts then apply the categorical approach. Id. at 1266-67.

      Because “[a] statute is divisible only if it sets out one or more elements of the

offense in the alternative,” courts must determine whether a disjunctively phrased

statute lists alternative elements or alternative means. Id. at 1267 (quotations

omitted). “Elements are the constituent parts of a crime’s legal definition—the

things the prosecution must prove to sustain a conviction.” Id. (quotations omitted).

“By contrast, means are various factual ways of committing some component of the

offense.” Id. (quotations omitted).

      In Mathis v. United States, 136 S. Ct. 2243 (2016), the Supreme Court held

that, when applying the ACCA, federal courts examining state statutes framed in the

alternative should first decide the means/elements question by looking to (1) the text

of the state law, (2) state court decisions, and (3) the record of the prior conviction

itself. See id. at 2256-57.3




      3
       Any examination of the record at this stage is not an application of the
modified categorical approach. Rather, this “peek” at the record only helps answer
the means/elements question, which in turn answers whether the modified categorical
approach should be used at all. See Titties, 852 F.3d at 1268 n.10.
                                           -5-
2. Standard of Review

      “Whether a prior conviction satisfies the ACCA’s violent felony definition is a

legal question we review de novo.” Titties, 852 F.3d at 1263.

3. Analysis

      We conclude Mr. Schubert has three qualifying convictions and is thus subject

to the ACCA.

      The district court ruled Mr. Schubert had four qualifying convictions. Mr.

Schubert does not dispute that his armed robbery conviction qualifies as a violent

felony. That leaves three offenses: (1) assault with a dangerous weapon, (2) assault

and battery with a dangerous weapon, and (3) feloniously pointing a firearm. If two

of these three offenses qualify, Mr. Schubert is subject to the ACCA.

      These three convictions arise under just two Oklahoma statutes, Okla. Stat. tit.

21 § 645 and § 1289.16. We conclude the first two offenses, both arising under

§ 645, qualify as violent felonies. When these two convictions are counted along

with the armed robbery conviction, which Mr. Schubert concedes qualifies as an

ACCA predicate, he has the necessary three convictions. We agree with him that his

firearm pointing conviction under § 1289.16 does not qualify. We discuss Mr.

Schubert’s convictions under § 645 and § 1289.16 in turn.

      a. Okla. Stat. tit. 21 § 645

      The statute provides:

      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

                                         -6-
      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 . . . .

Okla. Stat. tit. 21 § 645 (2001).4 Mr. Schubert was convicted of two different crimes

under this statute: (1) assault with a dangerous weapon and (2) assault and battery

with a dangerous weapon. Under our precedent, both qualify as ACCA violent

felonies.

      We addressed § 645 in an unpublished decision, United States v. Mitchell, 653

F. App’x 639 (10th Cir. 2016),5 and we applied and “reaffirm[ed]” Mitchell in a

published opinion, United States v. Taylor, 843 F.3d 1215, 1222 (10th Cir. 2016).6

      In Mitchell and Taylor, we held § 645 is divisible and therefore subject to the

modified categorical approach. Taylor, 843 F.3d at 1222-23 (citing Mitchell, 653 F.

App’x at 643). The statute “criminalizes [1] an assault, battery, or assault and battery

with a sharp or dangerous weapon, and in the alternative it criminalizes [2] shooting




      4
        “Our analysis is limited to the version of the statute in effect at the time of
the Defendants’ conduct.” United States v. Sturm, 672 F.3d 891, 897 n.5 (10th Cir.
2012) (en banc).
      5
        We cite unpublished cases in this order only for their persuasive value. See
Fed. R. App. P. 32.1, 10th Cir. R. 32.1.
      6
        Mitchell and Taylor considered whether offenses under § 645 qualify as
“crimes of violence” under Section 4B1.2(a)(1) of the Sentencing Guidelines. That
provision and the ACCA’s definition of “violent felony” are virtually identical, and
we frequently look to decisions considering one when applying the other. See, e.g.,
United States v. Wray, 776 F.3d 1182, 1184-85 (10th Cir. 2015); United States v.
McConnell, 605 F.3d 822, 828 (10th Cir. 2010).
                                          -7-
at another with a gun or similar means.” Id. at 1222 (alterations and quotations

omitted).

         Mitchell and Taylor both addressed offenses under the first alternative. See

Mitchell, 653 F. App’x at 643; Taylor, 843 F.3d at 1223. Because Mr. Schubert’s

two offenses—assault with a dangerous weapon and assault and battery with a

dangerous weapon—both come under the first alternative, we confine our discussion

to that portion of § 645.

         The first alternative is itself divisible. We have said it “further contains the

sub-alternatives of ‘assault, battery, or assault and battery,’ and ‘sharp or dangerous

weapon.’” Taylor, 843 F.3d at 1222 (quotations omitted).

         These alternatives make the definitions of assault and battery important.

Battery, under Oklahoma law, can be accomplished with “only the slightest force or

touching.” See Steele v. State, 778 P.2d 929, 931 (Okla. Crim. App. 1989). Because

such slight force suffices for a conviction, Oklahoma battery does not qualify as a

violent felony under the ACCA definition applicable here. See United States v.

Smith, 652 F.3d 1244, 1247 (10th Cir. 2011).

         Oklahoma defines assault as “any willful and unlawful attempt or offer with

force or violence to do a corporal hurt to another.” Okla. Stat. tit. 21 § 641. Under

Oklahoma law, an assault can occur either through (1) an attempted battery or (2) a

“threatened imminent battery (i.e., an ‘offer’) with an overt act beyond mere words,”

which we have called “apprehension-causing assault.” Mitchell, 653 F. App’x at 644

& n.4.

                                             -8-
      We have held that either form of assault under § 645 qualifies as a violent

felony because the statute, besides requiring proof of assault, also contains the

dangerous weapon element. Id. at 645; Taylor, 843 F.3d at 1224. Thus, assaults

under § 645 categorically require proof of the attempted use or threatened use of

violent force and therefore satisfy the ACCA’s definition of violent felony. See

Taylor, 843 F.3d at 1224 (quoting Mitchell, 653 F. App’x at 645).

      Together, Mitchell and Taylor establish that both of Mr. Schubert’s § 645

offenses qualify as violent felonies under the ACCA. We concluded assault with a

dangerous weapon, Mr. Schubert’s first conviction, qualified in Mitchell. See 653 F.

App’x at 643-45. And Taylor held that assault and battery with a dangerous weapon,

his second conviction, qualified as well. See 843 F.3d at 1223-24.

      Mr. Schubert raises two counterarguments that his § 645 convictions do not

qualify as ACCA violent felonies, but neither is persuasive.

      First, he contends our unpublished Mitchell opinion did not cite or address the

Supreme Court’s Mathis decision. He contends Mitchell’s conclusion that § 645 is

divisible is untenable in light of Mathis’s requirement that courts observe the

distinction between means and elements. We reject this argument because Taylor

later addressed the role of Mathis and held firm to Mitchell’s result. See Taylor, 843

F.3d at 1222-24.

      Second, he argues § 645 is not categorically a violent felony because one

alternative—battery with a dangerous weapon—can be nonviolent under the ACCA.

We reject this argument as well because our precedent establishes that § 645 is

                                          -9-
divisible between “assault, battery, or assault and battery,” and here Mr. Schubert

was not convicted of the battery alternative. Taylor, 843 F.3d at 1222-23 (quotations

omitted).

      b. Okla. Stat. tit. 21 § 1289.16

      Mr. Schubert argues his conviction for feloniously pointing a firearm under

§ 1289.16 does not qualify as a violent felony.7 We agree and recently held as much

in another case. See Titties, 852 F.3d at 1272.

      c. Mr. Schubert has three ACCA predicate offenses

      Mr. Schubert qualifies for an ACCA-enhanced sentence because his two § 645

convictions and his armed robbery conviction supply the requisite three qualifying

convictions. Because Mr. Schubert is subject to the ACCA, we reach his

constitutional argument that application of the ACCA violates due process.

                                    B. Due Process

      We discuss the law applicable to Mr. Schubert’s challenge and conclude that

applying the ACCA in this case does not violate his constitutional due process rights.



      7
          The statute provides:

      It shall be unlawful for any person to willfully or without lawful cause
      point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or
      not, at any person or persons for the purpose of threatening or with the
      intention of discharging the firearm or with any malice or for any
      purpose of injuring, either through physical injury or mental or
      emotional intimidation or for purposes of whimsy, humor or prank, or in
      anger or otherwise . . . .

Okla. Stat. tit. 21 § 1289.16 (2006).
                                         - 10 -
1. Legal Background

      The Fifth Amendment provides no person shall “be deprived of life, liberty, or

property, without due process of law.” U.S. Const. amend. V. The government

violates due process when it takes away someone’s liberty “under a criminal law so

vague that it fails to give ordinary people fair notice of the conduct it punishes, or so

standardless that it invites arbitrary enforcement.” Johnson v. United States, 135 S.

Ct. 2551, 2556 (2015). Due process protections apply not only to substantive

criminal laws making certain conduct illegal “but also to statutes fixing sentences.”

Id. at 2557; see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996)

(“Elementary notions of fairness enshrined in our constitutional jurisprudence dictate

that a person receive fair notice not only of the conduct that will subject him to

punishment, but also of the severity of the penalty that a State may impose.”).

      Vague statutory language can deprive a person of “the right to fair warning,”

Rogers v. Tennessee, 532 U.S. 451, 457 (2001), but there is fair warning if a “person

of ordinary intelligence” has “a reasonable opportunity to know what is prohibited,”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). See also United States v.

Michel, 446 F.3d 1122, 1135 (10th Cir. 2006).

      Johnson is especially relevant here. 135 S. Ct. 2551. There, the Supreme

Court examined a part of the ACCA’s “violent felony” definition—the so-called




                                          - 11 -
“residual clause,”8 which is not at issue here—and held it was void for vagueness.

Id. at 2556-57. Johnson identified two features that made the residual clause

unconstitutionally vague. First, it left “grave uncertainty about how to estimate the

risk posed by a crime.” Id. at 2557. Second, it left “uncertainty about how much risk

it takes for a crime to qualify as a violent felony.” Id. at 2558. The Court in Johnson

was careful to note that its decision “d[id] not call into question . . . the remainder of

the [ACCA’s] definition of a violent felony.” Id. at 2563.

2. Standard of Review

       We review de novo the question whether a defendant’s due process rights were

violated. United States v. Robinson, 583 F.3d 1265, 1269 (10th Cir. 2009).

3. Analysis

       Mr. Schubert argues that even though the residual clause has been excised

from the ACCA, “the same unpredictable, inconsistent, and unfair application”

continues. Aplt. Br. at 13. His critique is not aimed at the part of the “violent

felony” definition we apply here. Instead, Mr. Schubert ventures beyond the text and

takes aim at the “convoluted legal inquiry,” referring to the categorical and modified

categorical approaches, courts use to decide whether a prior offense fits this

definition. Aplt. Reply Br. at 1.

       The complexity of this analysis, he argues, deprives him of fair warning and

thus causes the ACCA to be unconstitutionally vague. He contends “courts continue

       8
          The residual clause provides that a prior offense counts as a “violent felony”
if it “otherwise involves conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
                                          - 12 -
to struggle” in sorting which crimes qualify under the ACCA from those that do not.

Aplt. Br. at 10. Surveying the Supreme Court’s categorical and modified categorical

cases dating back to Taylor v. United States, 495 U.S. 575 (1990), Mr. Schubert

argues that the law for classifying ACCA predicates is marked by “confusion” in

both “methodology and practical application.” Aplt. Br. at 12. Because the courts of

appeals sometimes divide and because the Supreme Court’s decisions in this area are

not always unanimous—he points to the 5-3 split in Mathis, 136 S. Ct. 2243, as the

most recent example—he argues “an ordinary person cannot be expected to have fair

notice of the ACCA’s meaning.” Aplt. Br. at 13.

      The Government’s response does not directly answer Mr. Schubert’s

challenge. Instead, it notes that Johnson said the non-residual-clause portions of the

ACCA remain valid. See Aplee. Br. at 6 (citing Johnson, 135 S. Ct. at 2563). The

Government argues the Supreme Court’s analysis of the residual clause found it to be

vague by contrasting it with the other parts of the ACCA. See Aplee. Br. at 6-9

(citing Johnson, 135 S. Ct. at 2557).

      As an initial matter, we agree with the Government that Johnson did not, apart

from the residual clause, disturb the ACCA’s definition of violent felony. That is,

the violent felony definition we apply here, 18 U.S.C. § 924(e)(2)(B)(i), does not

deny fair warning to people of ordinary intelligence.

      As for Mr. Schubert’s argument that the categorical and modified categorical

approaches make the ACCA unconstitutionally vague, he provides no explanation or

support for his position that disagreement among circuit courts or members of the

                                         - 13 -
Supreme Court as to particular applications of the ACCA is sufficient to render the

entire scheme unconstitutionally vague. We decline to upend the categorical and

modified categorical approaches, which the Supreme Court has applied for more than

a quarter century, especially when they were recently reconfirmed in Mathis. See

136 S. Ct. at 2257 (“Some have raised concerns about this line of decisions, and

suggested to Congress that it reconsider how ACCA is written. But whether for good

or for ill, the elements-based approach remains the law.” (citations omitted)).

      To the extent Mr. Schubert argues there can be no fair warning where judicial

decisions conflict over whether a given statute qualifies as an ACCA predicate, he

has failed to show that courts have come to contrary conclusions with respect to the

statutes under which he was convicted. See United States v. Graham, 305 F.3d 1094,

1105 (10th Cir. 2002) (explaining vagueness challenges not implicating First

Amendment interests must be brought as applied); accord Holder v. Humanitarian

Law Project, 561 U.S. 1, 18-19 (2010).

      We therefore reject Mr. Schubert’s argument that application of the ACCA in

his case violates due process.

                                 III. CONCLUSION

      For the foregoing reasons, we affirm the judgment of the district court.

                                            ENTERED FOR THE COURT,



                                            Scott M. Matheson, Jr.
                                            Circuit Judge


                                         - 14 -
