United States v. Kutz , 439 F. App'x 751 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
October 20, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-6136
v. (W.D. Oklahoma)
ERIC STANTON KUTZ, (D.C. No. 5:10-CR-00217-F-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, ANDERSON, and GORSUCH, 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Eric Stanton Kutz pled guilty to one count of
being a felon in possession of a firearm and one count of possession with intent to
distribute methamphetamine. He was sentenced on the felon-in-possession count
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
as an armed career criminal, pursuant to the Armed Career Criminal Act, 18
U.S.C. § 924(e) (“ACCA”), and received the mandatory ACCA enhanced sentence
of 180 months on that count. Mr. Kutz appeals that sentence. We affirm.
BACKGROUND
On March 29, 2010, Mr. Kutz engaged in a high speed car chase in
Oklahoma City, Oklahoma, following an attempted traffic stop by police. During
the chase, police officers pursuing Mr. Kutz observed a firearm and a bag
containing a white substance (which turned out to be methamphetamine) being
thrown from the passenger side window of the vehicle Mr. Kutz was driving.
When he crashed his car into a tree, Mr. Kutz, a convicted felon, was arrested and
charged with being a felon in possession of a firearm and possession with intent
to distribute the methamphetamine.
Prior to the scheduled trial, the government filed a notice of its intention to
seek an enhanced penalty for the felon-in-possession count pursuant to the
ACCA, because Mr. Kutz had previously committed three violent felonies.
Mr. Kutz pled guilty to both counts. 1 In preparation for sentencing, the United
States Probation Office prepared a presentence report (“PSR”). The PSR
indicated the government’s intention to seek the enhanced penalty under the
1
While the plea agreement contained a waiver of the right to appeal, the
government told the district court at the sentencing hearing that it would suspend
the waiver to allow Mr. Kutz to appeal the court’s ruling on whether the ACCA
penalty applied.
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ACCA. The government identified three predicate convictions which it argued
were crimes of violence and, accordingly, qualified Mr. Kutz for the enhanced
ACCA penalty. These three convictions were: (1) assault and battery with a
dangerous weapon; (2) pointing a firearm at another; and (3) assault and battery
upon a law enforcement officer. Mr. Kutz objected.
Mr. Kutz concedes that the first two convictions qualify as crimes of
violence for ACCA purposes. Both before the district court and on appeal,
however, Mr. Kutz argues that the third conviction (assault and battery upon a
law enforcement officer) does not fall within the statutory definition of a crime of
violence under 18 U.S.C. § 924(e)(2)(B)(ii). Relying upon this court’s decision
in United States v. Williams, 559 F.3d 1143 (10th Cir. 2009), the district court
held that battery on a police officer qualifies categorically as a predicate crime of
violence for ACCA purposes. It accordingly sentenced Mr. Kutz as an armed
career criminal. This appeal followed.
DISCUSSION
A “violent felony” under the ACCA is any crime punishable by a term of
imprisonment exceeding one year that also
(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 the use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another . . . .
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18 U.S.C. § 924(e)(2)(B). “Whether a defendant’s prior conviction qualifies as a
violent felony under the ACCA is a question of law that we review de novo.”
United States v. Silva, 608 F.3d 663, 665 (10th Cir. 2010).
The first of the two subsections in § 924(e)(2)(B) is called the “force”
clause; the first part of the second subsection is called the “enumerated crimes”
clause; and the second part of the second subsection is called the “residual”
clause. The parties agree that the question in this case is whether Mr. Kutz’s
conviction for assault of a police officer falls within the residual clause as a crime
that “otherwise involves conduct that presents a serious potential risk of physical
injury to another.”
In “determining whether a prior conviction falls under the ACCA, we apply
a ‘categorical approach,’ generally looking only to the fact of conviction and the
statutory definition of the prior offense, and do not generally consider the
particular facts disclosed by the record of conviction.” United States v. Smith,
652 F.3d 1244, 1246 (10th Cir. 2011) (further quotation omitted). If, on the other
hand, “a criminal statute proscribes conduct broader than that which would satisfy
the ACCA’s definition of a violent felony,” we apply the “modified categorical
approach.” Id. In that case, we may “also look at the charging documents and
documents of conviction to determine whether the defendant in a particular case
was convicted of an offense that falls within the ACCA.” Id.-4-
The prior conviction at issue in this case was a conviction for the assault
and battery of a law enforcement officer, in violation of Okla. Stat. tit. 21,
§ 649(B). In particular, Mr. Kutz avers that the assault involved his reaching out
from between jail cell bars and “grabbing a female corrections officer by the hip
in the buttock region.” Appellant’s Br. at 5. Mr. Kutz concedes that in
Williams, we held that a conviction pursuant to § 649(B) qualifies categorically
as a “crime of violence” under the career offender provisions of the United States
Sentencing Commission, Guidelines Manual (“USSG”). As we stated, “battery on
a police officer, as defined by Oklahoma statutes, ordinarily involves purposeful,
aggressive, and violent conduct, and creates a serious potential risk of physical
injury. Williams’ 1995 conviction, therefore, categorically qualifies as a crime of
violence under [USSG] § 4B1.2(a)(2)’s residual clause.” Williams, 559 F.3d at
1149. Mr. Kutz argues that we are not bound by Williams, however, because it is
simply “wrong,” Appellant’s Br. at 14, and it could be revisited in en banc
review. Mr. Kutz also argues that Williams is distinguishable because it involved
the career offender provisions of the Guidelines, whereas this case involves the
statutory career offender provisions.
None of these arguments is persuasive. It is well established that we “are
bound by the holdings of previous panels unless and until they are overruled by a
rehearing of this Court en banc or the Supreme Court.” United States v.
Campbell, 603 F.3d 1218, 1220 n.1 (10th Cir.), cert. denied, 131 S. Ct. 351-5-
(2010). And, it is of no moment that Williams involved the Guidelines and this
case involves the statutory provisions, inasmuch as we construe the career
offender provisions in them identically. See United States v. Charles, 576 F.3d
1060, 1068 n.2 (10th Cir. 2009) (noting that “the Supreme Court’s analysis under
the ACCA ‘applies equally to the sentencing guidelines’” (quoting United States
v. Tiger, 538 F.3d 1297, 1298 (10th Cir. 2008)). 2
We are therefore bound by Williams to conclude that Mr. Kutz’s prior
conviction for assault on a law enforcement officer qualifies as a violent felony
for ACCA purposes.
CONCLUSION
Accordingly, for the foregoing reasons, we AFFIRM the district court’s
sentencing determination.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
2
Our court has also recently held that a violation of Okla. Stat. tit. 21,
§ 650.2(B) (involving assault and battery by a person in the custody of Juvenile
Affairs on an employee of that office), a statute nearly identical to Okla. Stat. tit.
21. § 649(B), constitutes a violent felony under the ACCA’s residual clause.
United States v. Smith, 652 F.3d 1244 (2011).
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