United States v. Smith

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 This order is not binding precedent, except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, § 801and 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
5