United States v. Harbert

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 14, 2019
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6246
(D.C. No. 5:17-CR-00101-R-1)
HAROLD LEE HARBERT, (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
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Harold Lee Harbert pleaded guilty to one count of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Harbert’s plea agreement
contained a waiver of appellate rights, with an exception to appeal from a judicial
determination that he is subject to the terms of the Armed Career Criminal Act,
18 U.S.C. § 924(e) (ACCA). Relying on that exception, Mr. Harbert appeals from
the district court’s determination that his Oklahoma first-degree robbery conviction
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
qualifies as a “violent felony” under ACCA. Exercising jurisdiction under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291, we affirm.
BACKGROUND
Following the entry of his guilty plea, the probation department prepared a
presentence report in which it recommended that Mr. Harbert be sentenced as an armed
career criminal under ACCA because he had three previous convictions that required an
enhanced sentence—two Oklahoma convictions for possession with intent to distribute a
controlled substance and one conviction for Oklahoma first-degree robbery in 1995. See
§ 924(e)(1) (“In the case of a person who violates section 922(g) . . . and has three
previous convictions . . . for a violent felony or a serious drug offense, . . . such person
shall be . . . imprisoned not less than fifteen years”).1 The district court overruled
Mr. Harbert’s objection that the 1995 Oklahoma robbery conviction was not a “violent
felony,” and sentenced him to 188 months’ imprisonment, followed by a five-year term
of supervised release. This appeal followed.
STANDARD OF REVIEW
“We review de novo whether a defendant’s prior conviction qualifies as a violent
felony under the ACCA.” United States v. Ridens, 792 F.3d 1270, 1272 (10th Cir. 2015)
(internal quotation marks omitted).
1
There is no dispute that Mr. Harbert’s two Oklahoma convictions for
possession with intent to distribute a controlled substance are “serious drug
offense[s]” that are properly considered as predicate convictions in determining
whether Mr. Harbert should be sentenced under ACCA. See 18 U.S.C. § 924(e)(1).
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ANALYSIS
The issue on appeal is whether Mr. Harbert’s Oklahoma first-degree
robbery conviction is a “violent felony” under ACCA’s elements clause. See
§ 924(e)(2)(B)(i) (A violent felony is “any crime punishable by imprisonment for a
term exceeding one year” that “has as an element the use, attempted use, or
threatened use of physical force against the person of another.”). We apply the
categorical approach, “[t]o determine if a prior conviction qualifies as a violent
felony under the ACCA.” United States v. Harris, 844 F.3d 1260, 1263 (10th Cir.
2017), cert. denied, 138 S,Ct. 1438 (2018).
Under the categorical approach, “a state offense is a categorical match with a
generic federal offense only if a conviction of the state offense necessarily involved
facts equating to the generic federal offense.” Moncrieffe v. Holder, 569 U.S. 184,
190 (2013) (brackets, ellipses, and internal quotation marks omitted). In other words,
to qualify as a “violent felony” under ACCA, Oklahoma’s 1995 first-degree robbery
statute must have as an element, the “use, attempted use, or threatened use of
physical force against the person of another.” § 924(e)(2)(B)(i). In turn, physical
force under ACCA “means violent force—that is, force capable of causing physical
pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140
(2010).
According to Mr. Harbert, Oklahoma’s 1995 first-degree robbery statute did
not have as an element the “violent force” required under Johnson to qualify as a
“violent felony.” Specifically, Mr. Harbert argues that “[t]he only force that was
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necessary to commit Oklahoma first-degree robbery in 1995 was force sufficient to
overcome the victim’s resistance to the taking. So long as the force overcame the
victim’s resistance, the degree of force was ‘immaterial.’” Aplt. Opening Br. at 1
(emphasis added).
We agree with the government that Mr. Harbert’s argument is foreclosed by
the Supreme Court’s recent decision in Stokeling v. United States, --- U.S. ---,
139 S. Ct. 544 (2019). “‘[P]hysical force,’ or ‘force capable of causing physical pain
or injury’ includes the amount of force necessary to overcome a victim’s resistance.”
Id. at 555 (citation omitted). Therefore, “[c]onstruing the language of the elements
clause in light of the history of ACCA and our opinion in Johnson . . . ,we conclude
that the elements clause encompasses robbery offenses that require the criminal to
overcome the victim’s resistance.” Id. at 550.
CONCLUSION
Mr. Harbert’s sentence is affirmed. We grant Mr. Harbert’s motion to submit
the case on the briefs.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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