Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Hammons

United States Court of Appeals, Tenth Circuit

July 7, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
BRITT JARRIEL HAMMONS, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Oklahoma (D.C. Nos. 5:15-CV-00912-F and 5:04-CR-00172-F-1)

          Kyle Wackenheim, Assistant Federal Public Defender (Julia C. Summers, with him on the briefs), Office of the Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

          Timothy W. Ogilvie, Assistant United States Attorney (Mark A. Yancy, Acting United States Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

          Before BRISCOE, EBEL, and MURPHY, Circuit Judges.

          EBEL, Circuit Judge.

          This case presents the question whether Oklahoma's drive-by shooting statute, Okla. Stat. tit. 21, § 652(B), qualifies as a violent felony under the federal Armed Career Criminal Act (ACCA). We hold that it does. Accordingly, we AFFIRM.

         I. BACKGROUND

         In 2004, Britt Hammons pleaded guilty in federal court to possessing a firearm as a felon. His criminal history included three prior convictions under Oklahoma's drive-by shooting statute, Okla. Stat. tit. 21, § 652(B) (1992). It is undisputed that, at the time of sentencing, Hammons qualified for the ACCA's fifteen-year mandatory minimum sentence because his prior convictions would have met the definition of "violent felony" under the ACCA's residual clause.[1] See 18 U.S.C. § 924(e)(2)(B)(ii) (residual clause). The district court thus imposed the ACCA enhancement, but the Supreme Court struck down the residual clause in Johnson v. United States, 135 S.Ct. 2551 (2015). Now that the residual clause cannot be relied upon for the enhancement, Hammons seeks to vacate his sentence under 28 U.S.C. § 2255.[2]

         On collateral review, the district court concluded that Hammons nevertheless qualified for the enhancement because his state-law convictions were violent felonies under the elements clause of the ACCA. Under that clause, a violent felony includes any felony statute that "has as an element the use . . . of physical force against the person of another[.]" 18 U.S.C. § 924(e)(2)(B)(i). Finding that Oklahoma's drive-by shooting statute contained such an element, the district court upheld the sentence.

         II. DISCUSSION

         The Oklahoma drive-by shooting statute in effect at the time of Hammons' convictions provided:

Every person who uses any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow or other weapon in conscious disregard for the safety of any other person or persons shall upon conviction be punished . . . .

Okla. Stat. tit. 21, § 652(B) (1992) (emphasis added). The question is whether § 652(B) satisfies the requirement in 18 U.S.C. § 924(e)(2)(B)(i) that the crime of conviction "has as an element the use . . . of physical force against the person of another[.]"

         This case calls for the application of the categorical approach, which examines the elements of the predicate state conviction in the abstract, rather than the precise conduct giving rise to that conviction. E.g., Descamps v. United States, 133 S.Ct. 2276, 2283 (2013). In doing so, we look to the least of the acts criminalized by the Oklahoma statute. Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013). In other words, if ยง 652(B) realistically reaches any conduct that does not involve the use of physical force ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.