from the United States District Court for the Western
District of Oklahoma (D.C. Nos. 5:15-CV-00912-F and
Wackenheim, Assistant Federal Public Defender (Julia C.
Summers, with him on the briefs), Office of the Federal
Public Defender, Oklahoma City, Oklahoma, for
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.
BRISCOE, EBEL, and MURPHY, Circuit Judges.
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
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. 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. §
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.
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[.]"
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
§ 652(B) realistically reaches any conduct that does not
involve the use of physical force ...