Petition for Writ of Certiorari — Jason Mitchell Abbo, Petitioner v. United States

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APPENDIX

"A"

Appellate Case: 18-6081

UNITED STATES COURT OF APPEALS

Page: 1 •

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

April 8, 2019

Document: 010110150/6/

Date Filed: 04/08/2019

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES OF AMERICA

Plaintiff - Appellee,

JASON MITCHELL ABBO,

No. 18-6081

(D.C. Nos. 5:16-CV-00722-M and

5:11-CR-00385-M-1)

(W.D. Okla.)

Defendant - Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.

Before the court is Jason Abbo’s application for a certificate of appealability

(COA). Abbo, a federal prisoner, is serving a 180-month sentence on his felon-inpossession-of-a-firearm conviction. Relying on Johnson v. United States, 135 S. Ct. 2551

(2015), he filed a motion under 28 U.S.C. § 2255 to vacate his sentence, contending that

the district court erred by enhancing his sentence under the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e). The district court denied both the motion and the

application for a COA. As explained below, we conclude that reasonable jurists could not

find Abbo’s. claims debatable, so we too deny his application for COA.

•>»**

* This order and judgment is not binding precedent, except under the doctrines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.

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BACKGROUND

In 2012, a jury convicted Abbo on a charge of being a. felon in possession of a

firearm. See 18 U.S.C. § 922(g)(1). At sentencing, Abbo did not object to the Presentence

Investigation Report (PSR), which had recommended sentencing under the ACCA after

identifying at least three predicate felony offenses. The PSR referenced the following

convictions from Oklahoma state courts:

1. A 2002 conviction, as a juvenile, for “Possession of a controlled

dangerous substance with intent to distribute,” Case No: JDL-02-1119;

2. a 2004 conviction, as an adult, for “Possession of a controlled dangerous

substance with intent to distribute” 'and “Conspiracy for unlawful

distribution of controlled dangerous substance,” Case No: CF-20045069;

3. a 2007 conviction for “Domestic abuse by strangulation” and “Burglary,

first degree,” Case No: CF-2007-189; and

- -4. a 2008 conviction for “Burglary, first degree” andTDomestic assault and

battery,” Case No: CR-20Q7-3486.

The district court adopted the PSR and sentenced Abbo to 180 months of imprisonment,

the minimum term allowed by statute. Abbo appealed, but,on non-ACCA grounds, and in

2013 we affirmed. United States v. Abbo, 515 F. App’x 764 (10th Cir. 2013).

In 2016, after the Supreme Court's decision in Johnson v. United States, 135 S. Ct.

2551 (2015), struck down the ACCA’s residual clause as void for vagueness, Abbo

moved-under 28 U.S.C. § 2255 to vacate his sentence. He argued, under Johnson, that his

sole ACCA-qualifying felony conviction was his 2004 adult conviction for “possession

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of a controlled dangerous substance with intent to distribute.” The district court denied

both his motion to vacate and his application for a certificate of appealability.

Abbo now seeks a certificate of appealability from this court. We will issue a

COA only where "the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(1)(B), (c)(2). To make such a showing, “[t]he

petitioner 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).

DISCUSSION

The ACCA imposes enhanced sentences on offenders found to have at least three

predicate convictions for any combination of violent felonies or serious drug offenses.

See. 18 U.S.C. § 924(e). In determining whether prior convictions count as violent

felonies or serious drug offenses, courts employ the "categorical approach.” Under that

approach, we “compar[e] the elements of the crime of conviction to the ACCA.” United

States v. Titties, 852 F.3d 1257, .1265 (10th Cir. 2017). But when the statute of conviction

is divisible, meaning that "it contains more than one crime,” we apply the “modified

categorical approach,” which “reveals the relevant elements for the comparison under the

categorical approach.-” Id. Although Johnson struck down § 924(e)(2)(B)’s “residual

clause” as unconstitutionally vague, the “enumerated-offenses clause” and the “elements”

Abbo initially appealed before securing a COA, so we remanded for the

district court to determine in the first instance whether a COA should issue.

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clauses both remain valid bases for defining a “violent felony.”2 See United States v.

Degeare, 884 F.3d 1241, 1245 (10th Cir. 2018) (citing Johnson, 135 S. Ct. at 2563).

To prove a Johnson claim, a petitioner has the burden to establish “that the

sentencing court, more likely than not, relied on the residual clause to enhance his

sentence under the ACCA.” United States v. Driscoll, 892 F.3d 1127, 1135 (10th Cir.

2018). When the sentencing record is silent or ambiguous about which clause the district

court relied on, we look to the “relevant background legal environment” to aid in

determining whether the district court relied on the residual clause. See United States v.

Snyder, 871 F.3d 1122, 1130 (10th Cir. 2017), cert, denied, 138 S. Ct. 1696 (2018). If the

law at the time would have permitted the district court to rely on either the elements

clause or the enumerated-offenses clause, then-the petitioner will normally fail to meet

this burden. See United States v. Washington, 890 F.3d 891, 899 (10th Cir. 2018), cert.

denied, 139 S. Ct. 789 (2019).

■f' -'r

Here, Abbo fails in his brief to mount any arguments that the district court in fact

relied on the residual clause. Notwithstanding this failure, we have reviewed the

sentencing record ourselves and found it silent on which clause of the ACCA the district

2 «

[T]he term ‘violent felony’ means any crime punishable by imprisonment

for a term exceeding one year, or any act of juvenile delinquency involving the use or

carrying of a firearm, knife, or destructive device that would be punishable by

imprisonment for such term if committed by an adult, that—(j) 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 use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to

another[.]” 18 U.S.C. § 924(e)(2)(B).

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court in fact relied on. Therefore, to prevail on his Johnson claim, Abbo must establish

that the relevant background legal environment makes it more likely than not that the

district court relied on the residual clause. See Snyder, 871 F.3d at 1130.

As mentioned, Abbo concedes that his 2004 conviction for possession, with intent

to distribute, a controlled substance qualifies as a “serious drug offense.” Beyond that,

Abbo invites us into the thicket of his extensive criminal history, but we need go no

further than his two felony burglary convictions. Because they qualify as “violent

felonies,” those convictions, combined with his conceded serious drug offense, require

the ACC A sentence he received.

A* The 2007 conviction for “Burglary, first degree”

For this offense, the judgment of conviction states that Abbo violated 21 O.S.

§ 1431, which in 2007 read as follows:

Every person who breaks into and enters the dwelling house of another, in

which there is at the time .some human being, with intent to commit some

crime therein, either:

1. By forcibly bursting or breaking the wall, or an outer door, window, or

shutter of a window of such house or the lock or bolts of such door, or

the fastening of such window or shutter; or

2. By breaking in any other manner, being armed with a dangerous

weapon or being assisted or aided by one or more confederates then

actually present; or

3. By unlocking an outer- door by means of false keys or by picking the

lock thereof, or by lifting a latch or opening a window, is guilty of

burglary in the first degree.

Id. at § 1431 (2007). The statute does not list separate crimes with separate elements, but

rather lists various factual means by which a defendant can commit the “breaking and

entering” element. See id. The statute is therefore indivisible. See Mathis v. United States,

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136 S. Ct. 2243, 2251 (2016). Abbo argues that this crime covers more conduct than

generic burglary3 because it defines burglary as breaking and entering into a “dwelling

house,”4 which, he says, could include locations that are not structures, such as a mobile

home. Abbo’s Br. at 24. This argument gets Abbo nowhere.

Our court has previously held that Oklahoma first-degree burglary is a violent

felony. See United States v. Bennett, 108 F.3d 1315, 1317 (10th Cir. 1997). This holding

is reinforced by the recent case of United States v. Stitt, where the Supreme Court held

that generic burglary “includes burglary of a structure or vehicle that has been adapted or

is customarily used for overnight accommodation.” 139 S. Ct. 399, 403-04 (2018).

Simply ,put, Oklahoma’s first-degree burglary matches the definition of federal generic

burglary. See id. Therefore, Abbo’s 20.07 conviction qualifies as a “violent felony” under .. . the enumerated-offenses clause of the ACCA, and reasonable jurists could not debate the

point. See Slack, 529 U.S. at 484.5

,,r

-y

3 <;

[T]he generic, contemporary meaning of burglary contains at least the

following elements: an unlawful or unprivileged entry into, or remaining in, a

building or other structure, with intent to commit a crime.” Taylor v. United States,

495 U.S. 575, 598 (1990).

At the time, Oklahoma law defined “dwelling house” as “includ[ing] every

house or edifice, any part of which has usually been occupied by any person lodging

therein at night, and any structure joined to and immediately connected with such a

house or edifice.” 21 O.S. § 1439 (2007).

.fcS*-1

2 We need not decide whether Abbo’s associated felony conviction for

“domestic abuse by strangulation” would qualify as an independent violent felony,

because Abbo’s other convictions establish the ACCA’s conditions.

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B. The 2008 conviction for “Burglary, first degree”

For the reasons given in support of the 2007 first-degree burglary conviction’s

counting as a violent felony, so too does his 2008 burglary conviction. Oklahoma did not

redefine the crime of first-degree burglary between 2007 and 2008. See 21 O.S. § 1431

(2008). And reasonable jurists could not debate this. See Slack, 529 U.S. at 484.6

CONCLUSION

Because Abbo had a qualifying serious drug offense and two qualifying violent

felonies, he qualified for enhanced sentencing under the ACCA. Accordingly, we

deny his application for a COA and dismiss this appeal.

Entered for the Court

Gregory A. Phillips

Circuit Judge

*5.ai

6 Again, we need not decide whether Abbo’s associated felony conviction for

“domestic assault and battery” would qualify as an independent violent felony,

because Abbo’s other convictions establish the ACCA’s conditions.

APPENDIX

B' I

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■V

UNITED STATES OF AMERICA, Plaintiff-Respondent, vs. JASON MITCHELL ABBO,

Defendant-Movant.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

2018 U.S. Dist. LEXIS 34397

Case No. CR-11-385-M,(CIV-16-722-M)

March 2, 2018, Decided

March 2, 2018, Filed

Editorial Information: Prior History

United States v. Abbo, 515 Fed. Appx. 764, 2013 U.S. App. LEXIS 11051 (10th Cir. Okla., May 30, 2013)

Counsel

{2018 U.S. Dist. LEXIS 1}For United States of America, Plaintiff: Ashley

L Altshuler, Travis D Smith, US Attorney's Office-OKC, Oklahoma City, OK.

Judges: VICKI MILES-LaGRANGE, UNITED STATES DISTRICT JUDGE.

Opinion

Opinion by:

VICKI MILES-LaGRANGE

Opinion

ORDER

- Defendant-Movant Jason Mitchell Abbo ("Abbo"), a federal-prisoner, filed a Motion to Vacate

Sentence under 28 U.S.C. § 2255 on June 25, 2016. On August 22, 2016, plaintiff-respondent United

States of America filed its response, and on October 29, 2016, Abbo filed his reply.

I. Introduction

On December 13, 2011, a grand jury returned an Indictment charging Abbo with felon in possession

„ of a firearm, in violation of 18 U.S.C. § 922(g)(1). Following a jury trial, the jury returned a verdict of

guilty. On June 21, 2012, the United States Probation Office released its revised presentence

investigation report ("PSR"). The PSR stated that Abbo qualified as an armed career criminal under

the Armed Career Criminal Act ("ACCA") based upon the following prior convictions: (1) Oklahoma

County District Court Juvenile Division Case No. JDL-02-1119 - possession of a controlled

dangerous substance with intent to distribute in violation of Okla. Stat. tit. 63, § 2-402; (2) Oklahoma

County District Court Case No. CF-2004-5069 - possession of a controlled dangerous

substance{2018 U.S. Dist. LEXIS 2} with intent to distribute (methamphetamine) in violation of Okla.

Stat. tit. 63, § 2-401 (B)(1), and conspiracy for unlawful distribution of controlled dangerous substance

in violation of Okla. Stat. tit. 63, § 2-408; (3) Oklahoma County District Court Case No. CF-2007-189

'- domestic abuse by strangulation in violation of Okla. Stat.'tit. 21, § 644(H), and burglary in the first

degree in violation of Okla. Stat. tit. 21, § 1431; and (4) Oklahoma County District Court Case No.

CF-2007-3486 - domestic abuse (assault and battery) in violation of Okla. Stat. tit. 21, § 644(C). On

September 6, 2012, this Court sentenced Abbo to 180 months of imprisonment under the ACCA.

Abbo filed a notice of appeal, and on May 30, 2013, the United States Court of Appeals for the Tenth

Circuit affirmed Abbo's conviction and sentence.

■V'

II. Discussion

lyjcases

restrictions and terms and conditions of the .Matthew Bender Master Agreement.

0869

In his § 2255 motion, Abbo asserts that in light of the United States Supreme Court's decision in

Johnson v. United States, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), he no longer qualifies as an

armed career criminal under the ACCA sentencing enhancement and that his sentence should be

vacated. While Abbo agrees that his conviction in Oklahoma County District Court Case No.

CF-2004-5069 is a "serious drug offense" and qualifies as one predicate offense for purposes of the

ACCA enhancement and that his conviction in Oklahoma County District Court Case No.

CF-2007-189 qualifies{2018 U.S. Dist. LEXIS 3} as one predicate offense for purposes of the ACCA

enhancement, Abbo contends that neither one of his other two convictions qualifies as a predicate

offense for purposes of the ACCA enhancement.

The ACCA provides:

(e)(1) In the case of a person who violates section 922(g) of this title and has three previous

convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a

serious drug offense, or both, committed on occasions different from one another, such person

shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any

other provision of law, the court shall not suspend the sentence of, or grant a probationary

sentence to, such person with respect to the conviction under section 922(g).

(2) As used in this subsection (A) the term "serious drug offense" means (i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled

'Substances Import and Expert Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a

maximum term of imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance (as defined in section 102 of the

Controlled{2018 U.S. Dist. LEXIS 4} Substances Act (21 U.S.C. 802)), for which a maximum

term of imprisonment of ten years or more is prescribed by law;

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding

one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or

destructive device that would be punishable by imprisonment for such term if committed by an

adult, that(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 use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another, and

delinquency involving a violent felony.18 U.S.C. § 924(e).1

- In Johnson, the United States Supreme Court held "that imposing an increased sentence under the

residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due

process.” Johnson, 135 S. Ct. at 2563. However, the Supreme Court held that "[tjoday's decision

does not call into question application of the Act to the four enumerated offenses, or the remainder of

the Act's definition{2018 U.S. Dist. LEXIS 5} of a violent felony." Id. It also does not affect the

ACCA's definition of a serious drug offense.

Abbo asserts that his juvenile conviction for possession of a controlled dangerous substance with

1 yjcases

restrictions and terms and conditions of the Matthew Bender Master Agreement.

intent to distribute does not qualify as a predicate offense for purposes of the ACCA enhancement

because it was a juvenile conviction. Abbo, however, cites to no case law supporting his assertion

that juvenile convictions cannot qualify as serious drug offenses under the ACCA. Further,

[this] position is . . . contrary to the plain language of the ACCA, which provides a mandatory

15-year sentence based on three previous convictions "for a violent felony or serious drug

offense." 18 U.S.C. § 924(e)(1). The definition of serious drug offense contains no exceptions for

juveniles; it is based entirely on the maximum term of imprisonment prescribed by law. See id. §

924(e)(2)(A). In contrast, "violent felony" is defined as "any crime punishable by imprisonment

for a term exceeding one year, or any act of juvenile delinquency involving the use of or carrying

of a firearm, knife, or destructive device that would be punishable by imprisonment for such term

if committed by an adult, [involving physical force or certain specific crimes]."{2018 U.S. Dist.

LEXIS 6} Id. § 924(e)(2)(B).

. . . The ACCA's differing definitions show that Congress knows how to include or exclude

juvenile status when it so desires. It made a choice, when defining violent felonies, to include

juvenile delinquencies only when they involve certain dangerous weapons, thereby excluding

schoolyard brawls and other unarmed altercations that could be prosecuted as violent felonies if

committed by adults. In contrast, juvenile convictions for serious drug offenses do not need

special treatment because the requirement that they be punishable by 10 years' imprisonment ten times the sentence length for a violent felony - ensures they are sufficiently grave to justify

the ACCA's 15-year minimum sentence.United States v. Coleman, 656 F.3d 1089, 1092-93 (10th

Cir. 2011). See also Smith v. United States, No. 16-1122, 2016 U.S. App. LEXIS 23586, 2016

WL 9413661, at *2 (6th Cir. Sept. 15, 2016) ("Juvenile convictions may qualify as predicate

offenses under the ACCA."); United States v. Johnson, 570 F. App'x 852, 857 (11th Cir. 2014)

("prior convictions during the defendant's adolescence still count under the ACCA"). Additionally,

to support his position, Abbo relies on United States Sentencing Guidelines § 4A1.1(b). By its

owri'terms, however, this provision is not relevant to whether Abbo's juvenile conviction is a

predicate offense under the ACCA; whether an offense merits a criminal history point under the

Sentencing Guidelines is a separate question from whether it is recognized{2018 U.S. Dist.

LEXIS 7} under the ACCA.

Accordingly, the Court finds that Abbo's juvenile conviction for possession of a controlled dangerous

substance with intent to distribute does qualify as a predicate offense for purposes of the ACCA

enhancement and that Abbo, therefore, would have three qualifying convictions and would be an

armed career criminal under the ACCA.2 The Court, thus, finds that Abbo is not entitled to relief.

III. Evidentiary Hearing

As set forth above, Abbo's motion does not set forth a basis for relief from his conviction or

sentence. Because that determination is conclusively shown from the motion, files, and record, the

Court finds there is no need for an evidentiary hearing on this motion. See 28 U.S.C. § 2255; United

States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000).

IV. Conclusion

Accordingly, for the reasons set forth above, the Court DENIES Abbo's Motion to Vacate Sentence

under 28 U.S.C. §2255.

IT IS SO ORDERED this 2nd day of March, 2018.

Is/ Vicki Miles-LaGrange

,7k"

VICKI MILES-LaGRANGE

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

UNITED STATES DISTRICT JUDGE

Footnotes

The italicized language has come to be known as the ACCA's residual clause.

Because the Court has found that Abbo has three qualifying convictions, the Court declines to

address whether his conviction in Oklahoma County District Court Case No. CF-2007-189 for

domestic abuse (assault and battery) would qualify as a predicate offense for purposes of the ACCA

enhancement

lyjcases

restrictions and terms and conditions of the Matthew Bender Master Agreement.

■pi

APPENDIX

"C"

.Vc:-

UNITED STATES COURT OF APPEALS

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

January 3, 2020

Christopher M. Wolpert

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 18-6081

(D.C. No. 5:16-CV-00722-M)

(W.D. Okla.)

JASON MITCHELL ABBO,

Defendant - Appellant.

ORDER

Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.

rfi- ?!

This matter is before us on appellant Jason Abbo’s Motion for Reconsideration,

which per our order dated September 16, 2019, was construed as a petition for panel

rehearing and accepted for filing. See Fed. R. App. P. 40.

Upon consideration, and as construed, the request for panel rehearing is granted in

part and only to the extent that the Order Denying Certificate of Appealability issued on

April 8, 2019 is VACATED, and the attached and revised Order Denying Certificate of

Appealability shall issue in its place. The Clerk is directed to file the amended decision

■-J

effective the date of this order. Any other relief requested in the Motion for

Reconsideration is denied.

Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk

•:*

UNITED STATES COURT OF APPEALS

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

January 3,2020

Christopher M. Wolpert

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JASON MITCHELL ABBO,

No. 18-6081

(D.C. No. 5:16-CV-00722-M &

5:11-CR-00385-M-1)

(W.D. Okla.)

Defendant - Appellant.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.

In September 2012, after being convicted of being a felon in possession of a

firearm, Mr. Abbo was sentenced to a 180-month term of imprisonment under the Armed

Career Criminal Act (ACCA). See 18 U.S.C. § 924(e)(1). On June 25, 2016, relying, on

Samuel Johnson v. UnitedStates, 135 S. Ct. 2551 (2015), his counsel filed in the district

court a motion to vacate his sentence, under 28 U.S.C. § 2255. Though acknowledging

that the district court had treated his three drug convictions as “serious drug offenses”

under § 924(e)(2)(A), Mr. Abbo’s counsel argued that three other felonies could no

longer be considered “violent felonies” under § 924(e)(2)(B)—specifically his Oklahoma

* 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.

felony convictions for First-Degree Burglary, 21 Okla. Stat. § 1431; Domestic Abuse by

Strangulation, 21 Okla. Stat. § 644; and Domestic Abuse (Assault and Battery), 21 Okla.

Stat. § 644. In doing so, Mr. Abbo’s counsel assumed that the sentencing court had relied

on the violent-felony definition’s residual clause, later struck down in Samuel Johnson as

unconstitutionally vague. He claimed without any analysis that none of the three

convictions could satisfy § 924(e)(2)(B)(i)-(ii)’s enumerated-offense clause or the

element-of-force clause. But Mr. Abbo offered no supporting legal or record analysis,

just a bare conclusion.

On March 2, 2018, the district court issued an order denying Mr. Abbo’s'Motion

to Vacate Sentence. On July 2, 2018, Mr. Abbo’s counsel filed in the district court an

application for a-certificate of appealability. Mr. Abbo’s sole argument-for the certificate

of appealability was that his juvenile conviction for possession with intent to distribute a

controlled dangerous substance should not have counted as a serious drug offense under

the ACCA. On July 23, 2018, the district court issued a one-page order denying Mr.

Abbo a certificate of appealability.

On December 4, 2018, Mr. Abbo’s counsel filed an appellate brief in our court. On

April 8, 2019, we issued an Order Denying Certificate of Appealability. We did not

evaluate all of Mr. Abbo’s felony convictions for whether they qualified as violent

felonies or serious drug offenses under the ACCA. United States v. Abbo, 767 F. App’x

675 (10th Cir. 2018). Instead, we relied on two of Mr. AbboVdrug felonies and two

violent felonies—two Oklahoma first-degree burglary convictions. Id. at 678-79. But we

now see that we were mistaken in attributing two first-degree burglary convictions to Mr.

Abbo. Though twice charged with that offense, the state dismissed one of those charges.

Accordingly, we must determine whether any of Mr. Abbo’s..other felonies provide the

needed third predicate ACCA conviction under § 924(e)(2)(A)-(B). As explained below,

we still conclude that Mr. Abbo qualifies as an armed career criminal and that reasonable

jurists could not find his contrary claims debatable. Otherwise stated, Mr. Abbo has a .

combination of at least three qualifying serious drug offenses or violent felonies under

§ 924(e), which requires his statutory mandatory-minimum sentence.

BACKGROUND

In 2012, a jury convicted Mr. Abbo. of being a felon in possession of a firearm. See

18 U.S.C. § 922(g)(1). At sentencing, Mr. Abbo did not object to the probation officer’s

sentencing recommendation set out in the Presentence Investigation Report (PSR), that is,

a statutory-minimum sentence of 15 years’ imprisonment under the ACCA. The PSR did

not identify which of Mr. Abbo’s convictions qualified as predicate violent felonies or

serious drug offenses under the ACCA. In fact, the PSR mistakenly referenced U.S.S.G.

§ 4B1.2'(career offender) as the operative law on ACCA'liability, not 18 U.S.C. § 924(e).

1 In Mr. Abbo’s brief in our court, his counsel noted that in the district court

“[t]he government’s response argued that ‘his ACCA predicate convictions do not

rely on the residual clause,’ but, that ‘he has two predicate convictions for serious

drug offenses as defined under the ACCA and two convictions for burglary in the '

first degree that categorically qualify as violent felonies under the ACCA.

Appellant’s Br. at 7 (emphasis added). We took the government’s position as

recounted by Mr. Abbo as true. But with Mr. Abbo’s felony-conviction documents in

hand, we see that Mr. Abbo was convicted of one count of Oklahoma first-degree

burglary, but obtained a dismissal of the other first-degree burglary charge in a

separate prosecution.

■ . T*

After reviewing the PSR and the parties’ briefs, we evaluate these felony

convictions:

1. A 2002 conviction, as a juvenile, for “Possession of a controlled

dangerous substance with intent to distribute,” Case No: JDL-02-1119;

2. Two 2004 convictions, as an adult, first, for “Possession of a controlled

dangerous substance with intent to distribute,” and, second, for

“Conspiracy for unlawful distribution of controlled dangerous

substance,”2 Case No: CF-2004-5069;

3. A 2007 conviction for “Domestic abuse by strangulation” Case No:

CF-2007-189; and

4. Two 2008 convictions charged together, first, for “Burglary, first

degree,” and, second, “Domestic assault and battery,” Case No:

CR-2007-3486.

Facing no objection from Mr. Abbo, so without identifying which of his felony

convictions it relied on, the district court generally concluded that he qualified for an

enhanced-sentence under the ACCA. The-district court adopted-the PSR and sentenced

Mr. Abbo to 15 years’ imprisonment. Mr. Abbo appealed, but on non-ACCA grounds,

and we affirmed. United'States v. Abbo, 515 F. App’x 764 (10th Cir. 2013).

Having lost his bid for a COA in the district court, Mr. Abbo has appealed. We

will issue a COA only where “the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(1)(B), (c)(2). To make such a showing,

“[t]he petitioner 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).

2 The parties did not address whether the conspiracy charge counts

independently as a serious drug offense, so we do not reach the issue since Mr. Abbo

qualifies as an armed career criminal either way...

DISCUSSION

The ACCA imposes enhanced sentences on defendants convicted under 18 U.S.C.

§ 922(g)(1)—felon in possession of a firearm or ammunition—if they have any

combination of at least three violent felonies or serious drug offenses. See 18 U.S.C.

§ 924(e)(1), In determining whether prior convictions count as violent felonies or serious

drug offenses, courts employ the “categorical approach.” Under that approach, we

“comparfe] the elements of the crime of conviction to the ACCA.” United States v.

Titties, 852 F.3d 1257, 1265 (10th Cir. 2017). But when the statute of conviction is

divisible, meaning that “it contains more than one crime,” we apply the “modified

categorical approach,” which “reveals the relevant elements for the comparison under the

categorical approach.” Id. Though Samuel-Johnson struck down § 924(e)(2)(B)’s

“residual clause” as unconstitutionally vague, it left the “enumerated-offense” and the

“elements” clauses in force for measuring what felony convictions qualify as a “violent

felony.”3 See United States v. Degeare, 884 F.3d 1241, 1245 (10th Cir. 2018) (citing

Johnson, 135 S. Ct. at 2563).

3 «

[T]he term ‘violent felony’ means any crime punishable by imprisonment

for a term exceeding one year, or any act of juvenile delinquency involving the use or

carrying of a firearm, knife, or destructive device that would be punishable by

imprisonment for such term if committed by an adult,, that—(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 use of explosives, .or otherwise

involves conduct that presents a serious potential risk of physical injury to

anotherf.]” 18 U.S.C. § 924(e)(2)(B).

‘

To prove a Samuel Johnson claim, a petitioner has the burden to establish “that the

sentencing court, more likely than not, relied on the residual clause to enhance his

sentence under the ACCA.” United States v. Driscoll, 892 F.3d 1127, 1135 (10th Cir.

2018). When the sentencing record is silent or ambiguous about which clause the district

court relied on, we look to the “relevant background legal environment” to aid in

determining whether the district court relied on the residual clause. See United States v.

Snyder, 871 F.3d 1122, 1130 (10th Cir. 2017), cert, denied, 138 S. Ct. 1696 (2018). If the

law at the time would have permitted the district court to rely on either the elements

clause or the enumerated-offenses clause, then the petitioner will normally fail to meet

this burden. See United States v. Washington, 890 F.3d 891, 899 (10th Cir. 2018), cert.

denied, 139 S. Ct. 789 (2019).

Before us, Mr. Abbo fails to identify his basis for asserting that the district court

relied on § 924(e)(2)(B)(2)’s residual clause to categorize any of his felonies as “violent

felonies.” Notwithstanding this failure, we have reviewed the sentencing record and

found it silent on which clause of the ACCA'the district court relied on. So to prevail on

his Samuel Johnson claim, Mr. Abbo must establish that the relevant background legal

environment makes it more likely than not that the district court relied on the residual

clause than the other clauses to categorize any conviction as a violent felony. See Snyder,

871 F.3d at 1130. He has failed to do so.

In denying Mr. Abbo a COA, we point to three of his felony convictions that are

beyond his Samuel Johnson challenge. As noted, we do not address three other felonies,

which might also qualify as violent felonies or serious drug offenses.

A. The 2004 Conviction for “Possession of a Controlled Dangerous Substance

with Intent to Distribute”

To begin, as the first required qualifying ACCA predicate felony offense, Mr.

Abbo concedes that his 2004 conviction for possession, with intent to distribute, a

controlled substance qualifies as a “serious drug offense.”

B. The 2007 conviction for “Burglary, First Degree”

For this offense, the judgment of conviction states that Mr. Abbo violated 21 O.S.

§ 1431, which in 2007 read as follows:

Every person who breaks into and enters the dwelling house of another, in

which there is at the time some human being, with intent to commit some

crime therein, either:

1. By forcibly bursting or breaking the wall, or an outer door, window, or

shutter of a window of such house or the lock or bolts of such door, or

the fastening-of such window or shutter; or

2. By breaking in any othet,manner, being armed with a dangerous

weapon or being assisted or aided by one or more confederates then

actually present; or

3. By unlocking an outer door by means of false keys or by picking the :

lock thereof, or by lifting a latch or opening a window, is guilty of.,,

burglary in the first degree.

The statute does not list separate crimes with separate elements, but rather lists -various factual means by which a defendant can commit the “breaking into and entering”

element. See id. The statute is therefore indivisible. See Mathis v. United States, 136 S.

Ct. 2243, 2251 (2016). Mr. Abbo argues that this crime covers more conduct than generic

yjsv1

burglary4 because it defines burglary as breaking into and entering a “dwelling house, ”5

which, he says, could include locations that are not structures, such as a mobile home.

Appellant’s Br. at 24.

But our court has held that Oklahoma first-degree burglary is a crime of violence

under U.S.S.G. § 4B1.2 (requiring that the burglary be of a dwelling). See United States

v. Bennett, 108 F.3d 1315, 1317 (10th Cir. 1997). We noted that the defendant was

charged with breaking into and entering a dwelling house and that “the statutory

definition of first-degree burglary requires that the burglary be of a ‘dwelling.’” Id. Mr.

Abbo’s argument is also undermined by the recent case of United States v. Stitt, in which

the Supreme Court concluded that generic burglary “includes burglary of a structure or

vehicle that has been adapted or-is customarily used for overnight accommodation.”6_.l 3 9

S. Ct. 399, 403-04 (2018). Simply put, in view of these cases, Oklahoma’s first-degree

4 « [T]he generic,’’’contemporary meaning of burglary contains at least the

*•

following elements: an unlawful or unprivileged entry into, or remaining in, a

building or other structure, with intent to commit a crime.” Taylor v. United States,

495 U.S. 575, 598 (1990).

5 At the time, Oklahoma law defined “dwelling house” as “includ[ing] every

house or edifice, any part of which has usually been occupied by any person lodging

therein at night, and any structure joined to and immediately connected with such a

house or edifice.” 21 O.S. § 1439 (2007).

6 The Supreme Court announced its decision in Stitt on December 10, 2018, six

days after Mr. Abbo filed his appellate brief. In his appellate brief, Mr. Abbo argued

that his Oklahoma first-degree-burglary conviction should not qualify as a violent

felony under the ACCA, because of what he termed its broad definition of “dwelling

house.” Appellant’s Br. at 24. But Stitt soon defeated Mr. Abbo’s argument on this

point, ruling that generic burglary includes burglaries of “vehicles designed or

adapted for overnight use. . . .” 139 S. Ct. at 407..

burglary offense meets the requirements of federal generic burglary. See id. Therefore,

Mr. Abbo’s 2007 first-degree burglary conviction qualifies as a “violent felony” under

the enumerated-offenses clause of the ACCA. We conclude that reasonable jurists could

not debate the point. See Slack, 529 U.S. at 484.7

C. The Juvenile Conviction for “Possession of a Controlled Dangerous

Substance with Intent to Deliver”

Mr. Abbo argues that this offense is not properly counted as a serious drug offense

under 18 U.S.C. §924(e)(2)(A)(ii), because the government never showed that it involved

a maximum sentence of at least 10 years of imprisonment. If pursued on direct appeal,

this argument might have carried some force. But Mr. Abbo cannot rely on Samuel

Johnson to challenge the ACCA-qualifying status of convictions for reasons beyond the

district court’s use of the violent-felqny’s residual clause, found at 18 U.S.C.

§ 924(e)(2)(B)(ii). See United States v. ■Copeland, 921 F.3d 1233, 1243 (10th Cir. 2019).

Because this is. so, this juvenile conviction counts as a serious drug offense—the third

needed ACCA predicate conviction, together with his adult serious drug offense and his

violent-felony conviction for Oklahoma first-degree burglary. 8

7 We need not decide whether Mr. Abbo’s associated felony conviction for

“domestic abuse by strangulation” would qualify as an independent violent felony.

Mr. Abbo’s other convictions suffice to establish the ACCA’s conditions.

Accordingly, we do not need to decide Mr. Abbo’s § 924(e)(1) argument that

two of his felonies were not “committed on occasions different from each other”:

(i) Abbo’s felony conviction for Domestic Abuse by Strangulation under 21 Okla.

Stat. §644(H) (2007) and (ii) his above-noted felony conviction for First-Degree

Burglary. Even so, we do note that the responding officer in his probable-cause

affidavit recounted that Mr. Abbo first forced his way into a residence and hit and

CONCLUSION

Because Mr. Abbo’s Oklahoma first-degree-burglary conviction remains a

violent felony after Samuel Johnson, and because he has two serious drug offenses

not properly challengeable under that decision, (obviously, neither involves the

residual clause of the “violent felony” definition), he qualifies for enhanced

sentencing under the ACCA. Accordingly, we deny his application for a COA and

dismiss this appeal.

Entered for the Court

Gregory A. Phillips

Circuit Judge

choked his girlfriend, then was physically removed by another person, and then

kicked in the door to the residence and began assaulting his girlfriend again.

For the same reason, we need not decide whether Mr. Abbo’s 2008 felony

conviction for Domestic Abuse Assault and Battery counts as a violent felony under

the•\ ACCA.

-V

APPENDIX ' "D"

-f

■'nr-'

(

OKLAHOMA CITY POLICE DEPARTMENT CRIME REPORT

Reported Date: 03/20/06

Time;»,.12 :52

Case: 06-024589 (000)

Page: 1

Code: 21-644.H SS

Crime: DOM AB STRANG Class: 050112

Occurrence Date: 03/20/06Day: MONDAY

Time: 12:52Status:

Closing- Officer:

Location: 7'^ NW. 113TH'PL., OK

RD:

5.98

INVOLVED PERSONS

VICTIM-01:

DOB:

Apt:

POB:

Business Name:

State.

■ Hair:

Eye:

Race :

Phon.e:

Hgt:

Sex:

Adu/Juv:f||

Phone:

VICTIM-02:

DOB:

Apt:

POB:

Business Name

Phone:

i Hgt:

Sex:

Wgt:

Adu/Juv:

Bid:

Phone:

IMPOUNDED:

License:

Year:

Make:

Identifiers^

Vin:

—= INVOLVED VEHICLES ===>

State:

Type:

Model:

Style:

Expires:

Color:

<+■ i.

Disposition:

= SUSPECTS/ARRESTS ==

ARRESTED:'

ABBO JASON MITCHELL

DOB: 03/06/1986

Race: W

Sex: M

6512 EASTWOOD Cl., OK

Apt:

' State: OK

Zip: 73132

Phone: 405 721-7811 ■

Adu/Juv: A

POB: OKC, 'OK Hair: BRO

Eye: GRN- Hgt: 603

Wgt: 210

Bid: LRG

■ J

Business Name: MORTGAGE

Phone: 405 812-2350

Driver License: 080569843

Social Security:

CII:

. FBI:

Booking Number:

== CRIME ANALYSIS' ELEMENTS ==

Age: 20

Build: LRG

NARRATIVE

HEFNER DIVISION TELEPHONE REPORT

CHARGES:

RELEASE BY RECORDS

Oklahoma City Ponce uepaiuiwn;

Cap;. Tavlor Di;;a

Sup). Of Record:-

.AR ABBO

MAY 3 0 2019

FIRST DEGREE BURGLARY 21-1431

VIOLATION. OF DOMESTIC ABUSE BY STRANGULATION

21-644.H

•

released by

"J BODY OF REPORT

ON TODAYS DATE I RECEIVED A CALL TO 77^NW. 113TH PLACE IN REFERENCE TO A

FIRST DEGREE BURGLARY WHERE AR ABBO KICKED IN THE FRONT DOOR OF VI f§g§g§|^

RESIDENCE. THEY GAVE A DESCRIPTION OF A

----------- :-----------m‘ WITH ------~—

AND

__ THAT LEFT THE SCENE. I SPOTTED THE VEHICLE IN THE'7200 BLOCK OF

NW. EXPRESSWAY AND STOPPED IT.

I MADE CONTACT WITH AR ABBO. I ESCORTED AR ABBO BACK TO 77® NW. 113TH PLACE

FOR BOTH VI j ~ J] AND VI

TO IDENTIFY. THEY BOTH IDENTIFIED AR ABBO AS THE

SUBJECT WHO KICKED IN THE FRONT DOOR.

I INTERVIEWED VI%ggg&AND SHE STATED AR ABBO WAS LIVING WITH HER FOR THE LAST

MONTH AND HAD BEEN IN THE PROCESS OF MOVING OUT. HE CAME OVER LAST NIGHT AND

.SPENT THE NIGHT AT THE HOUSE ON 11111111%. SHE GOT UP THIS MORNING AND DECIDED

SHE DID NOT WANT ANYTHING ELSE TO DO WITH HIM SO SHE DROVE TO VI

HOUSE,

WHICH IS A COUPLE OF BLOCKS AWAY. AR ABBO WOKE UP AND FOUND HER GONESO HE,

WENT DOWN TO VI fj||gi| RESIDENCE, KNOWING SHE WOULD BE THERE, AND STARTED

gam OPENED THE DOOR TO MAKE CONTACT WITH AR ABBO TO

BEATING ON THE DOOR. VI 18111111

TELL HIM TO LEAVE AND HE FORCED HIS WAY INTO THE HOUSE AND STARTED AN ARGUMENT

WITH VI

D THEN STARTED ASSAULTING HER BY HITTING HER IN THE HEAD CAUSING

„

A SWELLING BY HER RIGHT TEMPLE, THEN,_ GRABBING HER FROM BEHIND PUTTING HIS ARM

AROUND HER NECK AND CHOKING HER. VI iSSW® GOT AR ABBO OFF OF VI

AND

PUSHED HIM OUT OF THE DOOR AND TOLD VI

TO SHUT THE DOOR AND LOcF IT~

VI iHililiil WAS OUTSIDE WITH AR ABBO AND TOLD HIM TO LEAVE AND WAIT UNTIL THEY HAD

CALMED DOWN TO COME BACK. AR ABBO TOLD VI

HE WAS NOT LEAVING AND KICKED

IN THE FRONT DOOR. HE AGAIN STARTED ASSAULTING VIAND CHOKING HER. THIS

TIME, VI |

BIT AR ABBO ON THE ARM CAUSING A BITE MARK ON HIS LEFT BICEP.

THEY THEN GOT HIM BACK OUT THE DOOR AND HE LEFT.

WANTED TO PRESS CHARGES FOR FIRST DEGREE BURGLARY AND I PLACED „

DOMESTIC ABUSE VIOLATION OF STRANGULATION CHARGES ON AR ABBO BECAUSE HE WAS

LIVING WITH VI fppa FOR THE LAST MONTH.

I WANT TO NOTE THERE TWO MINOR CHILDREN IN THE HOUSE THAT SAW THIS DOMESTIC

VIOLENCE, ONE BEING VI ®1S81188| CHILD AND ONE BEING VI §|jjgj|

CHILD.

ARROW WRECKER SERVICE WAS CALLED TO IMPOUND AR ABBO'S VEHICLE.

LT. RATELIFF, #0585, WAS CALLED AND SIGNED THE PROBABLE CAUSE AFFIDAVIT AND

TOOK PHOTOGRAPHS -OF VI

-INJURIES AND OF THE FRONT DOOR OF VI

HOME.

VI WmBm% INJURIES WERE SWELLING ON HER RIGHT TEMPLE AND SCRAPES

ON HER RIGHT

ARM AND LEG AND A BRUISE UNDER HER RIGHT ARM.

AR ABBO WAS TRANSPORTED TO THE. OKLAHOMA COUNTY JAIL WITHOUT FURTHER INCIDENT.

END OF REPORT

RELEASE BY RECORDS

Oklahoma City Police Department

Cep;. Taylor Dinli

_____ .Sum. Gi‘Records

OKLAHOMA CITY POLICE DEPARTMENT REPORT TRAILER

==== = = ==:

:======:

======<Ml=sLJC=MiiiiL

Reporting Officer: SCHWARZ RICK Number: 001005 Date: 03/20/06 Time: 12:52

Typed by: PD0565

Number: PD0565 Date: 03/2 OyrQ- 6- a Time;: v 15:53 L

Approving Officer: PD0565

Number: PD0565 Date: 0 3 / 21/t) T1 * Time":' IfrriR-----=2=

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.