United States v. Winrow.
No. 21-6069. 9/27/2022. W.D.Okla. Judge Bacharach. Armed Career Criminal Act—Categorical Approach—Modified Categorical Approach.
September 27, 2022
Winrow pleaded guilty to being a felon in possession of a firearm. Two of those convictions were for aggravated assault and battery under Okla. Stat. tit. 21, § 646. The district court concluded that he was subject to an Armed Career Criminal Act (ACCA) sentence enhancement because he had three qualifying predicates, and it sentenced him to 188 months.
On appeal, Winrow contended that the district court erred in enhancing his sentence under the ACCA, asserting that aggravated assault and battery as defined by Oklahoma is not categorically a violent felony. A felony conviction is a “violent felony” under the ACCA if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 USC § 924(e)(2)(B)(i). To determine whether a conviction qualifies as an ACCA predicate, courts use a “categorical approach,” under which a conviction qualifies as a predicate only if the elements of the offense necessarily satisfy the ACCA definition. If the statute reaches conduct that does not involve the use of physical force against another person, a conviction under the statute does not qualify as a violent felony under the ACCA’s elements clause. Courts employ the “modified categorical approach” when the prior conviction is based on a statute that sets out one or more elements of the offense in the alternative. Winrow argued that § 646(A)(1) and (2) describe alternative means of committing a single offense, so the statute is indivisible and must be evaluated using the categorical approach. Section 646(A) provides: “An assault and battery becomes aggravated when committed under any of the following circumstances: (1) When great bodily injury is inflicted upon the person assaulted; or (2) When committed by a person of robust health or strength upon one who is aged, decrepit, or incapacitated . . . .” Where, as here, neither the statute nor case law shows that the statute’s alternatives are elements, and the record materials are ambiguous, the statute must be treated as indivisible and the standard categorical approach must be used. Applying this approach, a person could violate § 646(A)(2) without the use, attempted use, or threatened use of force. A conviction under § 646 is therefore not categorically a violent felony and cannot serve as a predicate offense for ACCA purposes.
The matter was remanded with instructions to vacate the sentence and for resentencing without the ACCA enhancement.