O'BRIEN, Circuit Judge.*
Fred Douglas Smith pled guilty to being a felon in possession of a firearm. He appeals from the district court's application of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to enhance his sentence.1 Specifically at issue is whether an assault or battery committed by a person in custody on an employee of the Office of Juvenile Affairs is, categorically, a violent felony. We AFFIRM.
I. BACKGROUND
On September 8, 2010, Smith pled guilty in the Western District of Oklahoma to one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The presentence investigation report (PSIR) recommended an enhanced sentence under the ACCA because Smith had previously committed three violent felonies.2 Smith objected. Relevant here, he contended his conviction of assault and battery3 on an Office of Juvenile Affairs employee (for which he was charged as an adult at age sixteen) did not qualify as a crime of violence under the ACCA. The district court overruled his objection and sentenced him to 200 months in prison and 3 years of supervised release.
II. DISCUSSION
"Whether a defendant's prior conviction qualifies as a violent felony under the ACCA is a question of law that we review de novo."4 United States v. Silva, 608 F.3d 663, 665 (10th Cir.2010), cert. denied, ___ U.S. ____, 131 S.Ct. 1473, 179 L.Ed.2d 313 (2011). The ACCA defines the phrase "violent felony" to mean
any crime punishable by imprisonment for a term exceeding one year, ... 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;...
18 U.S.C. § 924(e)(2)(B).
[D]etermining whether a prior conviction falls under the ACCA, we apply a "categorical approach," generally looking only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction. That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the ACCA, without inquiring into the specific conduct of this particular offender. To satisfy this categorical approach, it is not necessary that every conceivable factual offense covered by a statute fall within the ACCA. Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, qualifies under the ACCA as a violent felony or a serious drug offense.
If, in the ordinary case, a criminal statute proscribes conduct broader than that which would satisfy the ACCA's definition of a violent felony or serious drug offense, a federal court may then also look at the charging documents and documents of conviction to determine whether the defendant in a particular case was convicted of an offense that falls within the ACCA. We have referred to this as a "modified categorical" approach.
United States v. West, 550 F.3d 952, 957-58 (10th Cir.2008) (quotation and citation omitted), partially overruled on other grounds by Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).
Smith was convicted under Okla. Stat. tit. 21, § 650.2(D) (2003), which reads:
Every person in the custody of the Office of Juvenile Affairs who, without justifiable or excusable cause, knowingly commits any assault, battery or assault and battery upon the person of an Office of Juvenile Affairs employee while said employee is in the performance of his or her duties shall, upon conviction thereof, be guilty of a felony.
Oklahoma law defines assault as "any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another," Okla. Stat. tit. 21, § 641 (2003), and battery as "any willful and unlawful use of force or violence upon the person of another." Okla. Stat. tit. 21, § 642 (2003).
According to the Supreme Court "physical force" for the purposes of enhancement under 18 U.S.C. § 924(e)(2)(B)(i) "means violent force — that is, force capable of causing physical pain or injury to another person" as opposed to mere touching. Johnson v. United States, ___ U.S. ____, 130 S.Ct. 1265, 1270-71, 176 L.Ed.2d 1 (2010). But under Oklahoma law, mere offensive touching satisfies the requirement for force in a battery. See Steele v. State, 778 P.2d 929, 931 (Okla.Crim.App. 1989) ("[W]e hold that only the slightest touching is necessary to constitute the `force or violence' element of battery."). That prompts Smith to ask us to employ the modified categorical approach5 to determine whether his state conviction qualified as a violent felony under federal law. However, we need not do so. As interpreted by the Oklahoma Court of Criminal Appeals, the statute clearly reaches behavior that does not "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another" as required for enhancement under 18 U.S.C. § 924(e)(2)(B)(i). But that does not end the matter. As we explain, Smith's crime qualifies on its face for enhancement under 18 U.S.C. § 924(e)(2)(B)(ii), the residual clause of the ACCA.
Smith was not convicted of simple assault or battery. He was convicted of assault or battery by a person in the custody of Juvenile Affairs on an employee of that office. As the government points out, under the residual clause a crime that does not meet the requirements for use of violent force under 18 U.S.C. § 924(e)(2)(B)(i) may be a "violent felony" if it "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). Smith's crime qualifies as a violent felony under the residual clause of the ACCA because the offense categorically involves conduct that presents a serious potential risk of physical injury to another.
The residual clause was intended to reach "conduct `roughly similar, in kind as well as in degree of risk posed' to the enumerated examples preceding the [clause]." United States v. Williams, 559 F.3d 1143, 1147 (10th Cir.2009) (citing Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). "Therefore, the question here is whether [assault and/or battery on a Juvenile Affairs employee by a person in custody] under Oklahoma law in the ordinary case, is roughly (1) similar in kind, and (2) similar in degree of risk to burglary, arson, extortion, or crimes involving explosives," the enumerated violent felonies. Id. at 1148 (emphasis added).
The Supreme Court has recently clarified the test to be used under this provision of the ACCA. See Sykes v. United States, ___ U.S. ____, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). The defendant in Sykes argued the "Court's decisions in Begay [driving under the influence is not an ACCA predicate] and Chambers [escape by mere failure to report does not qualify as a predicate offense] require ACCA predicates to be purposeful, violent, and aggressive in ways that vehicle flight [from an officer] is not." Id. at 2275. The Court concluded Sykes was reading too much into the prior opinions and distinguished Begay6 because the DUI offense at issue there "need not be purposeful or deliberate" whereas the flight offense in Sykes had "a stringent mens rea requirement;" "[v]iolators must act knowingly or intentionally." Id. (quotation omitted). Where the felony at issue is "not a strict liability, negligence, or recklessness crime" the test is not whether the crime was "purposeful, violent, and aggressive" but whether it is "similar in risk to the listed crimes." Id. at 2276.
The statute under which Smith was convicted requires an offender to, without justifiable or excusable cause, knowingly, willfully and unlawfully attempt or offer with force or violence to do a corporal hurt to an Office of Juvenile Affairs employee or to willfully and unlawfully use force or violence upon an employee who is performing his or her duties. Even though "only the slightest touching is necessary to constitute the `force or violence' element" of battery, see Steele, 778 P.2d at 931, the statute contains a stringent mens rea requirement for both assault and battery beyond strict liability, recklessness or negligence.7 Therefore, the question at issue is whether the crime of assault or battery upon an employee of the Office of Juvenile Affairs is "similar in degrees of risk to burglary, arson, extortion, or crimes involving explosives." Williams, 559 F.3d at 1148.
The crimes enumerated in 18 U.S.C. § 924(e)(2)(B)(ii), "while not technically crimes against the person, nevertheless create significant risks of bodily injury or confrontation that might result in bodily injury." Id. (quoting James v. United States, 550 U.S. 192, 199, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)). An assault or battery committed on a peace officer is not equivalent to the same act committed against any other person. Id. at 1148-49. "An apt analogy can be drawn between battery of a police officer and escape from custody8 or eluding police." Id. at 1148. Failure to stop at the command of a police officer is sufficient to support enhancement under the ACCA because it "will typically lead to a confrontation with the officer being disobeyed" or "a chase or at least an effort by police to apprehend the perpetrator," which "increase[s] the likelihood of serious harm to the officers involved as well as any bystanders." Id. at 1149 n. 8. Similarly, "[c]onfrontation with police is the expected result of vehicle flight." Sykes, 131 S.Ct. at 2274. The common characteristic of all these crimes is the volatile situation created by a defendant's behavior with respect to someone who is required or would reasonably be expected to respond with force to control the situation. This is very different from an assault or battery where a member of the public may be able to retreat or simply fail to respond without escalating the violence. An ordinary assault or battery under Oklahoma law may require resort to the modified categorical approach to assess the potential for violence or physical harm created by a given situation, but this offense requires no such deconstruction. An assault or battery committed by a person in the custody of the state on those responsible for containing him necessarily gives rise to the sort of "powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so." Williams, 559 F.3d at 1149 (quoting United States v. West, 550 F.3d 952, 963 (10th Cir.2008)). The district court properly used the crime of assault and/or battery on an Oklahoma Department of Juvenile Affairs employee by a person in the custody of the department to enhance Smith's sentence under the ACCA.
AFFIRMED.
