FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          April 24, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-3308
                                             (D.C. Nos. 2:16-CV-02319-JWL and 2:12-
SHANE MCMAHAN,                                          CR-20120-JWL-1)
                                                             (D. Kan.)
      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________

      Shane McMahan appeals the district court’s order denying his 28 U.S.C.

§ 2255 motion. Specifically, McMahan argues that the sentencing court erred by

relying on the now-defunct residual clause of the Armed Career Criminal Act

(ACCA) of 1984, 18 U.S.C. § 924(e), when it imposed a 15-year prison sentence. See

Johnson v. United States, 

, 2563 (2015) (striking down ACCA’s

residual clause as unconstitutionally vague). But McMahan concedes that he has two

convictions for crimes that constitute violent felonies under the ACCA’s enumerated-

offense clause. And we conclude today that his Kansas conviction for aggravated


      *
        This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
battery, see Kan. Stat. Ann. § 21-3414(a)(1)(C) (1995) (repealed 2011), constitutes a

violent-felony conviction under the ACCA’s elements clause. Thus, the sentencing

court correctly imposed the ACCA’s enhanced penalty. See § 924(e)(1) (imposing

mandatory minimum 15-year prison sentence for defendants with three or more prior

convictions for violent felonies or serious drug offenses who are subsequently

convicted of being a felon in possession of a firearm). Accordingly, we affirm the

district court’s order denying McMahan’s § 2255 petition.

                                      Background

      In 2013, McMahan pleaded guilty to possession of a firearm by a convicted

felon. See 18 U.S.C. § 922(g)(1). As part of the plea, McMahan admitted he had six

prior convictions for Kansas felonies: two for burglary of a dwelling, one for

burglary of a vehicle, one for attempted criminal threat, one for conspiracy to commit

robbery, and one for aggravated battery. The parties stipulated that McMahan would

serve a 15-year prison sentence in exchange for the plea. See Fed. R. Crim. P.

11(c)(1)(C) (authorizing parties to a plea agreement to stipulate to appropriate

sentence). The district court accepted McMahan’s plea and sentenced him to 15 years

in prison. See 

parties’ stipulation regarding appropriate sentence

“binds the court once the court accepts the plea agreement”).

      McMahan didn’t appeal. But in 2015, the Supreme Court struck down the

ACCA’s residual clause as unconstitutionally vague. 

; see

also Welch v. United States, 

, 1265 (2016) (applying Johnson


                                            2
retroactively). Thus, after Johnson and Welch, the only offenses that constitute

violent felonies for ACCA purposes are those that satisfy either its enumerated-

offense clause or its elements clause. See United States v. Pam, 

, 1203

(10th Cir. 2017). In other words, predicate convictions for burglary, arson, extortion,

or crimes that involve the use of explosives, see § 924(e)(2)(B)(ii), or for offenses

that “ha[ve] as an element the use, attempted use, or threatened use of physical force

against the person of another,” § 924(e)(2)(B)(i), remain convictions for violent

felonies under the ACCA. See 

.

      In light of this new legal landscape, McMahan moved to vacate his sentence

under § 2255. He conceded that his two burglary-of-a-dwelling convictions remain

convictions for violent felonies under the ACCA. But he argued that his other four

convictions do not. The government responded that McMahan’s 2003 aggravated-

battery conviction under § 21-3414(a)(1)(C) “has as an element the use, attempted

use, or threatened use of physical force against the person of another” and is thus a

violent felony under the ACCA’s elements clause. § 924(e)(2)(B)(i). Citing United

States v. Treto-Martinez, 

(10th Cir. 2005), the district court agreed

and thus denied McMahan’s petition. See 

(holding

that § 21-3414(a)(1)(C) constitutes “crime of violence” under United States

Sentencing Guidelines’ elements clause); United States v. Williams, 

,

1147 n.7 (10th Cir. 2009) (explaining that because ACCA’s elements clause and




                                           3
Guidelines’ elements clause are substantively identical, we may look to cases

interpreting one to interpret other).

       We granted McMahan a certificate of appealability because we determined that

the district court’s conclusion was at least debatable. See Slack v. McDaniel, 

, 483–84 (2000). But for the reasons stated below, we ultimately agree with the

district court’s conclusion that § 21-3414(a)(1)(C) satisfies the ACCA’s elements

clause. Therefore, we affirm its order.

                                          Analysis

I.     Preliminary Issues

       Initially, we address two preliminary issues that arose at oral argument. First,

we questioned whether the nature of McMahan’s plea allows him to now attack his

sentence under Johnson. As part of McMahan’s plea agreement, the parties stipulated

to a 15-year prison sentence. And once the district court accepted McMahan’s plea, it

became bound by that stipulation. See Fed. R. Crim. P. 11(c)(1)(C). Thus, McMahan

arguably wasn’t sentenced under the ACCA at all. See 

(explaining that under Rule 11(c)(1)(C), it’s technically “the binding plea agreement

that is the foundation for the term of imprisonment to which the defendant is

sentenced” (quoting Freeman v. United States, 

, 535 (2011) (Sotomayor,

J., concurring))). And if McMahan wasn’t sentenced under the ACCA, then he

couldn’t have been sentenced under the ACCA’s unconstitutional residual clause.




                                             4
      But as we’ve previously explained, when a defendant’s “plea agreement

expressly used the ACCA—specifically its statutorily mandated minimum term of

imprisonment—to establish the agreed-upon 180-month sentence,” the defendant

may challenge that sentence as illegal under Johnson. 

–99.

Here, both McMahan’s plea agreement and the district court’s judgment expressly

referenced § 924(e), which codifies the ACCA’s mandatory 15-year minimum

sentence. Thus, McMahan’s sentence is based on the ACCA. And he may therefore

challenge it as illegal under Johnson. See 

–99.

      Next, we questioned at oral argument whether we should reach the merits of

McMahan’s appeal given that he waived his right to collaterally attack his sentence

as part of his plea. We assume without deciding that we could enforce McMahan’s

waiver had the government asserted it. See United States v. Porter, 

,

1145 (10th Cir. 2005) (declining to invalidate plea agreement based on subsequent

change in substantive law). But the government didn’t invoke McMahan’s collateral-

attack waiver below. And it expressly declined to rely on the waiver at oral argument.

      Collateral-attack waivers aren’t jurisdictional, so we have no duty to enforce

them sua sponte. See United States v. Parker, 

, 786 n.4 (10th Cir. 2013).

Whether we may enforce them sua sponte is, however, “not entirely clear.” Id.; cf.

Day v. McDonough, 

, 202 (2006) (holding that courts may sua sponte

dismiss habeas petitions as untimely when they “confront[] no intelligent waiver on

the [s]tate’s part,” but warning that it would be “an abuse of discretion to override a


                                           5
[s]tate’s deliberate waiver of a limitations defense”). We need not resolve this

question today; to the extent we have discretion to sua sponte enforce McMahan’s

collateral attack-waiver, we decline to exercise that discretion. Thus, we turn to the

merits of McMahan’s appeal.

II.   McMahan’s Aggravated-Battery Conviction

      In relevant part, the ACCA imposes a 15-year mandatory minimum prison

sentence on offenders with at least three prior violent-felony convictions. § 924(e)(1).

After Johnson, a violent felony is an offense that (1) is “punishable by imprisonment

for a term exceeding one year,” § 924(e)(2)(B), and (2) either “has as an element the

use, attempted use, or threatened use of physical force against the person of another,”

§ 924(e)(2)(B)(i); or “is burglary, arson, or extortion, [or] involves use of

explosives,” § 924(e)(2)(B)(ii). Because aggravated battery doesn’t satisfy any

portion of § 924(e)(2)(B)(ii)’s enumerated-offense clause, the only dispute here is

whether McMahan’s aggravated-battery conviction satisfies the ACCA’s elements

clause—that is, whether “the use, attempted use, or threatened use of physical force

against the person of another” is an element of § 21-3414(a)(1)(C). § 924(e)(2)(B)(i).

      At the time of McMahan’s prior offense, § 21-3414(a)(1)(C) defined

aggravated battery, in relevant part, as “intentionally causing physical contact with

another person when done in a rude, insulting or angry manner with a deadly weapon,

or in any manner whereby great bodily harm, disfigurement[,] or death can be

inflicted.” And the parties agree that “intentionally causing physical contact with


                                            6
another person when done in . . . any manner whereby great bodily harm,

disfigurement[,] or death can be inflicted,” 

least of the acts” that § 21-

3414(a)(1)(C) “criminalized” at the time of McMahan’s offense, United States v.

Hammons, 

, 1054 (10th Cir. 2017). Likewise, the parties agree we

therefore need only resolve whether this particular language satisfies the elements

clause. See 

(explaining that under categorical approach,

we look to whether “the least of the acts criminalized by the [applicable] statute”

satisfies the elements clause).

       Citing our opinion in Treto-Martinez, the district court ruled that § 21-

3414(a)(1)(C) proscribes a violent felony under the ACCA’s elements clause. In

Treto-Martinez, we considered whether a violation of the exact same version of § 21-

3414(a)(1)(C) constituted a crime of violence under a substantively identical

elements clause in the United States Sentencing Guidelines.1 

–

59. Compare U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2005) (defining crime of violence, in

relevant part, as “any offense under federal, state, or local law that has as an element

the use, attempted use, or threatened use of physical force against the person of

another”), with § 924(e)(2)(B)(i) (defining violent felony, in relevant part, as felony

that “has as an element the use, attempted use, or threatened use of physical force

       1
        Because of the similarity between the ACCA’s elements clause and the
Guidelines’ elements clause, we often look to cases interpreting one to interpret the
other. 

n.7. For our purposes—i.e., asking whether § 21-
3414(a)(1)(C) contains, as an element, “the use, attempted use, or threatened use of
physical force against the person of another,” § 924(e)(2)(B)(i)—the analyses are
identical under the ACCA and the Guidelines. McMahan doesn’t argue otherwise.

                                             7
against the person of another”). In concluding that § 21-3414(a)(1)(C) constitutes a

crime of violence for purposes of § 2L1.2, we noted that the statute requires contact

in a manner “whereby great bodily harm, disfigurement[,] or death can be inflicted.”

(quoting § 21-3414(a)(1)(C)). And we reasoned

that any such contact must inherently involve “at the very least . . . the ‘threatened

use of physical force.’” 

(quoting § 2L1.2 cmt. n.1(B)(iii)).

      McMahan doesn’t seek to distinguish Treto-Martinez from his case. Rather, he

argues that Treto-Martinez is no longer good law. But we recently reaffirmed that

Treto-Martinez remains the law of this circuit in United States v. Trayon Williams,

No. 17-3071, 

, ---F.3d--- (10th Cir. Apr. 20, 2018), which we

decided after oral argument in this case. See 

*5–6 (rejecting defendant’s

argument that Treto-Martinez is no longer good law and holding that current version

of Kansas’ aggravated-battery statute—which prohibits, in relevant part, “knowingly

causing bodily harm to another person . . . in any manner whereby great bodily harm,

disfigurement[,] or death can be inflicted”—is a crime of violence under Guidelines’

elements clause (quoting Kan. Stat. Ann. § 21-5413(b)(1)(B))). Therefore, Treto-

Martinez continues to bind us here. Accordingly, we conclude that aggravated

battery, as defined by § 21-3414(a)(1)(C), is a violent felony under the ACCA’s

elements clause.2


      2
        Even if we concluded that § 21-3414(a)(1)(C) is no longer a violent felony
under the elements clause, it’s not clear that this would entitle McMahan to relief
under § 2255. The parties don’t address what effect, if any, our recent decision in

                                            8
                                     Conclusion

      McMahan concedes that his two convictions for burglary of a dwelling

constitute ACCA predicates. And Treto-Martinez, which remains good law in this

circuit, compels us to conclude that § 21-3414(a)(1)(C) contains “as an element the

use, attempted use, or threatened use of physical force against the person of another.”

§ 924(e)(2)(B)(i). Thus, aggravated battery under § 21-3414(a)(1)(C) is a violent

felony, and McMahan has the three violent-felony convictions required to sustain his

sentence under § 924(e)(1). Accordingly, we affirm the district court’s order denying

McMahan’s § 2255 motion.


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




United States v. Snyder, 

(10th Cir. 2017), might have on McMahan’s
claim. Because we affirm on other grounds, we need not discuss it either.

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