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

                             FOR THE TENTH CIRCUIT                           July 11, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-6121
                                                  (D.C. No. 5:05-CR-00044-HE-1)
BRENT GALBREATH,                                         (W.D. Oklahoma)

      Defendant - Appellant.

–––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                            No. 17-6122
v.                                                 (D.C. Nos. 5:16-CV-00632-HE
                                                     and 5:05-CR-00044-HE-1)
BRENT GALBREATH,                                         (W.D. Oklahoma)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
      Brent Galbreath pleaded guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). He was sentenced under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e), due to four Oklahoma convictions: two

for second-degree burglary, one for second-degree rape, and one for maiming. After

the Supreme Court invalidated the residual clause of the ACCA in Johnson v. United

States, 

(2015), we granted Mr. Galbreath permission to file a second

28 U.S.C. § 2255 motion. The district court 1 concluded that his convictions for

second-degree burglary and maiming were violent felonies without the residual

clause and denied his petition. We affirm the district court.

                                 I. BACKGROUND

      On February 2, 2005, an Oklahoma highway patrol trooper arrested

Mr. Galbreath. At the time of his arrest, Mr. Galbreath had three handguns and crack

cocaine in his possession. The government filed a criminal complaint against

Mr. Galbreath alleging one count of possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1) and one count of possession of cocaine with intent to distribute in

violation of 21 U.S.C. § 841(a)(1). Mr. Galbreath entered a plea agreement with the

government pursuant to which he pleaded guilty to the charge under § 922(g)(1), the

government dismissed the charge under § 841(a)(1), and Mr. Galbraith waived his

right to appeal the conviction or pursue collateral relief with certain exceptions. The


      1
        While the same district judge sentenced Mr. Galbreath and denied his § 2255
motion, to avoid confusion, we refer to the district court at the time it sentenced
Mr. Galbreath as the “sentencing court” and the district court at the time it denied his
successive § 2255 motion as the “district court.”
                                           2
government advanced four prior Oklahoma convictions to qualify Mr. Galbreath

under the ACCA: two second-degree burglary convictions, one second-degree rape

conviction, and one maiming conviction. The sentencing court sentenced

Mr. Galbreath to a prison term of 292 months in August 2005.

       At the time of Mr. Galbreath’s sentencing, a defendant qualified under the

ACCA if he or she had “three previous convictions by any court . . . for a violent

felony or a serious drug offense, or both, committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1). The term “violent felony” included any crime

punishable by imprisonment for a term exceeding one year that: (1) “has as an

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

of another” (force clause); (2) “is burglary, arson, or extortion, involves use of

explosives” (enumerated offenses clause); or (3) “otherwise involves conduct that

presents a serious potential risk of physical injury to another” (residual clause). 

(ii).

       Mr. Galbreath attempted to appeal his conviction but we granted the

government’s motion to enforce the plea agreement. He then filed a first motion to

vacate his sentence under 28 U.S.C. § 2255 which the district court denied. After an

amendment to the sentencing guidelines, Mr. Galbreath filed a motion for a reduction

of his prison sentence, and the district court reduced his sentence to 268 months.

Mr. Galbreath appealed, arguing his sentence should have been reduced even further,

but we affirmed. United States v. Galbreath, 506 F. App’x 736 (10th Cir. 2012).



                                            3
      Mr. Galbreath filed another motion to reduce his sentence under 18 U.S.C.

§ 3582(c)(2) after the guidelines were again amended. While this motion was

pending and after the Supreme Court invalidated the residual clause of the ACCA in

Johnson, Mr. Galbreath sought authorization to file a second § 2255 motion, which

we granted. The district court denied both of Mr. Galbreath’s motions. As to the

§ 2255 motion, the district court noted that while the second-degree rape conviction

was possibly a “violent crime” under only the residual clause, the sentencing court

considered the two second-degree burglary convictions under the enumerated

offenses clause and viewed the maiming conviction under the force clause. As to the

§ 3582 motion, the district court noted the government’s efforts to enforce

Mr. Galbreath’s waiver in the plea agreement, which explicitly referenced § 3582(c),

and denied relief based on that agreement. The district court granted Mr. Galbreath a

certificate of appealability for his § 2255 motion, and he now appeals the district

court’s denial of his sentence reduction and § 2255 motions. Mr. Galbreath also filed

a motion to this court to consolidate the two appeals.

                                   II. DISCUSSION

                  A. Standard of Review and Burden of Persuasion

      “On appeal from the denial of a § 2255 motion, ordinarily we review the

district court’s findings of fact for clear error and its conclusions of law de novo.”

United States v. Snyder, 

, 1125 (10th Cir. 2017) (internal quotation

marks omitted). A “district court’s determination that a defendant qualifies for an

ACCA enhancement is a finding. But that finding rests on the sentencing record,

                                            4
which is a matter of historical fact, as well as the relevant background legal

environment at the time of sentencing, which is a legal conclusion.” United States v.

Driscoll, --- F.3d ---, ---, No. 16-8118, 

, at *4 n.3 (10th Cir. 2018)

(internal quotation marks omitted).

      Because this is a successive § 2255 motion, Mr. Galbreath “must pass through

two gates.” United States v. Washington, 

, 894 (10th Cir. 2018). At the

first gate, he must make a prima facie showing that his motion relies on newly

discovered evidence or a new rule of constitutional law. See 

Mr. Galbreath passed through this first gate when we granted him authorization to

file his second § 2255 motion. See 

At the second gate, he “must back up

the prima facie showing with actual evidence to show he can meet this standard.” 

(internal quotation marks omitted). Because Mr. Galbreath purports to rely on

a new rule of constitutional law by virtue of Johnson, he must “show by a

preponderance of the evidence—i.e., that it is more likely than not—his claim relies

on Johnson.” 

It is not sufficient for Mr. Galbreath “to show the district

court could have relied on the residual clause.” 

(internal

quotation marks omitted). And because the sentencing court did not identify which

clause it relied upon during sentencing, Mr. Galbreath must show that the relevant

legal background at the time of his sentencing in August 2005 and the record before

the sentencing court establish he was sentenced under the residual clause. See 

–30.



                                            5
      The government concedes that Mr. Galbreath’s second-degree rape conviction

qualifies as a violent felony solely under the residual clause, so we consider only his

burglary and maiming convictions.

                         B. Second-Degree Burglary Convictions

      We first consider Mr. Galbreath’s second-degree burglary convictions under

Okla. Stat. tit. 21, § 1435. Both the record before the sentencing court and the

relevant legal background support the finding that the sentencing court viewed these

convictions as falling under the enumerated offenses clause of the ACCA.

      After the preparation of a Presentence Investigation Report (PSR),

Mr. Galbreath filed a generalized objection to being labeled an Armed Career

Criminal. The government responded to Mr. Galbreath’s objections in a sentencing

memorandum in which it argued that Mr. Galbreath’s burglary convictions qualified

under the enumerated offenses clause. The government conceded that Oklahoma

second-degree burglary includes conduct beyond generic burglary as defined by the

Supreme Court in Taylor v. United States, 

(1990), but provided the

charging documents for Mr. Galbreath’s convictions that showed he was charged

with burglary of buildings.

      And during sentencing, the sentencing court emphasized the fact that it was

burglary of buildings:

      In particular, the prior burglary offenses, as I think the government’s
      brief indicates, you can’t tell from the nature of the offense itself or
      from the statute itself that those are necessarily violent crimes, but I
      think the underlying circumstances as reflected by the convictions do
      indicate that they were burglary of buildings such as would be

                                           6
      considered a violent crime within the standards that apply in these sorts
      of federal proceedings.

Supp. App. at 82 (emphasis added). Mr. Galbreath concedes that both the

government’s sentencing memorandum and the sentencing court’s comments suggest

the sentencing court viewed the second-degree burglaries as falling under the

enumerated offenses clause and not the residual clause.

      Mr. Galbreath argues, however, that without the residual clause, his burglary

convictions fail because we must apply current case law. Specifically, he contends

we must apply the Supreme Court’s decision in Mathis v. United States, 

(2016). We disagree. As noted above, under Snyder, we must look at the

relevant legal background at the time of sentencing. And by 2005, when

Mr. Galbreath was sentenced, we had consistently held that Oklahoma second-degree

burglary involving entering a building fell within Taylor’s definition of burglary. See,

e.g., United States v. Green, 

, 1515–16 (10th Cir. 1995); United States

v. Hill, 

, 1153–55 (10th Cir. 1995) (en banc); see also United States v.

Couchman, 720 F. App’x 501, 506–07 (10th Cir. 2018), petition for cert. filed Apr.

10, 2018 (No. 17-8480).

      Both the sentencing record and the relevant legal background show that

Mr. Galbreath’s second-degree burglary convictions fell within the enumerated

offenses clause at the time of sentencing.




                                             7
                                      C. Maiming

      We now consider Mr. Galbreath’s maiming conviction under Okla. Stat. tit.

21, § 751. As with the burglary convictions discussed above, the sentencing court

record and the relevant legal background support the finding that the sentencing court

viewed this conviction as falling under the force clause of the ACCA.

      In its response to Mr. Galbreath’s objections to the PSR, the government noted

the maiming statute “prohibits inflicting a disabling or disfiguring injury upon a

person with the premeditated design to injure” and argued that it “clearly meets the

ACCA definition of ‘violent felony’ by having as an element the ‘use . . . of physical

force against the person of another.’” App. I at 43 (quoting 18 U.S.C.

§ 924(e)(1)(B)(i)). During sentencing, the sentencing court did not specifically

address the maiming conviction, noting only that “the indicated offenses plainly do

qualify as violent crimes within the meaning of the” ACCA. Supp. App. at 81.

      Mr. Galbreath argues, however, that “the record at sentencing made no

mention of which clause applied” to the maiming conviction and the maiming

conviction would not qualify as a violent crime under the force clause. Appellant’s

Reply Br. at 1. As noted above, the relevant inquiry is whether the maiming

conviction satisfied the force clause at the time of sentencing.

      One month prior to Mr. Galbreath’s sentencing, we decided United States v.

Perez-Vargas, 

(10th Cir. 2005), abrogated by United States v.

Castleman, 

(2014), as recognized in United States v. Ontiveros, 

(10th Cir. 2017). In Perez-Vargas, we reviewed a district court’s sixteen-

                                           8
level sentence enhancement under the United States Sentencing Guidelines (USSG)

resulting from the court’s conclusion that Mr. Perez-Vargas’s conviction for third-

degree assault in Colorado was a “crime of violence” under the force clause. 

2 We noted that the Supreme Court, in its Taylor decision, had “instructed

sentencing courts to take ‘a formal categorical approach, looking only to the statutory

definitions of the prior offenses, and not to the particular facts underlying those

convictions.’” 

(quoting 

). But in our application of

Taylor, we “held that if the statute is ambiguous, or broad enough to encompass both

violent and nonviolent crimes, a court can look beyond the statute to certain records

of the prior proceeding, such as the charging documents.” 

marks omitted).

       We then determined that, because the record did not include any proof

allowable under Taylor or Shepard v. United States, 

(2005), “[w]e

must . . . turn to the plain language of the Colorado statute itself to determine if,

standing alone, it would support the crime of violence enhancement.” 

The Colorado statute prohibited “knowingly or recklessly caus[ing] bodily injury to

another person or with criminal negligence . . . caus[ing] bodily injury to another

       2
        While Perez-Vargas involves the interpretation of a “crime of violence”
under the USSG, both the ACCA and the USSG include the identical definition at
issue here: any crime that “has as an element the use, attempted use, or threatened
use of physical force against the person of another.” 18 U.S.C. 924(e)(2)(B)(i);
USSG § 2L1.2, Application Note 1(B)(iii). Thus, in 2005, precedent related to the
USSG would also be relevant to an analysis of the same phrase in the ACCA. This is
particularly so because Perez-Vargas interpreted Taylor v. United States, 

(1990), and Shepard v. United States, 

(2005), which are cases
interpreting “crime of violence” under the ACCA.
                                            9
person by means of a deadly weapon,” Colo. Rev. Stat. § 18-3-204, and defined

bodily injury as “physical pain, illness, or any impairment of physical or mental

condition,” 

Unlike the definition of “crime of violence” in the

USSG which focused on the means by which an injury may occur, Colorado’s statute

focused on the result of conduct. 

. Although we

acknowledged that “most third degree assaults will involve the use or threatened use

of physical force, . . . the language of the statute allows for other possibilities,” such

as indirect force. 

Because the “statutory language of Colorado’s third

degree assault statute does not necessarily include the use or threatened use of

‘physical force,’” we held it was “not categorically a crime of violence.” 

And because we had “an inadequate record of the facts supporting the prior

conviction, our analysis [was] constrained by the language of the relevant statutes.”

glance, Perez-Vargas may appear to support Mr. Galbreath’s position.

Oklahoma’s maiming statute provides that “[e]very person who, with premeditated

design to injure another, inflicts upon his person any injury which disfigures his

personal appearance or disables any member or organ of his body or seriously

diminishes his physical vigor, is guilty of maiming.” Okla. Stat. tit. 21, § 751.

Similar to the third-degree assault statute at issue in Perez-Vargas, Oklahoma’s

maiming statute focuses on the result of a criminal defendant’s conduct, not the

means. And, as noted by Mr. Galbreath, “poisoning a person with the intent to cause

permanent injury, and a resulting permanent injury, is conduct . . . within the terms of

                                            10
the statute,” but, at least at the time of sentencing, may not constitute the requisite

physical force. Appellant’s Br. at 22.

       Mr. Galbreath’s case differs from Perez-Vargas in a crucial aspect—the

sentencing court here had the charging document for Mr. Galbreath. While the

maiming statute may be “broad enough to encompass both violent and nonviolent

crimes, [we] can look beyond the statute to certain records of the prior proceeding,

such as the charging documents.” 

(internal quotation

marks omitted). And the charging document states that Mr. Galbreath “wilfully,

knowingly and with the premeditated design to injure [the victim], . . . brand[ed]

LSP into [the victim’s] arm with a red hot coat hanger and thereby inflicted upon

[the victim] injuries which disfigured her personal appearance.” App. I at 53

(emphasis added). Contrary to the hypotheticals posited by Mr. Galbreath, his

maiming conviction was based on a use of physical force against the victim, namely

branding her with a red hot coat hanger. Because the sentencing court had the

charging documents, it did not need to rely on the residual clause. See United States

v. Pina-Nunez, 167 F. App’x 66, 68 (10th Cir. 2006) (noting that under Perez-

Vargas, Colorado third-degree assault convictions “do not categorically qualify as

crimes of violence” and a “reviewing court, therefore, must look beyond the statute

to the charging documents . . . to determine on a case-by-case basis whether a

Colorado conviction for third-degree assault qualifies as a crime of violence”);

United States v. Morales-Chavez, 153 F. App’x 540, 545 (10th Cir. 2005) (finding

that, under Perez-Vargas, a violation of the Colorado third-degree assault statute “is

                                            11
not necessarily a crime of violence,” but then determining it was a crime of violence

there because the charging document “clearly supports the district court’s holding

that the defendant’s conviction . . . included the ‘use of force’”). 3

       Thus, both the sentencing record and the relevant legal background suggest the

sentencing court viewed Mr. Galbreath’s maiming conviction as a crime of violence

under the elements clause—not the residual clause. As a result, Mr. Galbreath has not

“show[n] by a preponderance of the evidence—i.e., that it is more likely than not—

his claim relies on Johnson.” 

. Accordingly, we affirm

the district court’s denial of his § 2255 motion.

                             D. Sentence Reduction Motion

       Mr. Galbreath concedes that he is presently ineligible for a sentence reduction

because he was sentenced under the ACCA. See USSG § 1B1.10(a)(2)(B) (a sentence

reduction is not authorized under § 3582(c)(2) if an amendment “does not have the

effect of lowering the defendant’s applicable guideline range”). Because we affirm

the district court’s denial of Mr. Galbreath’s § 2255 motion, we also affirm the denial

of his motion to reduce his sentence.

                                  III. CONCLUSION

       Neither the relevant background legal environment nor the record before the

sentencing court reveal that the sentencing court more likely than not relied on the

residual clause to find that the burglary convictions or the maiming conviction

       3
        While these cases were decided up to six months after Mr. Galbreath was
sentenced, they provide insight into the relevant legal background and
contemporaneous interpretation of Perez-Vargas.
                                            12
qualified as crimes of violence under the ACCA. Accordingly, Mr. Galbreath has not

established by a preponderance of the evidence that his motion “relies on” Johnson.

He has therefore failed to satisfy the requirements for a successive § 2255 motion and

we AFFIRM the district court’s denial of that motion. We also GRANT his motion to

consolidate the two appeals and AFFIRM the district court’s denial of Mr.

Galbreath’s motion to reduce his sentence.

                                             Entered for the Court


                                             Carolyn B. McHugh
                                             Circuit Judge




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