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

                             FOR THE TENTH CIRCUIT                          June 14, 2019
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 17-6246
                                                  (D.C. No. 5:17-CR-00101-R-1)
HAROLD LEE HARBERT,                                       (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
                  _________________________________

      Harold Lee Harbert pleaded guilty to one count of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Harbert’s plea agreement

contained a waiver of appellate rights, with an exception to appeal from a judicial

determination that he is subject to the terms of the Armed Career Criminal Act,

18 U.S.C. § 924(e) (ACCA). Relying on that exception, Mr. Harbert appeals from

the district court’s determination that his Oklahoma first-degree robbery conviction



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
qualifies as a “violent felony” under ACCA. Exercising jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291, we affirm.

                                      BACKGROUND

       Following the entry of his guilty plea, the probation department prepared a

presentence report in which it recommended that Mr. Harbert be sentenced as an armed

career criminal under ACCA because he had three previous convictions that required an

enhanced sentence—two Oklahoma convictions for possession with intent to distribute a

controlled substance and one conviction for Oklahoma first-degree robbery in 1995. See

§ 924(e)(1) (“In the case of a person who violates section 922(g) . . . and has three

previous convictions . . . for a violent felony or a serious drug offense, . . . such person

shall be . . . imprisoned not less than fifteen years”).1 The district court overruled

Mr. Harbert’s objection that the 1995 Oklahoma robbery conviction was not a “violent

felony,” and sentenced him to 188 months’ imprisonment, followed by a five-year term

of supervised release. This appeal followed.

                               STANDARD OF REVIEW

       “We review de novo whether a defendant’s prior conviction qualifies as a violent

felony under the ACCA.” United States v. Ridens, 

, 1272 (10th Cir. 2015)

(internal quotation marks omitted).



       1
        There is no dispute that Mr. Harbert’s two Oklahoma convictions for
possession with intent to distribute a controlled substance are “serious drug
offense[s]” that are properly considered as predicate convictions in determining
whether Mr. Harbert should be sentenced under ACCA. See 18 U.S.C. § 924(e)(1).

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                                      ANALYSIS

      The issue on appeal is whether Mr. Harbert’s Oklahoma first-degree

robbery conviction is a “violent felony” under ACCA’s elements clause. See

§ 924(e)(2)(B)(i) (A violent felony is “any crime punishable by imprisonment for a

term exceeding one year” that “has as an element the use, attempted use, or

threatened use of physical force against the person of another.”). We apply the

categorical approach, “[t]o determine if a prior conviction qualifies as a violent

felony under the ACCA.” United States v. Harris, 

, 1263 (10th Cir.

2017), cert. denied, 138 S,Ct. 1438 (2018).

      Under the categorical approach, “a state offense is a categorical match with a

generic federal offense only if a conviction of the state offense necessarily involved

facts equating to the generic federal offense.” Moncrieffe v. Holder, 

,

190 (2013) (brackets, ellipses, and internal quotation marks omitted). In other words,

to qualify as a “violent felony” under ACCA, Oklahoma’s 1995 first-degree robbery

statute must have as an element, the “use, attempted use, or threatened use of

physical force against the person of another.” § 924(e)(2)(B)(i). In turn, physical

force under ACCA “means violent force—that is, force capable of causing physical

pain or injury to another person.” Johnson v. United States, 

, 140

(2010).

      According to Mr. Harbert, Oklahoma’s 1995 first-degree robbery statute did

not have as an element the “violent force” required under Johnson to qualify as a

“violent felony.” Specifically, Mr. Harbert argues that “[t]he only force that was

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necessary to commit Oklahoma first-degree robbery in 1995 was force sufficient to

overcome the victim’s resistance to the taking. So long as the force overcame the

victim’s resistance, the degree of force was ‘immaterial.’” Aplt. Opening Br. at 1

(emphasis added).

      We agree with the government that Mr. Harbert’s argument is foreclosed by

the Supreme Court’s recent decision in Stokeling v. United States, --- U.S. ---,

(2019). “‘[P]hysical force,’ or ‘force capable of causing physical pain

or injury’ includes the amount of force necessary to overcome a victim’s resistance.”

(citation omitted). Therefore, “[c]onstruing the language of the elements

clause in light of the history of ACCA and our opinion in Johnson . . . ,we conclude

that the elements clause encompasses robbery offenses that require the criminal to

overcome the victim’s resistance.” 

                                   CONCLUSION

      Mr. Harbert’s sentence is affirmed. We grant Mr. Harbert’s motion to submit

the case on the briefs.


                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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