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

                            FOR THE TENTH CIRCUIT                             July 10, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-7033
                                                  (D.C. Nos. 6:15-CV-00460-JHP and
 SHAWN DEWIGHT WARTSON,                                 6:12-CR-00072-JHP-1)
                                                              (E.D. Okla.)
       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.**
                   _________________________________

      Shawn Dewight Wartson appeals the district court’s denial of his 28 U.S.C.

§ 2255 petition. He claims that the district court erred by treating his Oklahoma

felony conviction for conspiracy to shoot with intent to kill as a violent felony under

the elements clause of the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e)(2)(B)(i). We agree with Mr. Wartson. Exercising jurisdiction under 28




      *
         This order and judgment is not binding precedent, except under the doctrines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.
      **
         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.
U.S.C. §§ 1291 and 2253(a), we vacate his sentence and remand for an expedited

resentencing hearing.1

                                  BACKGROUND

      In 2012, Mr. Wartson pleaded guilty to the federal charge of felon in

possession of a firearm. At sentencing, with no objection from Mr. Wartson, the

district court adopted the probation officer’s recommendations contained in the

presentence investigation report (PSR). As a result, the court sentenced Mr. Wartson

to a statutory mandatory-minimum 15 years’ imprisonment, followed by five years of

supervised release.

      The ACCA requires this enhanced sentence for defendants with at least three

previous convictions for violent felonies or serious drug offenses or both. See 18

U.S.C. § 924(e)(1). The ACCA defines a “violent felony” as:

      [A]ny crime punishable by imprisonment for a term exceeding one year,
      or any act of juvenile delinquency involving the use or carrying of a
      firearm, knife, or destructive device that would be punishable by
      imprisonment for such term if committed by an adult, 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[.]

924(e)(2)(B). Here, the PSR concluded that Mr. Wartson’s three Oklahoma

felony convictions are violent felonies under the ACCA. They include (1) a 2010

conviction for assault and battery with a dangerous weapon; (2) a 2010 conviction for


      1
        Mr. Wartson has already served more prison time than called for under the
top of his non-ACCA advisory guideline range.
                                           2
conspiracy to shoot with intent to kill; and (3) a 2011 conviction for second-degree

burglary. This appeal concerns Mr. Wartson’s 2010 conspiracy conviction.

      In 2015, the United States Supreme Court decided Johnson v. United States,

(2015). In Johnson, the Court invalidated the ACCA’s residual

clause under the Fifth Amendment. 

(holding that the residual clause’s

language—“otherwise involves conduct that presents a serious potential risk of

physical injury to another”—is void for vagueness).

      Soon after Johnson, Mr. Wartson filed a pro se 28 U.S.C. § 2255 petition to

vacate his sentence. As grounds, he claimed that his 2010 Oklahoma felony

conviction for conspiracy to shoot with intent to kill no longer qualified as a violent

felony. According to Mr. Wartson, this meant that he no longer qualified for an

ACCA-enhanced sentence.

      The district court denied Mr. Wartson’s petition. The court ruled that Mr.

Wartson’s Oklahoma conviction for conspiracy to shoot with intent to kill qualified

as a violent felony under the ACCA’s elements clause,2 “because shooting with intent

to kill obviously involves the use of physical force against another human being.” See

R. Vol. I at 92–93 (internal quotation marks omitted). So the court denied Mr.

Wartson’s petition and denied a certificate of appealabilty (COA).




      2
         Both parties agree that Mr. Wartson’s conspiracy conviction does not qualify
as a violent felony under the enumerated-offenses clause contained in
§ 924(e)(2)(B)(ii).
                                           3
       We granted Mr. Wartson a COA. We also ordered that Mr. Wartson be

appointed counsel, and we directed the parties to brief a single issue: “On what basis

is Wartson’s earlier Oklahoma felony conviction for conspiracy to shoot with intent

to kill a violent felony under 18 U.S.C. §924(e)(2)(B)(1)’s elements clause?”

                                       ANALYSIS

       We review de novo a district court’s decision whether a conviction qualifies as

a violent felony under the ACCA. United States v. Degeare, 

, 1245

(10th Cir. 2018); see also United States v. Snyder, 

, 1125 (10th Cir.

2017) (“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.”)

(internal quotation marks omitted). For the government to prevail, Mr. Wartson’s

conspiracy conviction must qualify under § 924(e)(2)(B)’s elements clause, which

requires that the conspiracy conviction “ha[ve] 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).

       In concluding that Mr. Wartson’s conviction for conspiracy to shoot with

intent to kill met this condition, the district court relied on United States v. Trent, 

(10th Cir. 2014) abrogated on other grounds by Mathis v. United States,

(2016). But in our COA order, we noted that Trent answered a

different question: whether a state-drug-conspiracy conviction qualified as a “serious

drug offense” under § 924(e)(2)(A)(ii). And we further noted that the ACCA’s

serious-drug-offense definition is considerably broader than its definition of violent

                                            4
felony, capturing state drug felonies “involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance[.]” 18

U.S.C. § 924(e)(2)(A)(ii) (emphasis added). The violent-felony definition has no

absorbent word like “involving.”

       Even so, the government still clings to Trent, arguing that Trent’s logic and

reasoning apply equally in the violent-felony context. Ignoring that the violent-felony

definition lacks the extension that the word “involving” provides, the government’s

brief simply declares that “[u]nder the categorical approach, Defendant’s prior

conviction involves the use or threatened use of physical force.” Appellee’s Resp. Br.

at 8 (emphasis added). This neglects the statutory command that the predicate crime

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

force.” 18 U.S.C. § 924(e)(2)(B)(i). And later, along the same line, the government

simply asserts that the plain language of Mr. Wartson’s statutes of conviction

establish a violent felony “because Shooting With Intent to Kill obviously involves

and contemplates the use of physical force against another human being.”3

Appellee’s Resp. Br. at 13 (emphasis added). We reject the government’s attempted

redraft of Congress’s language.



       3
         We agree that a conviction for the Oklahoma felony of shooting with intent
to kill has as an element the use, attempted use, or threatened use of physical force.
See United States v. Byers, 739 Fed. App’x 925, 929 (10th Cir. 2018) (“The crime of
shooting with the intent to kill . . . clearly has as an element the use of violent force,
capable of causing physical pain or injury to another person.”). But Mr. Wartson
wasn’t convicted of the substantive crime. Instead, he was convicted of conspiring to
commit this crime.
                                            5
      Mr. Wartson redirects us to the real issue in the case—whether his conspiracy-

to-shoot-with-intent-to-kill conviction “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). As noted above, the government cannot meet this statutory

requirement by substituting “involving” or “contemplating” for “has as an element.”

The proper analysis is whether Mr. Wartson’s conviction for conspiracy with intent

to kill has the required element.

      We employ the modified-categorical approach to discern the elements of the

crime that Mr. Wartson conspired with others to commit, i.e., shooting with intent to

kill. 

–61. Once the elements are established, we apply the

categorical approach to determine if the elements categorically match the ACCA’s

definition of a violent felony. See United States v. Titties, 

, 1266 (10th

Cir. 2017) (“Once the relevant elements are identified, the court applies the

categorical approach.”). Importantly, we “consider only the statutory definition, not

the underlying facts of conviction,” United States v. Ontiveros, 

, 535

(10th Cir. 2017). In addition, we “presume that the conviction rested upon nothing

more than the least of the act criminalized, and then determine whether even those

acts are encompassed by the [statutory definition].” Moncreiffe v. Holder, 

, 190–91 (2013) (brackets and internal quotation marks omitted). In other words,

the ACCA functions as an “on-off switch,” i.e., a crime qualifies “as a predicate

offense in all cases or in none.” Descamps v. United States, 

, 268

(2013).

                                           6
      We now turn to the elements of the crime of conviction at issue: conspiracy to

shoot with intent to kill. The elements of Oklahoma’s conspiracy statute are:

      First, an agreement by two or more persons,

      Second, to commit [the Crime or Conduct Charged],

      Third, the defendant(s) (was/were [a] party(ies) to the agreement at the
      time it was made)/(knowingly became [a] party(ies) to the agreement at
      some time after it was made),

      Fourth, an overt act by one or more of the parties performed subsequent
      to the formation of the agreement.

Appellee’s Resp. Br. at 11-12 (citing Okla. Unif. Jury Instr. CR 2-17). In turn, the

Oklahoma Uniform Jury Instructions require that the conspirators agree to violate

each element of the underlying crime. Okla. Unif. Jury Instr. CR 2-10. Accordingly,

we apply the modified-categorical approach to discern which elements formed the

object of the conspiracy, i.e., shooting with intent to kill. 

–61.

In 2010, the elements of Oklahoma shooting with intent to kill were (1) intentionally

and wrongfully (2) shooting another person with or discharging any kind of firearm

(3) with the intent to kill any person, including an unborn child. Okla. Stat. tit. 21,

§ 652(A) (2010).

      These elements show that Mr. Wartson could have been convicted of

Oklahoma’s crime of conspiracy to shoot with intent to kill without ever using

physical force against another person. Defendants can conspire to shoot with intent to

kill and later lose their nerve or even come to their senses before shooting anyone or

discharging a firearm. Thus, the statute at issue does not categorically have as an


                                            7
element the actual use of force. See United States v. Deiter, 

, 1214

(10th Cir. 2018) (recognizing that we have generally held that conspiracy and attempt

crimes are not violent felonies under the ACCA).

      The government contends that Oklahoma’s requirement that it prove an overt

act satisfies the need to prove that the crime has as an element the use of physical

force.4 But not all qualifying overt acts would categorically require a jury to find

beyond a reasonable doubt that a defendant used physical force. See Okla. Unif. Jury

Instr. CR 2-18 (defining “overt act” as “any act” which “is done for the purpose of

furthering or carrying out the ultimate intent of the agreement”). Accordingly, as a

categorical matter, the overt-act requirement does not elevate the crime to one that

has as an element the use of physical force against another person.

      Finally, Mr. Wartson’s conspiracy conviction does not have as an element the

threatened use of force. We have recognized that whether forming an agreement to

commit a violent felony constitutes “threatened use of force” under the ACCA poses

a “more problematic” question. United States v. King, 

, 803 (10th Cir.

1992). “Read broadly, the formed intent of the conspirators does constitute an

inchoate ‘threat’ to both the impending target of the contemplated felony and to

society as a whole.” 

we held in King, the term “threatened use of force” as



      4
         The government argues that Mr. Wartson’s 2010 conspiracy conviction
“involves the use or threatened use of force.” Appellee’s Br. at 8. The government
does not argue that Mr. Wartson’s conviction has as an element the attempted use of
force. Thus, we do not consider whether Oklahoma conspiracy to shoot with intent to
kill has as an element the attempted use of force.
                                            8
used in the ACCA “means both an intent to use force and a communication of that

intent.” 

Law Dictionary 1480 (6th ed. 1990), which defines

“threat” as “[a] communicated intent to inflict physical or other harm on any person

or on property”).

      Here, the Oklahoma conspiracy statute requires an agreement and an overt act.

And as we held in King, an agreement alone is insufficient to qualify as the

“threatened use of force.” 

simply agreeing to violate a criminal

statute that has as an element the use of force does not qualify as threatened use of

force under 18 U.S.C. §924(e)(2)(B)(i)). Unlike the New Mexico conspiracy statute

at issue in King, however, the Oklahoma conspiracy statute at issue here requires an

overt act. See Wright v. State, 

, 319–20 (Okla. Crim. App. 1975). But

our result is the same. As noted above, in Oklahoma an “overt act” can be “any act”

done in furtherance of the conspiracy. For example, the Oklahoma Court of Criminal

Appeals has held that an “overt act” includes merely traveling to meet a

coconspirator to discuss the details of the conspiracy. Blaylock v. State, 

, 253 (Okla. Crim. App. 1979). Thus, proof of an overt act under Oklahoma law

does not categorically require proof of King’s requisite intent to use force and

communication of the threat. See id.; 

. Thus, Mr. Wartson’s

conviction for conspiracy to shoot with intent to kill does not categorically have as an

element the threatened use of force.5


      5
        On this point, we note the government’s position in a case that the Supreme
Court recently decided, United States v. Davis, No. 18-431, ___ S. Ct. ___, 

                                   CONCLUSION

      For the above reasons, we hold that Mr. Wartson’s 2010 Oklahoma felony

conviction for conspiracy to shoot with intent to kill does not qualify as a violent

felony under the elements clause contained in 18 U.S.C. §924(e)(2)(B)(i). That

means he does not have the required three predicate violent-felony convictions to

sustain his ACCA sentence, so we vacate his sentence and remand to the district

court for an expedited resentencing hearing.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




2570623 (Jun. 24, 2019). There the Court held that 18 U.S.C. § 924(c)(3)(B)’s
residual clause was unconstitutionally vague. 

Relevant here, the Court had
no occasion to address § 924(c)(3)(A)’s elements clause, because the government had
conceded below that the defendant’s conspiracy to commit a violation of the Hobbs
Act, 18 U.S.C. §1951, would not “necessarily require proof that a defendant used,
attempted to use, or threatened to use force.” United States v. Davis, 

,
485 (5th Cir. 2018). Notably, the government took this position despite the Fifth
Circuit’s earlier ruling that the substantive crime underlying the conspiracy—Hobbs
Act robbery—qualifies as a violent felony under § 924(c)(3)(A)’s elements clause.

                                           10