United States v. Peterman , 644 F. App'x 829 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 1, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-6042
(D.C. No. 5:14-CR-00232-M-1)
ROGER HAROLD PETERMAN, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, GORSUCH, and MORITZ, Circuit Judges.
_________________________________
Roger Peterman pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g), and the district court imposed an enhanced sentence
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based on its
determination that Peterman had three qualifying prior convictions. Peterman
challenges the classification of two of those convictions as ACCA qualifying
felonies. We reject Peterman’s challenge to one conviction, deem his challenge to the
second conviction waived, and affirm his sentence.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. See Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
First, Peterman contends the district court erroneously determined, over his
objection, that his conviction for possession of marijuana with intent to distribute is a
serious drug offense. But the judgment expressly reflects Peterman’s state conviction
for possession of marijuana with intent to distribute and that the district court
sentenced him to a 10-year prison term.1 That is all the ACCA requires. 18 U.S.C.
§ 924(e)(2)(A)(ii). And we reject Peterman’s argument that, due to a clerical error,
the state judgment reflects a conviction for possession with intent to distribute
instead of his actual conviction of simple possession. As the district court held, this is
an improper attack on the state judgment. See United States v. Smith, 652 F.3d 1244,
1246 n.3 (10th Cir. 2011) (noting that defendant in a federal sentencing proceeding
generally may not collaterally attack validity of prior state conviction); Head v. State,
146 P.3d 1141, 1149 (Okla. Crim. App. 2006) (explaining under Oklahoma law a
clerical error in judgment must be corrected through order nunc pro tunc issued by
state sentencing court). Thus, we conclude the district court didn’t err in classifying
the marijuana conviction as a serious drug offense.
Next, Peterman contends the district court erroneously classified his
conviction of assault and battery of a police officer as a violent felony in light of
Johnson v. United States, 135 S. Ct. 2551 (2015). Because Johnson was decided
while this appeal was pending, Peterman didn’t raise this argument below. We
extended the time for filing appellate briefs to allow both parties to address Johnson.
1
Notably, the related charging document and plea documents reflect the same
crime—possession of marijuana with intent to distribute.
2
In Johnson, the Supreme Court held that imposing an enhanced sentence under
the ACCA’s “residual clause” definition of “violent felony” violates due process. 135
S. Ct. at 2563. Both parties assume the district court relied on the ACCA’s residual
clause to classify Peterman’s assault and battery conviction as a violent felony. But
even if we assume the same, Peterman didn’t argue in his opening brief that this
alleged Johnson error warrants reversal under our plain-error standard. And, after the
government filed a response brief pointing out this omission, Peterman didn’t file a
reply brief. Thus, Peterman waived appellate review of the alleged Johnson error.2
See United States v. Lamirand, 669 F.3d 1091, 1100 n.7 (10th Cir. 2012) (stating “the
failure to argue for plain error and its application on appeal . . . surely marks the end
of the road for an argument for reversal not first presented to the district court”
(quoting Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011))).3
For these reasons, we affirm Peterman’s sentence.
Entered for the Court
Nancy L. Moritz
Circuit Judge
2
Because Peterman waived review, we dismiss as moot the government’s
second motion to supplement the record with documents related to this issue.
3
This court recently stated that “when an error is obvious enough and satisfies
Rule 52(b), an appellate court, in its discretion, may recognize the error
notwithstanding briefing deficiencies.” United States v. Courtney, No. 15-2015, 2016
WL 930579, at *2 (10th Cir. Mar. 11, 2016). But we decline to exercise that
discretion here because, unlike the defendant in Courtney, Peterman didn’t address
plain error in a reply brief; rather, Peterman didn’t address plain error at all.
3