FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF OKLAHOMA (D.C. No. 6:14-CR-00042-RAW-1)
L. Derryberry, Research & Writing Specialist (Julia L.
O'Connell, Federal Public Defender, and Scott A Graham,
Assistant Federal Public Defender, with him on the brief),
Office of the Federal Public Defender, Tulsa, Oklahoma, for
A. Epperly, Assistant United States Attorney (Mark F. Green,
United States Attorney, and Edward Snow, Assistant United
States Attorney, with her on the brief), Office of the United
States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.
BRISCOE, EBEL and MURPHY, Circuit Judges.
BRISCOE, Circuit Judge.
Tommy Taylor was convicted by a jury of being a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and (2), and was sentenced to 110
months' imprisonment. On direct appeal, this court
remanded for resentencing because Taylor's sentence was
based in part on the application of the residual clause of
U.S.S.G. § 4B1.2(a)(2), which has been held to be
unconstitutionally vague. On remand, the district court
sentenced Taylor to a term of imprisonment of 87 months.
Taylor again appeals, arguing that the district court
incorrectly calculated his base and total offense levels by
improperly treating a prior state conviction as a "crime
of violence" pursuant to U.S.S.G. §§
4B1.2(a)(1) and 2K2.1(a)(4)(A). Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we reject Taylor's
arguments and affirm his sentence.
August 2014, Taylor was convicted by a jury of one count of
being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and (2). The district court
sentenced Taylor to a term of imprisonment of 110 months, to
be followed by a three-year term of supervised release. In
doing so, the district court concluded that Taylor
"ha[d] two prior [Oklahoma state] felony convictions,
" one for assault and battery with a dangerous weapon
and the other for failure to stop at a roadblock, that
qualified as "crimes of violence" under U.S.S.G.
§ 4B1.2(a) and that warranted an enhanced base offense
level under U.S.S.G. § 2K2.1(a)(2). ROA, Vol. 3 at 5.
filed a direct appeal challenging the district court's
treatment of his prior conviction for failure to stop at a
roadblock as a "crime of violence" under U.S.S.G.
§ 4B1.2(a)(2)'s residual clause. While Taylor's
direct appeal was pending, we held § 4B1.2(a)(2)'s
residual clause to be unconstitutionally vague in light of
the Supreme Court's decision in Johnson v. United
States, __U.S.__, 135 S.Ct. 2551 (2015) (holding that
the definition of "violent felony" contained in the
Armed Career Criminal Act's residual clause was
unconstitutionally vague). United States v. Madrid,
805 F.3d 1204, 1210 (10th Cir. 2015). When we considered
Taylor's appeal, we applied that holding to his case,
see Griffith v. Kentucky, 479 U.S. 314, 328 (1987)
(holding "that a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases . .
. pending on direct review or not yet final"), and
remanded to the district court with directions to vacate
Taylor's sentence and resentence him. United States
v. Taylor, 630 F.App'x 879, 881 (10th Cir. 2015)
remand, a revised presentence investigation report (PSR) was
prepared and submitted to the district court and parties. The
revised PSR set forth a base offense level of 20 pursuant to
U.S.S.G. § 2K2.1, noting that Taylor "ha[d] one
prior felony conviction for a crime of violence . . .:
Assault and Battery with a Dangerous Weapon in Muskogee
County District Court." ROA, Vol. 3 at 109 (revised PSR
at 3). The revised PSR concluded that no other adjustments
were necessary to the base offense level, and consequently
arrived at a total offense level of 20. When combined with a
criminal history score of 17 and a criminal history category
of VI, Taylor's advisory Guidelines sentencing range was
70 to 87 months. Id. at 117 (revised PSR at 11).
party objected to the revised PSR, and the district court
adopted the sentencing calculations contained therein. ROA,
Vol. 4 at 12. The district court in turn resentenced Taylor
to a term of imprisonment of 87 months, to be followed by a
three-year term of supervised release. Id. at 14.
the entry of final judgment, Taylor filed a timely notice of
appeal, Taylor argues that the district court erred in
treating his prior Oklahoma state conviction for assault and
battery with a dangerous weapon as a "crime of
violence" under U.S.S.G. §4B1.2(a)(1) and imposing
"an elevated base offense level pursuant to [U.S.S.G.]
§ 2K2.1(a)(4)(A)." Aplt. Br. at 8.
speaking, we review for abuse of discretion a defendant's
challenges to the procedural reasonableness of his sentence.
Gall v. United States, 552 U.S. 38, 46 (2007);
United States v. Worku, 800 F.3d 1195, 1201 (10th
Cir. 2015). If, however, the issue is raised for the first
time on appeal, we ...