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United States v. Couchman

United States Court of Appeals, Tenth Circuit

January 10, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
CHARLES DEAN COUCHMAN, Defendant-Appellant.

         D.C. Nos. 5:16-CV-00649-HE and 5:08-CR-00073-HE-1 (W.D. Okla.)

          Before LUCERO, O'BRIEN, and MORITZ, Circuit Judges.

          ORDER DENYING CERTIFICATE OF APPEALABILITY

          TERRENCE L. O'BRIEN, UNITED STATES CIRCUIT JUDGE

         In 2008 Charles Dean Couchman pled guilty to being a felon in possession of a firearm and ammunition. 18 U.S.C. § 922(g)(1). Relevant here, his criminal history included: (1) a 1992 and 1994 conviction from the State of Oklahoma for burglary in the second degree; (2) a 1993 conviction from the State of Oregon for burglary in the first degree; and (3) a 2002 conviction from the State of Missouri for burglary in the second degree.[1]

         The probation officer concluded these convictions constituted "violent felon[ies]" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), exposing him to a mandatory minimum sentence of 15 years (180 months) imprisonment. Id. § 924(e)(1). At the time of sentencing, the ACCA defined "violent felony" as "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" (the elements clause); (2) "is burglary, arson, or extortion, [or] involves use of explosives" (the enumerated-offense clause); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the residual clause). Id. § 924(e)(2)(B). The probation officer calculated an advisory guideline range of 180-210 months imprisonment

         Couchman objected to the application of the ACCA, arguing his prior convictions did not constitute violent felonies because his prior crimes were not violent. The judge disagreed. While he "couldn't tell for certain [whether one of the burglary convictions] involved a structure, " the other three convictions plainly qualified as violent felonies under Tenth Circuit precedent. (R. at 41.) He elaborated: "[T]he decisions don't require that there be actual violence in particular in connection with a particular offense, but rather if the burglary, for example, involves a building or structure that's deemed to involve a sufficient risk of violence for the nature of it. In any event, . . . Congress [h]as concluded that those offenses should be considered violent offense[s] for purposes of the [ACCA]." (Id.) The judge sentenced him to incarceration for 192 months.

         Couchman filed a direct appeal. See United States v. Couchman (Couchman I), 329 Fed.Appx. 836');">329 Fed.Appx. 836 (10th Cir. 2009) (unpublished). His counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating his belief that no reasonable grounds for appeal existed, and moved to withdraw. Id. at 837. Couchman responded to the brief with a letter. Id. Other than complaining about his attorney, he did not identify any issues for appeal. Id. Nevertheless, pursuant to our duty under Anders, we reviewed the record and identified several potential appeal issues. Id. Relevant here, we addressed whether the judge had correctly decided that Couchman had the requisite three prior violent felony convictions to qualify for an enhanced sentence under the ACCA. Id. Citing United States v. Hill, 53 F.3d 1151, 1154-55 (10th Cir. 1995), we concluded his burglary convictions qualified as violent felonies under the ACCA because the charging documents showed they satisfied generic burglary, i.e., they involved burglary of a building or structure. Id. at 838. That holding would seemingly resolve any debate about whether his sentence was enhanced under the enumerated-offense clause or the residual clause -it was enhanced because of his prior burglaries, the type of crime specifically enumerated in the statute. However, Couchman wants to add an improbable spin, so we soldier on.

         On March 29, 2013, Couchman filed his first 28 U.S.C. § 2255 motion claiming (1) counsel was ineffective for failing to argue his convictions violated the Second Amendment and (2) his convictions violated the Eighth Amendment and the Ex Post Facto Clause. The judge denied the motion and we denied a certificate of appealability (COA). See United States v. Couchman (Couchman II), 521 Fed.Appx. 636 (10th Cir. 2013) (unpublished).

         On June 26, 2015, the United States Supreme Court decided Johnson v. United States (Johnson II), ___ U.S. ___, 135 S.Ct. 2551 (2015). In Johnson II, it held the residual clause of the ACCA to be unconstitutionally vague. Id. at 2557, 2563. It left untouched the remainder of the ACCA's definition of "violent felony" including the enumerated-offense clause. Id. at 2563. On April 18, 2016, the Supreme Court made Johnson II's holding retroactive to cases on collateral review. Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, 1265 (2016).

         Relying on Johnson II, Couchman filed a motion with this Court on June 2, 2016, for leave to file a second or successive § 2255 motion. We granted authorization. His second § 2255 motion claimed that because the residual clause was invalid, his burglary convictions could only qualify as violent felonies under the ACCA if they satisfied either the elements clause or the enumerated-offense clause; according to him, they met neither. Specifically, he claimed they did not constitute violent felonies under the enumerated-offense clause because the burglary statutes under which he was convicted are broader than generic burglary. That is a new argument having no relevance to the only issue properly posited here-whether he was sentenced under the enumerated-offense clause. As the district judge realized, whether his sentence was proper under that clause is an issue he could have presented earlier and one not contemplated by Johnson II, which only provides relief for those sentenced under the residual clause.

         The judge denied Couchman's motion. He concluded Couchman's sentence was enhanced based on the enumerated-offense clause, not the residual clause. As a result, Johnson II was inapplicable. Although Couchman tried to rely on Mathis v. United States, --- U.S. ---, 136 S.Ct. 2243 (2016), to explain why his burglary convictions did not satisfy the enumerated-offense clause, the judge declined to address Mathis because this Court had only granted him permission to file a successive § 2255 motion based on Johnson II. The judge also denied a COA.

         Couchman renews his request for a COA with this court. A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted).

         Couchman argues his sentence was enhanced based on the residual clause, not the enumerated-offense clause. According to him, the judge's contrary conclusion is belied by the record, which reveals the judge relied, at least in part, on the residual clause in concluding his prior convictions constituted violent felonies under the ACCA. We see it differently. Both the sentencing record and the "relevant background legal environment at the time of sentencing" show Couchman's sentence to have been enhanced based on the enumerated-offense clause. See United States v. Snyder, 871 F.3d 1122, 1129 (10th Cir. 2017) (quotation marks omitted).

         A. The ...


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